2274

formulating a legal question would also not be considered by the

Court and it shall proceed as if there was an admission on that
aspect also. It held that the principle underlying order VIII Rule
5 C.P.C. does not mean that despite non filing of written
statement, Court may not call upon the plaintiff to prove his
case.
2292. In order to construe as to whether it would be a case
governed by Article 142, we find that the pleadings are
extremely vague. In fact the learned counsel for the plaintiffs
(Suit-4) also find it difficult to bring out the requisite pleadings
so as to attract Article 142 in the present case. What has been
said in para 23 of the plaint is that the cause of action for suit
arose on 23.12.1949 when Hindus unlawfully and illegally
entered the mosque, desecrated it by placing idols and thus
caused obstruction and interference with the rights of Muslims
in general of saying prayers and performing their religious
ceremonies in the mosque. The above assertions are insufficient
to constitute a case of "dispossession" or "discontinuance of
possession" of the plaintiffs (Suit-4) of the property in dispute.
Placement of idols or desecration of mosque is one thing but
dispossession of Muslims from the disputed property is another
thing. Dispossession or discontinuance contemplates a total
deprivation on the part of the person concerned who was earlier
in possession but obstruction or interference means that though
possession continue but is not smooth, peaceful and continuous
but being disturbed by others.
2293. The dictionary meaning of the word obstruction
is:
(A) In The New Lexicon Webster's Dictionary of the
English Language (1987), published by Lexicon Publications,
2275
Inc. at page 693:
ob-struc-tion-an obstructing or being obstructed;
something which obstructs; prevention of legislative
enactment by filibuster
(B) In Oxford Advanced Learner's Dictionary of Current
English first published 1948 by Oxford University Press, at
page 1050:
ob-struc-tion--1. the fact of trying to prevent sth/sb from
making progress: the obstruction of justice. He was
arrested for obstruction of a police officer in the execution
of his duty. 2. the fact of blocking a road, an entrance, a
passage, etc: obstruction of the factory gates. The
abandoned car was causing an obstruction. 3. something
that blocks a road, an entrance, etc. It is my job to make
sure that all pathways are clear of obstruction. 4.
something that blocks a passage or tube in your body; a
medical condition resulting from this.
(C) In Mitra's Legal & Commercial Dictionary 5
th
Edition
(1990) by A.N. Saha, published by Eastern Law House Prv.
Ltd., at pages 517:
Obstruction. The word 'obstruction' connotes some overt
act in the nature of violence or show of violence. It cannot
be said that a man obstructed another if that man runs
away from other. Phudki v. State AIR 1955 All 104: 16 Cr
LJ 278.
Section 283 of the Indian Penal Code punishes a
person who causes obstruction to another person in any
public way. Anybody obstructing a public service in the
discharge of his public duties is punishable under s. 186 of
the Code.
2276
Obstruction to a driver is banned by s. 83 of the
Motor Vehicles Act 1939. the leaving of a vehicle in a
dangerous position so as to obstruct other users of the road
is prohibited by s. 81 of the Act.
(D) In The Chambers Dictionary (Deluxe Edition) (1993)
published by Allied Chambers (India) Limited New Delhi, at
pages 1167:
obstruc'tion the act, or an act of obstructing; a state of
being obstructed; that which hinders progress or action; an
obstacle; the offence of obstructing another player;
opposition by delaying tactics
(E) In P Ramanatha Aiyar's The Law Lexicon with Legal
Maxims, Latin Terms and Words & Phrases, Second Edition
1997), published by Wadhwa and Company Law Publishers, at
page 1338:
Obstruction. An obstacle, an impediment, a hindrance,
that which impedes progress. Prevention, making hard,
retarding the progress of any business. The word
'obstruction' in S. 186 of the Penal Code is not confined to
physical obstruction only. Threats of violence made in such
a way as to prevent the public servant from carrying out
his duty might easily amount to obstruction of the public
servant. (1937) AWR 1179=1937 ALJ 1344.
2294. Similarly the meaning of term interference in
various dictionaries is:
(A) In The New Lexicon Webster's Dictionary of the
English Language (1987), published by Lexicon Publications,
Inc. at page 504:
in-ter-fer-ence-the act of interfering; (games)
obstruction, e.g. (football) the illegal blocking of the
2277
receiving of the pass
(B) In Oxford Advanced Learner's Dictionary of Current
English first published 1948 by Oxford University Press, at
page 813:
inter-fer-ence-1. the act of interfering, 2. interruption of
a radio signal by another signal on a similar wavelenght,
causing extra noise that is not wanted.
(C) In The Chambers Dictionary (Deluxe Edition) (1993)
published by Allied Chambers (India) Limited New Delhi, at
pages 872:
interfer'ence-the act of interfering; the effect of
combining similar rays of light, etc.
(D) In Black's Law Dictionary Seventh Edition (1999),
published by West, St. Paul, Minn., 1999, at page 818-819:
interference, 1. The act of meddling in another's affairs.
2. An obstruction or hindrance. 3. Patents. An
administrative proceeding in the U.S. Patent and
Trademark Office to determine which applicant is entitled
to the patent when two or more applicants claim the same
invention. This proceeding occurs when the same invention
is claimed (1) in two pending applications, or (2) in one
pending application and a patent issued within a year of
the pending applications' filing date.
(E) In P Ramanatha Aiyar's The Law Lexicon with Legal
Maxims, Latin Terms and Words & Phrases, Second Edition
1997), published by Wadhwa and Company Law Publishers, at
page 970:
Interference. The action or fact of interfering or
intermeddling.
2295. We are not trying to read the pleadings in plaint of
2278
Suit-4 by construing the words and sentences like that of a
statute. But in the absence of anything otherwise to suggest from
the entire pleadings, we cannot help the plaintiffs by filling in
the gaps and cover up the lacuna. What actually has happened is
a matter of fact and better known to the plaintiffs. If the
plaintiffs themselves have not been able to say in clear and
categorical terms that they are dispossessed or their possession
is discontinued, we are clearly of the view that at least this Court
cannot provide such pleadings for the plaintiffs and read the
requisite averments in pleadings i.e. the plaint.
2396. The time runs from the date of dispossession or
discontinuance in the case of Article 142 and from the date the
defendant's possession becomes adverse vide Article 144. This
in fact provides the cause of action to the plaintiff to file a suit
and that is how the limitation comes into picture and begins.
2297. A bit lack of clarity on the part of the plaintiffs
(Suit-4) in this regard we find is apparent even in the written
argument submitted by them. Instead of putting the same in our
words, we find it useful to reproduce the same. Sri M.A.
Siddiqui, while dealing with Issue No. 3 (Suit-4), has made the
following submissions in his written arguments:
3.1. Almost pleas of bar of limitation have been taken by
each of defendants in their respective written statements.
However, except a bare assertion that the suit is barred
by limitation, nothing has been said that on what
account and when it became barred. Undisputedly issue
of limitation is not a pure question of law but a mixed
question of law and fact. The facts are necessarily to be
seen in the light of the pleadings and evidence of parties.
3.2. In the plaint necessary averment regarding limitation
2279
finds place in para 21 where issuance of notice to the State
and its official and the service on 19.6.1961 - 23.6.1961 is
mentioned and in para 23 the accrual of cause of action
has been stated to be as 23.12.1949 when the idols were
stealthily and surreptitiously were kept in the building and
Muslims stood prevented from offering their prayer freely
and the relief (a) as sought in the plaint is for a declaration
that the property indicated by the letters . is mosque and
public Muslim graveyard and the relief (b) is that in case
in the opinion of the court delivery of possession is
deemed to be proper remedy a decree for delivery of
possession of the mosque and the graveyard in suit by the
removal of the idols and other articles which the Hindus
may have placed in the mosque as objects of their
worship, be passed in plaintiffs' favour against the
defendants. Vide an order of the court dated 25.5.1995
after the matter being remitted by the Hon'ble Supreme
Court vide its judgment and order dated 24.10.1994 clause
(bb) in the relief clause has also been added, wherein the
relief has been claimed that the statutory receiver be
commanded to handover the property in dispute described
in schedule "A" of the plaint by removing the
unauthorised structure erected thereon. The pleadings
have been read over again and again and a perusal of the
plaint reveals that plaintiffs felt some cloud to be casting
on their title and as such with a view to remove such an
anticipated cloud the relief for declaration as a main relief
was sought.
3.3. That Para 20 of the plaint deserves to be seen
wherein it is stated that the building in suit claimed by the
2280
Muslims as Muslim Waqf is in the possession of the
receiver holding for the real owner and would be released
in favour of the plaintiff in case the plaintiff's claim
succeeds. But if for any reason in the opinion of the court
a relief for possession is proper relief to be claimed, the
plaintiffs in the alternative pray for recovery of
possession. It has been contended on behalf of the other
side property being attached and under custody of court
receiver the possession of the receiver is of none but party
succeeding in the case and as such relief of possession
which has been half heartedly claimed is not at all
required. The great reliance has been placed on a decision
of Calcutta High Court which lays down that in the case
where property is attached in a proceedings under Section
145 Cr.P.C. there is no requirement at all for seeking the
relief of recovery of possession and the plaintiffs in the
circumstances could only seek the relief of declaration. In
this case as order of attachment has been passed on
29.12.1949 and the idols were kept on 23.12.1949 and
removal of the idols is must and as such it is submitted
that relief of possession is necessary and the plaintiffs
basing their claim on title the suit is governed by Article
142 of the Limitation Act 1908 and the period of
limitation being 12 years and the date of alleged
interference in the possession being 23.12.1949 and the
suit having been filed on 19.12.1961 the suit is very much
in time.
3.4. As regards applicability of Article 120 providing the
limitation of six years, it is submitted that Article 120
comes into play where no other article is applicable and
2281
once Article 142-144 is applicable this Article 120 could
not apply and the suit is very much within the time.
3.5. The contention of other side is that the plaintiff
stood ousted not on 23.12.1949 but on 16.12.1949 and as
such the suit is barred by time even for the purpose of
Article 142. This contention is based upon certain
averments in the written statement of two earlier suits
which read that last Juma prayer was offered on
16.12.1949 and there being no further averment of prayer
from 16.12.1949 to 22.12.1949. In 1960 the averment in
the plaint of offering prayer up to 22.12.1949 is incorrect
and deserves to be rejected.
3.6. An affidavit of one Anisurrahman, copy of which as
filed in the Ho'ble High Court at Allahabad in support of
transfer application is relied which also avers that last
Friday Prayer was offered on 16.12.1949 and the above
contention is buttressed on such averment. It is stated that
16.12.1949 was Friday and on 23.12.1949 it was again
Friday and Friday prayer comprising a larger gathering as
evident as it has come in evidence that even from
Faizabad and the adjoining area of Ayodhya city viz
Shahjahanpur etc. people came to offer Friday prayer and
as regards 5 time daily prayer that being confined to local
people, this has been a reason for such assertion.
However, assuming for a moment that even if on account
of fear no prayer was offered after 16.12.1949 that is
absolutely immaterial as regards the suit for possession
and even if a mosque is not used for 50 years, it remains a
mosque and limitation in case the suit is for possession of
such a mosque has to be reckoned from the day from
2282
which the plaintiff discontinued to be in possession. There
is lot of difference in non-user and discontinuation and as
such such an averment has got no bearing. Moreover, as
provided in sub-section (2) of Section 15 of the Limitation
Act in a suit where the notice is required under law to be
served, the period of notice has to be excluded and as such
two months being the period of notice has to be excluded
and the suit is in all corners within the period of limitation
as a notice was must as provided in Section 80 of the CPC
for defendants No. 5 to 8 and as per requirement of the
law such a notice was issued and served as such this
period of two months further has to be counted and the
suit is absolutely within time as regards Article 142/144 of
the Limitation Act 1908.
3.7. In the peculiar situation the country passed due to
partition special law was enacted extending the period of
limitation for suits for recovery of possession relating to
waqf property and this matter is expressly covered under
the provisions of the said Act and as such as regards suit
for recovery of possession seen with either angle it is
absolutely within time even assuming non offering of
prayer from 16.12.1949.
3.8. The other submission that relief of recovery of
possession being not required the suit is only and only for
a declaration and limitation for declaration Article 120 of
the Limitation Act being only 6 years, this suit for
declaration is barred by time. Now in this case it has to be
seen what is the effect of such barring. It is still insisted
that despite the Hon'ble Calcutta High Courts
pronouncement or other such verdicts the relief of
2283
possession in this regard is necessary. However, as regards
effect of not filing a suit within a period of limitation,
Section 28 of 1908 Act and Section 27 of 1963 Act does
provide "At the determination of the period hereby limited
to any person for instituting a suit for possession of any
property his right to such property shall be extinguished."
3.9. Now as regards the extinguishment of the right by
non-filing a suit for recovery of possession, only the right
is extinguished. From the side of the defendant itself it has
been strenuously contended that in the given
circumstances the property being custodia-legis relief of
possession was not at all required and as such even if the
suit has not been filed or even the plaint is rejected as
being barred by time for the purposes of declaration the
right and title of the plaintiffs continues and as such there
is no consequence of the same. In the plaint as regards
relief for declaration, in para 23 it has been specifically
stated the injuries so caused or continuing injuries and the
cause of action arising there from is renewed de die
indium. As a matter of fact such averments have not been
disputed and such plea is based on Section 23 of 1908 Act
and Section 22 of 1963 Act. Now in this case it has to be
seen that if by not filing the suit for declaration in time or
even by rejection of plaint for such plea if the same enures
to the benefit of anybody then it can be said that it has got
some value. In case not filing the suit in time produces any
result it may have some effect but if not filing the suit for
declaration is of no consequence at all the same produces
no result. Section 23 of the Limitation Act strictly applies
and as regards the fear in the mind of the plaintiffs as
2284
regards cloud being cast upon their title the cause of action
for the same is renewed day by day.
3.10. The pronouncement of Honble Calcutta High Court
as relied by the other side itself provides that the property
in custodia-legis and being so held for the benefit of the
true owner, cause of action for such a suit is renewed day
by day. In this case on 29.12.1949 an order of attachment
is passed, on 5.1.1950 the said order is effected. In
January and April 1950 two suits viz suit No. 2 of 1950
and subsequently suit no. 25 of 1950 = OOS No. 1/89 and
2/89 are filed. On 16.1.1950 an order of temporary
injunction is passed, 'issue notice and the defendants are
refrained from removing the idols and creating any
obstruction in Puja being carried on by the plaintiffs. On
19.1.1950 on behalf of the State District Government
Counsel moved an application that such an order amounts
to allowing one party and prohibiting the other party and
is bad, and the learned Civil Judge appreciated and
modified its order maintaining the order as regards
refraining from removal of the idols but restricting the
Puja as being carried on. No order prohibiting the
Muslims to offer prayer and go in the mosque has been
passed till this date but the entry being restricted being
subjected to permission of City Magistrate, or Receiver.
Now as regards the Puja as being carried on directed by
the City Magistrate an scheme was prepared, it was
approved by the City Magistrate and as per this scheme
only the Pujari appointed by receiver could go inside and
nobody else can go. The expenses of Puja are to be borne
by both the parties and said Puja as per courts order
2285
continued up to 1.2.1986. It is abundantly clear that this
order restricted right of entry of Hindus and Muslims both
and this cannot be said at all to confer any benefit to
anybody and such order being passed by the Civil Court
and being affirmed by this Hon'ble Court with the
observation that the suit be decided within a period of 6
months, the City Magistrate passed the order on 30.7.1953
that in such a situation there appears no necessity to
continue 145 Cr.P.C. proceeding and it may be kept in
abeyance till the decision of the suit and file to be
consigned to record. This situation continued up to
6.12.1992 and as such the act of ordering attachment and
attachment on the spot producing no result affecting the
title of the plaintiffs, non-filing of the suit within 6 years is
absolutely of no consequence and Section 23 of the
Limitation Act is absolutely for such a situation. Even if a
plaint is rejected for the reason of being barred by
Limitation a fresh suit is not barred and if a fresh suit is
not barred then there can be no objection to the
continuation of the suit already pending.
3.11. Order VII Rule 11 CPC provides:
"A plaint shall be rejected in the following cases:
(a) where it does not disclose the cause of action;
(b)
(c)
(d) where the suit appears from the statement in the
plaint to be barred by time any law."
Now Limitation Act being a law, the plea of bar is
based on Section 3 of the Limitation Act and it is this
clause (d) of Order VII Rule 11 which is invoked for
2286
dismissing the suit. Rule 12 provides for procedure which
reads: "Where a plaint is rejected the Judge shall record an
order to that effect with the reasons for such order." Rule
13 is little material which reads: "The rejection of the
plaint on any of the grounds here-in-before mentioned
shall not on its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of
action."
3.12. Assuming the worst that the plaint is rejected as
being barred by time limitation, then for the fresh cause
of action fresh suit being permissible, in no circumstance
the continuation of this dispute could be disputed.
3.13. As regards the embargo in Rule 13 of its own force
there is nothing to indicate that anything otherwise has
been done which may be said to preclude the plaintiffs
from filing the suit. As a matter of fact till 7.2.1993 there
was no encroachment on the right of the plaintiffs. The
Ordinance providing for acquisition and the subsequent
Act No. 33 of 1993 takes away the right of the plaintiffs
even their title is snatched away. Such action was
immediately challenged by moving applications on behalf
of the plaintiffs in this suit, thereafter the Hon'ble
Supreme Court requisitioned all the files and on
24.10.1994 order was passed, and thereafter, the pleadings
have been amended and the relief (bb) has been added
which is of substantive relief and cause of action for the
said relief have accrued on 7.2.1993 even in May 1995
when the relief was allowed to be added by this Hon'ble
Court it was absolutely within time, whereas the law of
pleading is that the amendment relates back to the
2287
Original pleading even ignoring for a moment even if it is
taken to be from the day on which the amendment is
allowed, the same being 25.5.1995 which is absolutely
within time.
3.14. Filing a suit involves the volition of the plaintiff. It
is why the plaintiff is said to be master of the suit and the
principle of dominus litus applies. As regards seeking a
relief for declaration now if one hears that a particular
person disputes his residence, caste, he may just file a suit
for declaration, although nothing is going to affect him
materially and for such a situation as regards the effect of
a suit being barred by time, the principle of compulsory
accrual of cause of action is to be seen as laid down by the
Hon'ble Supreme Court in its judgment as report in AIR
1960 SC page 335 and in case a person sleeps to file the
suit for such compulsory accrual cause of action only then
he has to face the consequences.
3.15. The pronouncement are that if an incorrect entry is
made in the khewat the right of the proprietor is not to be
as such affected by such incorrect entry in the khewat and
he may altogether ignore the same for decades. In the like
manner there are large number of pronouncement that a
person is not at all required to rush to court for each
invasion of his right unless the invasion is so effective
bringing his right to an end and in the case of sporadic
invasion each invasion gives a fresh right to sue.
3.16. As regards continuation of proceedings in the
revenue court, civil court or 145 Cr.P.C., if such
proceedings are not in the denial of anybody's right
altogether but are to determine as to who is entitled by
2288
initiation of such proceedings and by continuation of such
proceedings, as a matter of right no compulsory cause of
action accrues. Hon'ble Supreme Court as reported in AIR
1975 SC page 813 as extracted in AIR 1983 Gujarat page
47, as observed that both parties litigate with an
expectation to get the case decided in its favour and as
such unless the proceedings are finally decided no cause
of action arises against the same. This principle has been
followed by Gujarat High Court as reported in AIR 1983
Gujarat page 47. In such situation even the right to file suit
has been held to have occurred after the decision of the
second appeal, the second appeal also being continuation
of the suit as finding place in:
3.17. In the instant matter the 1993 Ordinance and the Act
has given a fresh cause of action and a fresh suit could be
filed. However, the relief having been sought by amending
the plaint, now the question of bar of limitation stands
excluded keeping in view the principle that amendment of
pleadings relates back to the original date of filing the suit.
AIR 1969 SC page 1267 at page 1270 and AIR 1921 PC
page 50. The courts have taken a view that by bar of
limitation even the cause of action is not destroyed and the
title of a person subsisting despite the earlier suit being
barred by time or the earlier suit having also been
dismissed as barred by time, the second suit is very much
permissible as nothing having decided as regards the right
and tile and if the title subsists there would be no
resjudicata. In many situations a suit for accounting,
declaration of rights in mortgage matters at one stage may
be held to be barred by time as for such fractional cause
2289
and as such rejecting the plaint following the mandate of
Section 3 Limitation Act and Order 7 Rule 11, but right of
the plaintiff being intact at a subsequent stage, he is very
much entitled even to bring the fresh suit. It has been held
that keeping in view the provisions of Section 3
Limitation Act and order 7 Rules 11 clause (d) a court is
bound to reject the plaint. See AIR 1932 Calcutta page
146 and AIR 1928 Oudh page 495. The Honble Supreme
Court as reported in 1997 Volume 10 Supreme Court
Cases at page 1992 in Delhi Waqf Board Versus Jagdish
Kumar Narang and others has upheld the filing of second
suite in such a situation.
3.18. The two suits of 1950 only for individual rights
and the third suit of 1959 only for the right of
management and the controversy going on and the
plaintiff of 1950 suit despite being required to convert
their suit in a representative suit, the Muslims impliedly
being prohibited to offer the prayers inside the mosque,
entry inside the mosque being subject to permission of
City Magistrate or Receiver it was thought proper to
file a declaratory suit to bring to an end the controversy
once for all. Suit No. 12 of 1961 was filed and the title of
Muslim Parties being intact there can be no bar of
Limitation by such a suit and even if such a pre-mature
suit is dismissed without adjudication on merits the title
subsisting it has got no effect.
3.19. As regards the principle of continuing cause of
action in large number of cases it has been held that if the
right has not been extinguished then on each day a fresh
cause of action arises. See AIR 1927 Madras page 568,
2290
Head Note 'C' column I page 570 and the above
proposition is based on large number of decisions as
referred in the judgment itself. In AIR 1927 All page 296
a Division Bench has taken a view that revenue court
proceedings furnish a new cause of action and by deleting
the name from revenue record the title is not extinguished
and unless the title is extinguished every fresh invasion
gives a fresh right. In the like manner the Division Bench
as reported in AIR 1934 All 539, has gone to hold that a
fresh cause of action may arise to a plaintiff and he may
bring the suit even though the prior cause of action has
arisen to him beyond the period of 6 years and this
proposition is based upon the decision of the Privy
Council. AIR 1931 PC 302, AIR 1914 All 184, AIR 1919
All page 383, Column I page 541. A Division Bench of
Patna High Court as reported in AIR 1935 Patna page 33
has laid down that as long as plaintiff's title is not lost by
adverse possession of defendant each invasion gives fresh
cause of action. AIR 1935 All 174 is also to the same
effect.
3.20. That the Orissa High Court as reported in AIR 1968
Orissa page 36 has considered the scope at length viz a
viz the proceedings under Section 145 Cr.P.C. and has
even gone to the extent that even after final decision of the
145 Cr.P.C. proceeding and thereafter not filing the suit
even then the right is not extinguished. AIR 1961 Bombay
Division Bench page 266, head note B para 32 also says
so . A Lahore High Court, AIR 1940 page 154 lays down
that if plaintiff is in possession then a suit for declaration
of plaintiffs occupancy right is maintainable and denial of
his title furnishes a fresh cause of action.
3.21.In the above circumstances in no circumstance it
2291
could be said that the instant is barred by time. Now after
1994 judgment particularly the acquisition of the land
itself by a Central Act everything has to be seen in that
light.
2298. Sri Jilani has adopted the arguments of Sri Siddiqui
stating that the question of limitation would be covered by Sri
Siddiqui. The different aspects which Sri Siddiqui has raised in
his written arguments much of which is not very clear, yet we
shall try to deal with the same as best as possible for the reason
that much of the submissions in the written arguments having
been taken for the first time therein, we had no occasion to seek
any clarification from him but still we will try to find out the
real spirit and sense in which they have been advanced and shall
deal with the same.
2299. Now, we proceed to consider applicability of Article
142 in the light of the pleadings and relief sought by the
plaintiffs and evidence placed on record. The suit has been filed
for the property identified as "ABCD" in the sketch map
appended to the plaint of the suit, which we reproduce as under:
Grave Yard
Grave Yard
2300. The outer line in this map does not include the
complete four walled structure, as it was, but some part on the
extreme southern side is left out which on south west is marked,
'Chabutara' and on south east, just behind 'Ram Chabutara'.
2301. The correctness of this map has seriously been
C
H
A
B
U
T
R
A
M
A
S
J
I
D
G
R
A
V
E
Y
A
R
D
G
R
A
V
E
Y
A
R
D
A
B
C D
17
X
21
2292
doubted by all the defendants (Suit-4) and in fact, the defendants
no. 3 and 4 along with their written statement dated
22/24.8.1962 have filed another sketch map (Annexure-8) a
copy whereof is appended herewith. For the convenience
purpose, the relevant part of the said sketch map which is now
the area of dispute with which we are concerned in view of the
Apex Court decision in Dr. M. Ismail Faruqi (supra) as a result
of the Acquisition Act of 1993 reproduced as under:
2302. A copy of the complete map is appended as Appendix
No. 2 (2A,B,C) to this judgment. It may also be mentioned that
part of the property shown in this map on the southern side as
"CDKL" and the entire part just opposite on the south eastern
side parallel to "CDKL" has not been shown in the map
appended to the plaint (Suit-4) and therefore, this part has been
left for claiming any relief and cannot be treated to be a part of
property in dispute for the purpose of Suit-4.
2303. The sketch map filed by defendants no.3 and 4
extract whereof is quoted above, is from the map prepared by
Sri Shiv Shanker Lal, Advocate Commissioner on 25
th
May
1950, pursuant to an order passed by Civil Judge, Faizabad in
Suit-1, appointing him as Commissioner for preparing the site
2293
plan and submit his report after spot inspection thereof. Besides
above, there is another map which is part of record prepared in
Suit 1885, filed by Sri Gopal Sahai, Amin, Commission
appointed by the Sub-Judge, Faizabad, copy whereof is
appended herewith, and according to the said map the disputed
property was as under:
A copy of the complete map is appended as Appendix No.
3 and 3A to this judgment.
2304. There is one more record which may be taken note
of at this stage. The plaintiffs (Suit 4) in order to prove two
documents i.e. letter issued by the District Magistrate, Faizabad
in December, 1949 moved an application no. 20(O) of 2002 for
summoning the original record from the State Government.
Pursuant thereto the District Magistrate, Faizabad produced a
file containing official correspondence and other documents
which was placed under a sealed cover by this Court's order
dated 29.05.2009.
2294
2305. The aforesaid file contains a letter dated 16
th
December, 1949 of the District Magistrate, Faizabad
accompanied by a blue print of the map of the disputed site duly
scaled. The position of various structures shown therein is not in
any manner different than what is contained in the two maps,
one prepared by Gopal Sahai Amin in Suit 1885 and another by
Sri Shiv Shankar, Court's Commissioner in Suit-1 on
25.05.1950.
2306. Since it a scaled map, having been prepared by
Government authorities duly signed by the City Magistrate
Faizabad, we find no reason not to place reliance thereon
particularly in view of the power possessed by this Court under
Section 165 read with 35 of the Evidence Act, 1872. The
position shown in this map is as under:
A complete map is being appended as Appendix No. 4
to this judgment. Map of Ayodhya showing distances from
disputed site is also filed as Appendix No. 4A and 4B.
2307. We have referred to and relied on the above map
prepared by the District Authorities as long back as on 16
th
December, 1949 which has become available to us pursuant to
2295
the order issued to the authorities for production of certain
record. Along with the said record, the above map is made
available to the Court. Whether such a document can be utilized
or not, which is not an evidence produced by any of the parties,
we find the power vested in the Court by virtue of Section 165
of Evidence Act.
2308. The chief function of a judge is to see that justice is
done between parties. For inaction or flaw of the parties, the
Court should not be guilty of defeating the ends of justice due to
lack of information. The position of a judge is not that of a
moderator between contestants in a game with no inclination to
interfere till the violation of rules. He has a much superior duty
to perform which is commonly believed by the people in India
the 'divine function'. The proceedings are not only to be
conducted strictly in accordance with law but it is the duty of a
judge to administer justice and to find out the truth. We are not
supposing even for a moment that the judge are being given a
carte blanche by which the rules of evidence may be relaxed or
set at naught. The aid of the section is invoked only with the
object of discovering relevant facts or obtaining proper proof of
such facts. A judge must always keep in mind that every trial is
a voyage of discovery in which truth is the quest.
2309. In Govind Raghunath Sawant Vs. B.A. Kakade &
Anr. 1975 ILR Bombay 829 at page 835 observed that Section
165 confer powers on every court to compel any party to
produce any document to meet the ends of justice subject to the
restrictions mention in that section.
2310. Similarly in Shankar Lal & Anr. Vs. Mahbub
Shah & Anr. AIR 1923 Oudh 59, the Court said :
"...it may also be pointed out that under section 165 of the
2296
Evidence Act, the Judge may himself, in order to discover
or obtain proof of relevant facts, order the production of
any document where Order 13, rule 1 and 2, or section 151
of the Civil Procedure Code do not serve his purpose."
2311. The record in fact has been summoned pursuant to
the application no.20(O) of 2002 filed on behalf of the plaintiffs
(Suit-4) praying for production of certain documents
constituting correspondence between the State Government and
District Magistrate, Faizabad pertaining to entry of 1949. The
Government filed copies of two letters dated 26
th
December,
1949 and other documents could not be produced. Thereafter
pursuant to our order dated 15
th
May, 2009 and 26
th
May, 2009
the District Magistrate, Faizabad produced the above file and we
kept it in the custody of the Court in sealed cover after having
prepared copies of the documents contained in the file and
providing the same to the State Government. The
correspondence between the State and the District Magistrate,
Faizabad in December, 1949 has also been referred in the
judgment of this Court in Mohd. Hashim Vs. State of U.P. &
Ors. UPLBEC Vol.1 576 at page 593 and 656 to find out the
spot situation in December 1949. The map sent by the District
Magistrate, Faizabad to the State Government along with his
letter dated 16
th
December, 1949, which is official document,
comes within the definition of "public document" can be looked
into particularly when it corroborates the already available maps
prepared by the Court's Commissions in the two suits i.e. Suit
1885 and Suit-1.
2312. It is not in dispute that the entire disputed area
ABCD consist of two parts, (1) inner court, which included the
disputed building and, (2) outer courtyard. This division of the
2297
disputed premises in the inner courtyard and outer courtyard
came to exist in 1856-1857 when it is said that an iron-grilled
wall was erected separating the disputed building along from the
other constructed parts including the Chabutara called Ram
Chabutara. The exact date or period is not on record nor the
parties could throw any light thereon except that its existence
has been noticed in P. Karnegi's Historical Sketch (supra)
published in 1870 and that shows that it was constructed
sometimes after 1855 and also admitted by Mohd. Asghar,
defendant no.2 in Suit 1885 in his written statement.
2313. Whether the building in dispute was constructed in
1528 AD or not are the issues we have dealt with separately. We
have found that there is no reliable evidence to prove that the
building in dispute was constructed in 1528 A.D. by Babar or at
his command or instance by Mir Baqi or anyone else. The entire
belief in this regard is based on certain Gazetteers and
documents available from the commencement of 19
th
century
and they, in turn, are founded on the inscriptions, the text and
the time of fixation whereof has not been found reliable.
2314. Be that as it may, even if for the purpose of the
issues in question we assume that the building in dispute was so
constructed in 1528 A.D., there is no evidence whatsoever that
after its construction, it was ever used as a mosque by Muslims
at least till 1856-57. Sri Jilani fairly admitted during the course
of arguments that historical or other evidence is not available to
show the position of possession or offering of Namaz in the
disputed building at least till 1855. He has also disputed
seriously the alleged riots of 1855. For the time being we do not
intend to concentrate on this aspect whether this denial of Sri
Jilani and Siddiqui and other Muslim counsels about 1855 riot is
2298
correct or not and proceed to consider further material and other
aspects.
2315. The first document which Sri Jilani could place
before us to show that the building in dispute was in possession
of Muslims in its entirety is Exhibit 19 (Suit 1) (Register 5
Page 61-63). It is a report of Sheetal Dubey, Thanedar dated
28
th
November, 1858 complaining about the worship offered by
a Nihang Singh Fakir Khalsa in the middle of the Masjid Janam
Asthan and also erecting a religious symbol (flag) thereat. He
says that 25 Sikhs were also present for erection of the religious
flag at the Masjid Janam Asthan. The complaint reads as under:


( )

i-n i|n ii i i -iii zs -
srs ; o - -i o ss | ii i i i ii i i
lii -l- - -ii n - l r | i ii - r~i
i- i - (i - i- ) ni r | i nr| li
ii -i ii r l- srs ; o
n| i-n,
i i i i - --| lr n lr | iii il
- ~ i | -l - -ii r i i n niil
2299
l r - li i lii | ini ii li i i|
li i| i-n lr i n n ii lii ri r|
il ii li| i ni in ; i i ii ri i i|
n
|
l | i|n ii i i -i ii zs - srs ;
(Hindi Transliteration)
"Copy of the application of Sheetal Dubey Thanedar
Oudh, dated November 28, 1858, along with the
application of Thanedar Oudh for re-erecting symbol
within the Masjid Janam Sant Tek Singh Faqir Khalsa
resident of Mohalla Ram Kot (Kot Ramchandra Pargana
Haweli, Oudh, Tahsil and District Faizabad. Dated
December 15, 1858.
Gareeb Parwar salamat Khuda wand,
Today Mr. Nihang Singh Faqir Khalsa resident of
Punjab, organised Hawan and Puja of Guru Govind
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.
Applicant.
Your obedient servant
Sheetal Dubey, Thanedar Oudh
Dated November 28, 1858.
2316. This document only shows worship by a non-
Muslim inside the building in dispute. We find no help from the
above document in support of the plaintiffs' case that the
Muslims were offering Namaz in the building. The report does
not say that erection of symbol and Havan and Puja by the said
non-Muslim person was complained of by Muslims as
obstructing in offering Namaz.
2300
2317. Exhibit 20 (Suit-1) (Register 5 Page 65-68B) is a
complaint dated 30
th
November, 1858 submitted by Syed Mohd.
Khateeb Muazzim Masjid Babari at Oudh, i.e., Ayodhya. This
document has been heavily relied by both the parties. It says:









------
















2301





( )




ii-n -i r-- i n| -il -l- i| i
i -i ii so - srs ; o - -i o ss - nili |
ii i i i ii i i lii -l- - -ii -rn
lr n l r | iii -ir~i i- i - (i - i- ) ni
r | i nr| l i ii - r l- srs ; o
n| il ri i-n i i| i ri |
r i r l - --| lr n lr | i lii - il -
i (in-i i-| iln - -ii i| i
r | | -l- i| i i | -ri -- ni
l-- -| i | ri n n i i -i- |
i |n r ii| ilni i li r ni
-l - - ri + ni -l - ni
| r -i r i r r | ni -| i n
| n i l i i n| n ;-ni i l i r
i | n i i i - ni
i n i i l ni i i | r i ri - -
- r i i -l - - i i i - i - l i i
r il -ii r - i- ;i i r l |r ~- l in|
r r r ;i- n r r -il | r |
- - ;l-ni iiir| i - n ir r l r| i; |
n i ni (-|) n i ri | ni ni
i i i rini i i| - i- ni i r -l- - i-
2302
;in - -ii r l i i r r | il
- - -i| i - i - - -i i i ri
l i i i rni i i r r i n i |
ni ili li n i- ii i i ilni iii - ni
r - i i-n - -iln il r i ii |
iln n i i li| n ir l-| l- ri
-il r - i ir l-i ri ii i i -i li
in| -i i - n r i lri ; n | i|
n-| i n ni i li r ; n |r lin| iln
r ri i --|i r l i- - ni ii i ni ir r -
ri l ini - i -i i; i - in | i i i
- -i r i ir -l- lii n -i i-
ri li i i i i ii i r - ri (-i r i r) |
il i li|
-i r-- i n|
-i l -l- i| i i
so - srs ;
"Copy of the application of Mohammd Khatib
Moazzin of the Masjid , dated Novermber 30, 1858 case
no. 884 regarding application of Thanedar Oudh, for
reconstructing the symbol within the Masjid Janam Sthan
Mahant Nihang Singh Faqir Khalsa Mohalla Ram Kot, Kot
Ram Chander Pargana Haweli, Oudh, Tahsil and District
Faizabad decided on December 15, 1858.
Gharib Parwar Aadil-e-Zaman Salamat
Sir, In a recent incident one Nihang Sikh resident of
Punjab Sikkhan, a government employee (Sic) is creating
riot on Janam Sthan Masjid situated in Oudh. 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
2303
has been made. . . . and after raising the height of
Chabutra about 1 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 Home 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. You are the master of both the parties
since the Shahi era (sic) if any person constructs forcibly
he would be punished by your honour. Kindly consider the
fact that Masjid is a place of worship of the Muslims and
not that of Hindus. Previously the symbol of
Janamasthan 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 1 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. Orders may be issued for the future (paper
torn). Deemed necessary, so requested .
Sd/- Syed Mohammad Khatib,
Moazzim Masjid Babri sites in Oudh
Dated November 30, 1858."
2304
2318. The above letter referred to something which
happened in the disputed building i.e. inner courtyard. In fact,
the learned counsels for the defendants Hindu parties have
submitted that the complaint of Syed Mohd. Khateeb was in
respect to the disputed building and the premises in the inner
courtyard wherein worship by Hindus said to have continued
from hundred of years. The genuinity of this document has not
been disputed by the plaintiffs (Suit-4) and on the contrary they
also rely upon it. Being one of the earliest document, in our
view, it is a very important Exhibit. It is contended by the
various learned counsels appearing for defendants Hindu
parties, that the same being a document of one of the earliest
period available having been written by a person whose identity
and authority is not disputed by the Muslim parties. Being an
admission must be treated as a sole conclusive evidence to
prove that the disputed building and premises throughout has
been in possession of Hindus and not of Muslims. Hindus have
continuously offered prayer inside the disputed building as well
as the premises in the inner courtyard as also at the Ram
Chabutara and Seeta Rasoi which was in the outer courtyard. It
is not stated anywhere in the said application that Muslims ever
offered Namaz in the disputed building or were obstructed. The
only averment is that, being a mosque, it is a muslim religious
place which is being defiled and defaced by Hindus by offering
their worship and keeping their religious marks etc. for the past
hundreds of years ("Sadaha Baras").
2319. We find substance. It thus appears that in 1858 a
Chabutara was constructed in the inner courtyard also and the
complaint was made in respect thereto. Had the building in
dispute and the inner courtyard been in possession of Muslims,
2305
such an act on the part of the Hindus could not have been
possible at all.
2320. It appears that some order was passed on 30
th
November, 1858 pursuant whereto Sheetal Dubey, Thanedar
visited the disputed premises and informed Nihang Faqir about
the order but he replied that the entire place is Nirankar and the
government of the country should impart justice.
2321. Sri Sheetal Dubey Thanedar submitted his report
dated 1
st
December, 1858; Exhibit 21 (Suit 1) (Register 5 Page
69-72A). The report says:


)
(

li - i|n ii i i -i ii l-
2306
srs ; o - -i o ss - -i | ii i i iii ii
lii -l - -ii n lr n l r | i ii
i - r~i i- i - (i- i- ) ni r| i nr|
li ii - li r l- srs ; o
n| i-n,
i i i r i-n n| lr n l r | i l
-l- - -ii - - |- r , ni|i so - srs ; o i
il r i i ni i-n ii i ii ni i i
- iii | | - li ni i - - ii
i | ;-ni li, r i| i| r r-i;i ri
l | - l r in r| l r nr l i | r
ir ri -il - ~ ;i i ilr i i
i - s r| ri i ini r | i;i i r - ri - nil
ni-| ni li - ni r r (-|)|
il i n ili li| -iii l- srs ; -| |

i|n ii i i
"Copy of the report of Sheetal Dubey, Thanedar
Oudh dated December 1, 1858 in the case no. 884,
application of Thandedar Oudh regarding erecting Darbar
and pitching on symbol within masjid Janam Sthan. Sant
Nihang Singh Faqir Khalsa resident of Mohalla Ram Kot
(Kot Ramchandra) Pargana Haweli Oudh, Tahsil and
District Faizabad, decided on December 15, 1858.
Khudawand-e-Parwaz Huzoor for summoning
Nihang Singh Faqir who is residing within the Masjid.
Order passed on November 30, 1858. So the parwana was
taken to the said Faqir by this obedient servant who is
posted there and the subject/contents thereof was explained
to him. He was explained the text of 'it' orally also - He
was admonished (for his act) but the said Faqir continued
2307
to insist that every place belonged to Nirankar and
justice should be done to him. Neither he said a word
about leaving the place he was illegally occupying not left.
Therefore, I am here to carry out any further orders given
in the matter. Deemed necessary so requested
Dated Dec. 1, 1858
Sd/- Sheetal Dubey Thanedar Oudh"
2322. Another report about service of the order on 6
th
December, 1858 vide Exhibit 22 (Suit-1) (Register 5 page 73-
75) reads as under:


( )

li - ii i i -i ii c l- srs ;-|
- -i o ss | ii i i ir ii lii
-l- - -ii n lr n lr | i ii i i- i -
(i- i- ) ni r | i nr| li ii
- li r l- srs ; o|
n| i-n,
ii i n lr n lr | il -l- -
-ii il r i i r- r - r ii l li -
r i | - li-n ni ii r ril ri ni r| il
ii n ili li n -i ii c l- srs ; -|
2308

i|n ii i i
"Copy of the report of Thanedar Oudh dated
December 6, 1858 in case no. 884. Application of
Thanedar Oudh regarding erecting Darbar and pitching a
symbol in the Masjid Janamasthan Sant Nihang Singh
Faqir Khalsa resident of Ram Kot (Kot Ram Chandra )
Pargana Haweli Oudh, Tehsil and District Faizabad,
decided on December 15, 1858.
Ghareeb Parwar Salamat,
Parwana Wakarul Talab Nihang Singh Faqir
resident of Masjid Janamasthan has been received. The
Faqir has appeared and is present. As per orders a report
in respect of the above said Faqir is being submitted for
perusal deemed necessary, so requested.
Dated December 6, 1858.
Sd/- Sheetal Dubey Thanedar Oudh.
2323. It appears that some orders was passed by the
authorities concerned that the Faquir sitting in the mosque be
ousted and if he does not move therefrom, he should be arrested
and sent to the Court.
2324. Exhibit A-70 (Suit-1) (Register 8, page 573) is a
copy of the order dated 05.12.1858 and reads as under:








2309
r - - -i o l- srs - -i o ss, |
ii i i iii i i lii -l- --ii - lr
| iii - i r l- srs ; o
i r - -i ii ri i n r i l r- r - so
- . . . .| i i -l- i| - -i r ii li|
ii i- iiii i i i l n | r| ini
r ni i ln ni ii r r l- srs
"Copy of the order dated 05.12.58, Suit No.884.
Application of Thanedar Oudh for re-erecting the symbol
in the Majid Janam Asthan, Tek Singh Faqir Khalsa.....
(Sic)...decided on December 5, 1858.
In the case Robekar was issued today. It was noticed
that as per order dated November 30, 1858, Robekar was
issued that the Faqir sitting in the Masjid Babri be ousted.
Parwana issued to the Thanedar Oudh that if the Faqir
does not move from there, he should be arrested and sent to
the Court. December 5, 58."
2325. Exhibit A-69 (Suit-1) (Register 8, page 569) is a
report dated 10.12.1858 submitted by Thanedar P.S. Oudh and
order thereon and reads as under:


( )





r - -i ii o l- srs ; o - -i o ss |
iiii i ii lii -l- --ii n - l r
2310
| iii -ir~i i-i - i - i- - i r l-
/rs i i i r i l- n i -l- --ii ii i ni
i | i rni ii lii ni|
r - r i l - -i iil ri ili n ri|
"Copy of the order dated December 10, 1858 Suit
No.884 on the application of Thanedar Oudh for re-
erecting the symbol within Masjid Janam Sthan. Saint Tek
Singh Faqir, Khalsa, resident of Mohalla Ram Kot, (Kot
Ram Chandra), decided on December 15, 1858. Robekar
issued today in which Jhanda (flag) was uprooted from the
Masjid Janam Asthan and the Faqir residing therein was
ousted. Ordered that the case be consigned to the office.
Dec. 10, 1858."
2326. It thus appears that the order of ouster of Faquir and
removal of Jhanda from the mosque was complied with. Here
also it does not say anything about observance of Namaz or its
revival by the Muslims in the said mosque.
2327. Exhibit 23 (Suit -1) (Register 5 Page 77-80 A) is an
application dated 9
th
April, 1860 filed by Dwadgo Mohammadi
Shah R/o Ramkot complaining that the Government has
declared Mauza Ramkot Nazul, he was required to get a lease
deed executed in his favour of the property he claim possession,
though he had raised objection there against, therefore matter
may be examined properly. Its contents are:


( )




2311














i-n - r--| iir il i- i- -i ii s
sco ; o l - o ss - -i, | ii i i
ir ii lii -l- - -ii n - lr |
iii - r~i i- i- (i- i- ) ni r | i nr|
l i ii - i r l- srs ; o
ini - r--| iir il - r~i i- i- i
i-n - ~n| -ii i - -i ii| -ii i- i- nli

n | i-n,
i i|, n ili r r l r- r - i
ii r -i i i- i - i i li i ; ri -i
nir i i - -ii i i lni rl n
ii| i| -r-i nii| s |ii ni i |ii
ii- l-l - -i ili i r ni|i i-n nr|in
-| r i;-| ilni -rni i - -ii - l--
ir i-n - -i r-i n rn r l - -i i
i r-i r -| i | | ri (-|) - r- -
2312
i - -i i - r| r i r n~| r-i|
- n r i nr |in | i r | rin| i
i i n | lrii --|i r l i- - l- ir r - ri
nli ni i r - -i - ~n| ii i | il i
li|
ini -i r--| iir il i- i - -i ii s scs ; o
"Copy of the application Mohammadi Shah resident
of village Ramkot dated April 9, 1860. (According to file
no. 884, the application of a Station Officer Oudh for re-
erecting the symbol within Masjid Janmsthan Sant Tek
Singh Fakir Khalsa Mohalla Ramkot (Kot Ram Chandra)
Pargana Haveli Oudh Tahsil and District Faizabad
decided on December 15, 1858).
Dwago Mohammadi Shah resident of Mohalla Ram
Kot. . . . . .Applicant.
The application for postponing grant of lease in
respect of village Ramkot till the decision of Nuzul.
Garib Parwar Salamat,
Respected Sir,
It is requested that under the orders of your honour
Mauja Ram Kot has been declared Nuzul and statement of
all the witnesses were recorded and they proved documents
of rights, two documents regarding purchase of Arazi from
the department of Nuzul, three Bigha Pokhta and two
Bigha Kham and the file has been placed in the case and
date 14 has been fixed for inquiry in the land of society and
Bairagies, Mahants of Awadh. Now Mutsim Saheb calls us
and offers lease and says to accept it but we do not agree
because of it being new Zamidari of Mohd. Zafar and will
forfeit our rights. Whatsoever orders would be of your
honour after the inquiry regarding Nuzul, we shall abide by
2313
the same. Therefore, it is prayed that orders may be issued
to Mutsim Saheb that grant of lease may kindly be
postponed till the decision of the case. Being proper, so
requested.
Applicant Dwago Mohammadi Shah resident of Ram Kot
dated 9th April 1868."
2328. This document shows an admission that the entire
Mauja Rampur was entered as Nazul. This fact is admitted
before us by the learned counsel for the parties. Sri Jilani though
sought to argue that the entry of disputed land as Nazul in the
records of the British Government at that time was wrongly
made but the fact remains that in the first settlement of 1861
also, the land was shown Nazul and this was never disputed by
anyone or challenged before the appropriate Forum in
appropriate proceedings and has continued as such.
2329. Exhibit 31 (Suit-1) (Register 5 page 117-121) is a
copy of the application dated 05.11.1860 filed by Mir Rajab Ali.
The aforesaid document has also been relied upon heavily by
learned counsels for the parties and it reads:












2314

i-n -| | -iii r - sco ; o
-i -i o zzs il -i r~i i- i- ni r | i
li ii
;i| i l-| -| ir ri ii - i s -i
sc -| | i- i| l r
2315
-| | in| -l- i| il i
ii-n r r l - ilri -- | ii rii i ni ii
l -l i| i i - i r i li r i
nr|in - rl- -ii i i | - ni - i r -
-ilr-n i-n i| n li i
n| i-n,
ri i ril-| ir r ri n| - i r i ri ni r - |
i n ili i | so i i rini r l - i r
ni ir -n| i lii - i- l-ni
- ilri -l i | - i i| li -r - i
li r i r i ni ni ini r riil i -i li
ini r -n l| nr i r| ini l~ i-ii rni-i i
ni rini r i l| ii i nr ni r ili i
| i r i rini l r| i n r -i n|
-n| -i ii irni ii l r -il-i i in ri
ln| r - ; il r ; i i li ni -irl-i ili
l-| ri ri l~ - li - -ilr-n r| i -
li ni l r l-l lil-ni - -i r (-|) |
l-| ir ri - i r - ni i-n (-|)
ri (-|) | -l i - r - l i
i i l i r -i rnl -- r i - i l ri ni
i ni - i r i i i i | -i ;i -i i
i i l i i | i | ( -| ) - i r i r
r - i - - n i i ( -| ) i
i i - r i i| l-ni ri | lin r n
ii r ii ; - l -l - i ni r ni r
ii i i| ii ini r ni i| i i i| r| r i i
ril- i i | r lrii ii-n rii r - n ili
--|i r l - i r rn i i ii i i
nr|in ni | ni-| iini - i r i i i| ri
ii i li r - rl- -ii i | lni - i -
- ir-n | i i ii n i - i r li
2316
i l r- n| - i r in i il i
li
i|
-| |
in| -l i| i i il i
-iii r - sco ; o
"Copy of application filed by Mir Rajjab Ali, dated
05.11.1860 case no. 223, resident of Mohalla Kot Ram
Chander, Pargana Haveli, Oudh, District Faizabad.
In the Court of Janab Dy. Commissioner Saheb
Bahadur decided on 18.03.1861.
Mir Rajjab Ali Vs. Askali Singh.
Mir Rajjab Ali Khatib Babri mosque resident of
Oudh.
The application is to the effect that as per the text of
the plaint the Chabutra which had been constructed
within Babri Masjid Oudh may kindly be removed after
due enquiry. Moreover the respondent may be ordered to
furnish proper undertaking/personal bond (Muchalka) for
not interfering in the matter."
Garib Parwar Salamat,
The story of mucelemanship of the Nihang
respondent is being told in this Hon'ble Court. About 30
days back the respondent made a small Chabootra in
violation of law, in the graveyard, adjacent to Babri
Masjid, between the graves of late Qazi Hadood which he
is extending day by day. Although he is told not to do so ,
but he does not refrain from doing so and at times, he
becomes violent. But the applicant owing to fear of law
avoids occurrence of any untoward incident or situation
which may arise in future. About half year back, Hari Das
2317
Mahant of Hanuman Garhi tried to build his house
forcibly. Against this act, a case was registered in the court
wherefrom a decree was issued in favour of the applicant
which was affirmed and continued as such from the district
level upto the commissionary. Even the said Mahant Hari
Das was made to execute personal bond/undertaking for
non-interference, which is available in Sarishta (file). The
commissioner found that a flag within the lawn of the
Masjid was pitched to create tension and terror. The
commissioner after seeing himself on the spot, got the
flag unpitched. He also noted the measurement of the
place. (sic). That the opposite party has broken every law
and order of the Government putting the owners of the
Qabristan and the applicant in trouble. 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 partiy 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. We are poor and weak persons and cannot protect
our rights from the opposite party. Deemed necessary so
prayed.
Yours faithfully,
Khatib Masjid and Warsi
Resident of Oudh, Dated November 5, 1860"
2318
2330. This is the first document which we have with us
going to the extent that in the inner courtyard, the muezzin used
to recite Adhan (ajjan) which obviously call the Muslim people
for offering Namaz otherwise there do not arise any reason for
calling Adhan (ajjan). The document of 5
th
November, 1860 thus
is evident that a Muezzin used to recite Adhan (ajjan) in the
building in dispute i.e. inner courtyard.
2331. Exhibit 54 (Suit 4) (Register 12 Page 359) is
another application dated 12th March, 1861 by Mohd. Asgar,
Mir Rajab Ali and Mohd. Afjal reiterating the complaint already
made on 5th November, 1860 that some Imkani had made
Chabutara near Babari Masjid at Janam Asthan Oudh and
despite orders, has not removed the same. There is no further
information on record about the consequences.
2332. The decision on the said application was taken by
Deputy Commissioner, Faizabad on 18.03.1962 directing to
consign the record to office.
2333. Exhibit A-12 (Suit-1) (Register 6, page 167-171) is
a copy of register namely Nakal Intkhab register no. 6 (jeem)
maffi shartiya Tahsil Faizabad mashmula fehrist register no. 6
Mauza Bahoranpur Pargana Haveli Oudh, Tahsil wa Zila
Faizabad. It mentions in column 6 the name of Mohd. Asghar
and in column 7 the name of Mohd. Asghar and Rajjab Ali. In
column 14 it is mentioned:
14. Navaiyat wa Tarikh Hukm Government.
Chitthi numberi 2321 Mubrikha 29 June 1860 Ei. Meem
Baj Taq Mahasil Deh Sirf Masjid Mein Rahe Yani Bawajah
Timawat Dawami.
In column 15 it mentions as follows:
Jabti Maafi wa Wajah Khilaf Vajri Sharawat
2319
x
2334. Exhibit A-10 (Suit-1) Register 6 is copy of the
Register Tehkikat Maafi filed in Case No. 53 register Misil
Band Mukadma Rajab Ali relating to village Sahnawa Pargana
Haveli It has several columns and different columns contained
therein have been translated in Hindi by Sri Jilani and supplied
to the Court. It reads as under:
S.N. Particulars
1. Number: 51
2. Name of Tehsildari
and Talluqa
Faizabad, Pargana Haveli,
Oudh
3. Name of Village
wherein Maafi is
granted.
Sahanwa
4. Tadad Aarazi Maafi
Khwahkul, Mauza
Khawahajaj, May
Shumar Chah Wa
Tadad Arazi, Baqaid
Acre.
Naqadi (Cash)
5. Tadad Zama Salana
(Total Annual receipt)
Rs.302-3 Anna, 6 Pie.
6. Name Wahib Babur Shah, Badshah Delhi.
Ajrue Ijharat (Courtesy Babar
Shah Emperor, Delhi)
7. Register Tehqikat (Register of inquiry)
A. Taarikh Ata (Date
of grant)
Unknown
B. Name Mauhoob
May Quaumiyat
(Name of the person
to whom Maafi was
granted)
Syed Baqi resident of Oudh
MoazzinMasjid Babri situated
at Oudh
C. Tafsil Kism Maafi
Ki Yani Kab Di Gayi
Aur Har Ek Maafidar
Ke Baras Tak Kabij
Ye Maafi Azruye Izaharat
Barwaqt Taiyari Masjid Babri
Bake Oudh Babar Shah Ne
Vaste Sarf Masjid.... Moazzin
2320
Raha (details of
nature of Maafi i.e.
when granted and for
how many years
every Maafidar had
been in possession)
wa Khatib Ke Mukarrer Kiye
Bataur Waqf sun wa Tarikh La
Maloom Syed Baqi Tahyat Baad
Unke Syed .... Ali Ladka Uska
Ta Hayat Baad Uske Syed
Husain Ali Ladka Uska Ausatan
Sath Baras Kabiz Raha Ab Syed
Rajab Ali Damad Uska wa
Mohammad Asghar Nawasa
Uska Maujud Hai Sun 1263
Fasli Tak Bamojib Dehanid
Naqdi Amdani Mauza
Shahnawa Se Bazriye Rasid ....
Pata Raha sun 1264 Fasli Mein
Tahkiqat maafi Shuru Hui Thi
Ki Balwa Ho Gaya ... Fasli ...
sun 63 Fasli Paya Gaya .... Asal
... Ke Aur Dastavez Hai ....
Babat Maafi Ke ... Hai
Bandobast Mauza Mazkoor Ka
Banam ... (This grant was given
at the time of construction of
Babri mosque situated at Oudh
by Babar Shah to meet the
expenses to Syed Baqi
appointed as Moazzin and
Khatib of Waqf (date and year
not known) till his lifetime,
thereafter his son Ali till his
lifetime, thereafter his son Syed
Husain Ali who was in
possession of about sixty years.
Now Syed Rajab Ali his son-in-
law and Mohammad Asghar his
grandson were presently
Moazzin till 1263 Fasli and
used to receive the income from
village Shahnawa against
receipt. Tahkiqat Maafi
commenced in 1264 Fasli when
riot broke out. . . 63 Fasli
noticed. . . original document
regarding Maafi illegible.
Settlement regarding village
aforesaid illegible . . . (sic)
2321
regarding)
D. Name Kabiz Hal
Bakaid Waldiyat Wa
Quamiyat Wa Umar
Wa Rishta Maafidar
Sabiq Ke (Name of
the person in
possession with
parentage, caste, age
and relation with
previous grantee.)
Rajab Ali Wald Fatehali Quam
Syed Umra Takhminan 70 Saal
Asal Maafidar Ke Pote Ka
Damad Hai Mohammad
Asghar Wald Rajab Ali Quam
Syed Umra Takhminan 30 Saal
Asl Maafidar Ke Pote Ka
Nawasa Hai. (Rajab Ali son of
Fateh Ali Caste-Syed aged
about 70 years is the son-in-law
of grandson of real grantee
(Maafidar) and Mohammad
Asghar son of Rajab Ali Caste-
Syed aged about 30 years is the
Navasa of grandson of real
grantee (Maafidar)
8. Kaifiyat Sahab
Mohatmim Tahkiqat
(Details of enquiry
officer)
Chunki Naksha Angrezi Mein
Tahrir Munasib Ho Chuka Hai
Isliye Hukm Hua Ki Shamil Misil
Ke Rahe 14 March sun 1860 Ie.
Bamako Dastkhat Hakim Bakhat
Shikayat (since the map
prepared in English was
accepted, so ordered that it be
kept on file. 14
th
March 1860
Sd/ )
9. Tajbiz Hukkam
Tahkiqat Upar Chaal
wa Chalan Maafidar
Ke Babat Anjam Ujra
(Recommendation of
the authorities after
enquiry about
character of grantee
and result of
objection)
10. Hukum Sahab
Commissioner
Bahadur (Order of
the Commissioner)
11. Hukum chief
Commissioner
2322
Bahadur (Order of
the Chief
Commissioner)
12. Hukum Board (Order
of the Board)
Bamojib Hukm Government
Chiththi Numberi 2321 Morkha
29 June Sun 1860 Ie. Jis Kaam
ke Waste Yeh Maafi Di Gayi Hai
Jab Tak Wah Kayam Rahe Tab
Tak Yeh Bakhshish Hayat Rahe
Isliye Hukm Hua Ki Sanad
Maafidar Ko Wa Rasid Hasb
Sarishta Li Jave Markooma 6
October Sun 1860 Ie.
Dastkhat Angrezi Bakhat Shikast
Nakal Kiya
Muqabla Kiya
Verified to be
Hindi Transliteration
(Z.Jilani)
Advocate
(Order of the Government vide
letter no. 2321 dated 29
th
June
1860 to the effect that the grant
for which it has been granted,
will continue till the purpose for
which it has been granted
survives it was ordered that
Maafidar receipt certificate to
grantee and receipt be taken and
the placed on file dated 6
th
October 1860)
2335. Exhibit A-3 (Suit-1) (Register 6, page 33) and
Exhibit 1 (Suit-4) (Register 10, page 27) is copy of a certificate
of grant executed in favour of Rajjab Ali and Mohd. Asghar
(father and son). It bears the seal of Chief Commissioner. It
reads:
It having been established after due inquiry that
Rajjab Ali and Mohd. Asghar received a Cash Nankar of
2323
(Rs. 302-3-6) Rupee Three Hundred and two three annas
six pie from Mauza Shahanwa District Fyzabad, in rent
free tenure under the former Government. The Chief
Commissioner, under the authority of the Governor
General in Council is pleased to maintain the grant for so
long as the object for which the grant has been made is
kept up on the following conditions. That they shall have
surrendered all sunnds title deeds and other documents
relating to the grant in question. That they and their
successors shall strictly perform all the duties of land
holders in matters of Police, and any Military or
Political service that may be required of them by the
Authorities and that they shall never fall under the just
suspicion of favouring in any way the designs of
enemies of the British Government. If any one of these
conditions is broken by Rajjab Ali and Mohammad Asghar
or their successor the grant will be immediately resumed.
2336. The above documents though shows that some grant
was allowed to Mir Rajjab Ali and Mohd. Asgar but it does not
appear that any kind of inquiry was made by the authorities
concerned and if so, what was the basis therefor. According to
the claim of Muslims, the Commander of Babar, who was
responsible for construction of the building in dispute was Mir
Baqi while Mir Rajjab Ali claimed himself to be the son-in-law
of the daughter of grand son of Syed Baqi. Mohd. Asgar was
son of Mir Rajjab Ali, therefore, the son and father claimed
relation with the 4
th
generation of the alleged original Mutwalli
stake their claim for grant. No material exist to show that earlier
such grant was awarded by any one though stated by the
aforesaid two persons. If we go by the averments of the plaint
2324
that the alleged waqf was created in 1528, it is wholly
untrustworthy to find out that in the last more than 325 years, it
could only be the fourth generation and its relatives or at the
best 5
th
generation. The authorities in 1860-61 were not under a
duty to act judicially in this matter and therefore, might not have
given any details of their enquiry as to on what basis the alleged
enquiry was conducted. Ex facie, to us, the genealogy of Mir
Rajjab Ali commencing from Syed Baki who must have existed
in 1528 is unbelievable. It is not out of context that the story of
grant might have been set up by the two persons i.e. father and
son for the purpose of obtaining valuable grant from Britishers
in their favour. In any case, these documents only show that a
financial assistance was provided by the British Government for
the purpose of the mosque in question but this by itself may not
be a proof that the building in dispute was used by Muslims for
offering Namaz or for Islamic religious purposes to the extent of
ouster of Hindu people or otherwise.
2337. Exhibit A-15 (Suit-1) (Register 7, page 183) is a
copy of the letter dated 6
th
September (probably of 1863) sent by
the Financial Commissioner, Oudh to the Commissioner
Faizabad Division stating as under:
"Janamsthan mosque in Ajudhia.
In reply to his no. 3 dt/ 4
th
January last approval the
selection of land made by the Offg. Deputy Commissioner
of Fyzabad for above."
2338. Exhibit A-16 (Suit-1) (Register 7, page 185-191) is
a copy of the order-sheet (Roobkar) of 9
th
, 16
th
, 28
th
and 30
th
September, 1863 and reads as under:


2325

2326

ii r| -| li ii ;i l--- i
i n| ir ri l-| l- i ni|i s -ir n-n scs
l- -| -| zsz -il ii zr -ir n-n cs ; o - i ir
l -| | l- ri l i- -| oc -il ii zs
n-n scs ; o ir l- ri | - - -i r ;
2327
l i - l n sozo s i o c i ; o i i -n
-l - --i i i i - l n- - - l i
i i | l| -| | ii li i -r i
ni -i| i i- -- i-| -i l~n soz o s i. c io
iii ri, li i | ir l-| l- ir ri
ii -| i i-n n| l i i, i -
r ii i ri i ilr i r ii lri -ii n i
ri i ilr - li - ir l- ri i i i |
r - r i l
lr ii ;i - i| i i- i ir ;- i
l-- - l- ri r- ni-| i ir| i i ri |
i lii i l - i| ir ;-ni i l--- i i n|
ir ri i ir| | |
ro ril-
;i i i- i ir ri
;- i l-- - l-,
. ii-i os
r - r i l
l-l ili i ri | - - ni|i s ln- scs ; o
-nin ril-|
i - ilri l-l i n r i l | -i r--
n ril r| r| i i n ; - i r l
r- -ii r - i ; -| | ilri r ;l r - r i l i
ln- scs ; o i i ri z -ir ln- scs ; oo
ril-
c ln- scs ; o i i i - il |
-ir-- n i-n n| i r i| -lni ri l
-| -i- i iii | i ri i - nil r
sozo s io c io l- i lin lni i r i l
-i i -i ri ss i i -i ii| iii |
cz i - i srr o i i n-i- r | i| rzzc
i in li ii niin - i ir l-- -
l- ri - -i | ni -| -; rzzc
2328
-| iii | - nli ri n| r i -i i r -ii
l- -n r ;l r - r i l . . . . . r-ir r -
;i ir l-- - l- ri ;i li i ri | c
-ir ln- scs ; o -nin ril- . . . . . . ;i io rn
ir l-- - l- ir ri li ii|
r - r i l
- i| i i- i ir ;- i ir l- ir ri r-
n| | -| l rzzc - nli li r i
nin | ii r- -ii l- -| ir -| | l-
ri - -n -i ;i -i | n li - i ini ii
i ni - -i - i - ni| r i ir -ri| ~
;i -i | zs ln- cs ; o|
o ril-
;i - i| i i- i ir ri o ril- i i r i
i i si ni l r n -| n - ili i n | i
li l r- ilii n | ;l r - r i l -| n
- ri -in ii r ni r~i r -n i
ii ii i | l-ni i ni ii i | i i -|
i| r~i ii i | - r n| -| n - i-n liin
i i | - - ni|i so ln- scs ; o
o ril- -i i | |
"Robekar Kutchery Collectorate, District Faizabad.
In the Court of Mr. Babrak Carnegi, Deputy commissioner,
dated August 31, 1863, letter no. 2482, dated August 25,
1863 from the Secretary, Chief Commissioner, Docket
number 116 dated August 28, 1863, received on the subject
for providing a piece of Nazul land exempted from rent
near Ayodhya as Maafi Dawam fetching annual rent of
Rs.302/3/6 (Rupees Three hundred two Annas three and
Pai six) which was sanctioned by the Government as
Maafi Dawam ( forever) to the Masjid Janam Sthan. The
map of the proposed land marked for the purpose should
2329
clearly indicate boundaries and be prepared on scale and
be sent by the Deputy Commissioner to the Commissioner
alongwith report and Naksha Amin.
It was ordered
That this Robekar be sent, as it is, to the Extra
Commissioner, Munshi Rai Ram Dayal. Put up for
compliance and necessary action. It should be mentioned
that Munshi Saheb may take necessary action in
consultation with Mr. Babrak Carnegi.
Sd/- Rai Ram Dayal
Extra Asst. Commissioner.
No. Roznamcha 208 (sic)
Ordered:
Put up along with the previous file.
Dated September 9, 1863 Sd/- Officer.
After perusal of the file it appeared that Rajjab Ali and
Mohammad Asghar are not present. It is to be ascertained
from them whether they require the land as per the orders.
So it was ordered to be put up today, the 12th of September
1863(sic) Sd/- officer 16
th
September, 1863.
Later on the case of Rajjab Ali and Mohammad Asghar
was put up for proposal. The Numbardargaan told that
land including Sholapuri and Bahoranpur which is that of
Nazul, fetching rent of Rs. 302, 6 Annas and 6 Paie may be
given to them. Inquiry from the 'Sharishta' record revealed
income of Rs. 193 from Bahoranpur and Rs. 172 from the
land in Sholapuri (total Rs. 355 annually). The land as
requested above may be given to us with suitable
conditions by the Asstt. commissioner for the land. The
land fetching rent of Rs. 52-12-6 can be selected from
2330
Shoplapuri and the entire village of Bahoranpur should
remain intact.
Order:
Put up along with the orders of Assistant Commissioner,
In-charge district.
Dated September 16,1863
Sd/- officer
Court of Dr. Hegh Saheb Asstt.
In-charge District Faizabad.
Munshi Rai Ram Dayal Extra Commissioner as per his
own choice selected land 52-12-6 the map of the two
plotsas per orders of the secretary to the Chief
Commissioner, alongwith the proper report be sent as per
instructions. Therefore, the report will be duly sent.
Compliance be ensured. May be sent today.
Dated September 28, 1863.
Ijlasi Munshi Rai Ram Dayal. Presented for orders. The
applicant was asked as to whether he would deposit
'Ujrat' (fees) of Amin. He said that he would. Therefore,
it was ordered that an Amin may be appointed who would
prepare clear maps of the lands of Bahoranpur and
Sholapur, indicating their respective boundaries clearly
with Kishtwar details. The land of Government Nazul
should be marked by yellow colour, for identification.
Dated September 30, 1863.
Sd/- Officer Lachhman Prasad."
2339. Exhibit A-14 (Suit-1) (Register 7, page 181) said to
be a copy of the letter dated 25.08.1863 sent by the Secretary,
Chief Commissioner Oudh to the Commissioner Faizabad
Division stating as under:
"With reference to your letter no. 826 dt. 9
th
..... I am
directed to inform you that the Governor General has
2331
sanctioned the Chief Commr's proposal for the
commutation of the cash payment of Rs. 302.3.6 granted
in perpetuity for the support of the Janamsthan mosque
at Fyzabad to a grant of land rent free estimated to yield a
yearly rental of that amount and to request that you will
provide for the change by a grant of some Nazool land
near Ajudhia."
2340. Exhibit A-17 (Suit-1) (Register 7, page 193-197) is
also a copy of the order-sheet dated 16
th
September, 1865 of the
office of Assistant Commissioner Faizabad and reads as under:

2332


















ni
ii r| -| li ii ;i l--- i
i n| ir ri l-| l- ii s ln- scr ; o
i- -| zor -i ii c ln- scr - l i ir
i; li l- ri l i- o sc/ -il ii s ln-
scr ; . ir l- ri | - - il r i, l-|
l- ri i -| i-n - ii -l- --ii
li r - | n; lrii|
r - r i r l
ii rii li-n - - i| lii ir ri -i
l-- - l- - li - i ri l r n ~ ii rn
-| - ii n -nin ril- ;i - i| lii
ir ri |
2333
r - r i l
i -| - ii - nr| | n| r i li i |
i ii-i li i - - ln- scr -nin ril-|
i i| i- ri -nr
-| -i soz (-|) o i s i r- n| r ; r |
r -i i - ~- ii | iii | - z/s |
- l / o -i -i i r ;i ri - -i li ni r|
i| i ss - l zoo o i - -i r i i li - c
ln- scr ; o - - - li| lrii i
ri| - i r l lilri i| -i -| n|
i i ili i lii i | i l nr ;ii ri |
-iii ln- scr ; o
;i - i| lii ir -i l-- - l-
ri
-i - rini r l n n| -ii -i r l -i i
r - ln ss r z/ z/z - r| -i i-
r| n |-n z/s -i - - / o ;ii
ri zoo i - -i ln r i ; n - r i-
n| - ii i -n ri in i ;ii r l
ii - ii - - ri i-n - | ;i r i ii ni -i ss
i | ni ni-| - | i ;ii | / ||
i; ri ni r | i . . . . .i lri r| r | -n
;l-ni ;| | r| ; i-n r - r i l ;l-ni r in
r i ir l-| l- ri . . . . i ri li ;ii
ii i lii i i | - i; -| iii |
| i| c ln- scr -nin ril- i- i |
"Robekar Collectrate, District Faizabad, before the Court
of Mr. Babrak Carnegi Deputy Commissioner, Dated
September 1865- docket number 2105 dated September 6,
1865 passed by the Financial Commissioner through
docket no. 867 dated September 9, 1865, according
approval of the land selected for compensation for Masjid
2334
Janam Sthan, Sd/-
Ordered.
Roobkar be put up before Munshi Nand Kishore, Extra
Assitt. Commissioner and the land may be allotted.
Sd/-Munsi Nand Kishore.
Ordered:
Possession over the land for compensation as proposed
be given and receipt/certificate of possession be
obtained..
Sd/- Munshi Nand Kishore.
Dated September 16, 1865. Sd/-.
Respected Sir,
The land yielding revenue of Rs. 302, 3 and half
Annas has been selected. The lease of village Bahooranpur
(whole) and Aarazi Sholapuri (Part) as per 1273 Fasli was
given on deposit of Rs. 7/- , i.e., instead of Rs. 193/ lease
was granted for Rs. 200/- the details whereof have been
given in the report dated September 6, 1865. Therefore,
before handing over the possession, I would pray once
again that the possession over the demarcated land be
given or as your honour may deem proper.
Dated September 16, 1865.
Ijlas Munshi Nand Kishore, Extra Asstt. Commissioner.
It seems that at the time of proposing the land as
compansation, for Bahooranpur revenue was Rs. 193/-.
The same figure continued during 1271 and 1272 Fasli..
But at the time of Bandobast in 1273 F, Rs. 7/- was
increased, making the total amount to Rs. 200/- at which
the lease was accepted/approved.. In these circumstances,
there was an increase of Rs. 7/- whereas, when the map
2335
was prepared and submitted, the said amount was Rs.
193/- only. Now after the orders of approval Rs. 7/- which
is 2.5%.. Though it does not deserve
attention/consideration but furnishing of the information
regarding it is necessary. Therefore it was ordered that
necessary papers be put up before the Deputy
Commissionersicthat possession may be given without
considering the increase and its adjustment be made from
the land in village Sholapur.
Dated September 16, 1865
Sd/- Officer."
2341. Exhibit A-18 (Suit-1) (Register 7, page 199-205) is
a copy of the order dated 30
th
October 1865 from the office of
the Assistant Commissioner, Faizabad and reads as under:

2336






























2337
i i| i- ri-nr |
ni-| r - - i r ln- scr ; o i l i
n| -| in| -l- - -ii i i r| riil l
i n| i | r l l i i i l-i
ilr| - - li - i-- i n ni| i| rini
i n ii r r l ni|i c ln- scs r
-i i - ~- -i ss i -| -i os i i n| ii
r~i ii| ii i | i i ir n r-i n| sozzcos
ii| n| ri zs l- sc ; o li - r ir
l- ir ii ni l r i ir| l-- - -i r
i r z/s o - -i -i i ri -i zoo i i
- -i iilin ii i | - nil -i z/z o n|- ri n|
-ii c ln- scr
ii iii
;i - i| lii ir -i l-- - l-
l r- ii ii ri r - i ri| i li ni
;lr - r i l r li - iil- l-l r| - -
ln- scr ; o o ril-
;i l--- i i n| ir ri i - ilri
- i| lii ir ri r - r i l lrii ;ii
lii i; i - ii i i lii i | lr ;i
- i| lii ir i ri l i -ri| li lri li -
i ni l ii i| i ; li - i i - ii i
i lii i i i i in i n| i il
- ii i- l-- | r in i| l-| ir li n
ln i ii | n| -i l l- i r - -i
i-- n ri i | ni|i o - scr -nin ril-
;i - i| lii ir ri i i lii
i i i i-i li i i i-ni li i n| r
i ir| i l | i i nr| ln - - i-
;i- - li ni i n li - r - - il li i ni
o - scr o ril-
2338
i i| i- ri-r i ir| | i -| i-- r ;
i ii i i lii ni i ii-i i| r
n-| ri ni| l-n inin r - - il ri i
ilr -ii s - scr ; o
;i - i| lii ir ri -n| iii ii i
- ilri ln ni-|| . . . .r - r i l . . . . -ii r
ii| ii i | i -ii - | n| l-- iil ri i
i n-| . . . .in in ni-| ili n i n n
i ri ni n | - liii i | - - so -
scr ; o -nin ril-
"Before Munshi Nand Kishore Extra Asstt. Commissioner
Respected Sir,
In compliance of the order dated September 5, 1865
for giving cash and land to the Khatib Masjid Janamm
Sthan, I pray as under:
That it is to be decided as to from which year the
aforesaid cash should be payable to the applicant. A
detailed report may be required from the Accountant. A
report dated December 23, 1864 was sent to the
Commissioner which contained the position of
compensation as follows: On September 16, 1863, Moawza
Musallm Jama 193/- and land Jama Rs 109/- and 3 and a
half anna, Halka Aarazi Sholapuri, situated at Sahebganj
sic306, 302was marked/proposed. The proceedings
are available in the file. In 1273 F. lease of Mauza
Bahooranpur Jama Rs. 200/- and for Aaraziat Sholapuri,
previous deposit ..1272 F. (sic) was allotted..
Dated September 6, 1865 commissioner Bhola Nath.
Ijlasi Munshi Nand Kishore Extra Asstt.Commissioner
Since in this matter orders for handing over possession
was given through robekar separately, it was ordered that
2339
report may be placed in the related file.
Dated September 14, 1865.
Order
In the Court of Mr. Babrak Carnegi.
After perusal of the order of Munshi Nand Kishore it
was ordered that without taking into account the increase,
the allottee should immediately be given Dakhal
(Possession) sicIjlas Munshi Nand Kishore Saheb.
Possession may kindly be given without waiting for the
report of Inspector because he may not give one. The
allottee may be given possession. Another question/matter
regarding the fixation of the year from which the cash
amount would be payable, is enclosed in the file. The
Deputy Commissioner after enquiry from the Treasury,
may pass suitable orders so that the case is disposed of
immediately.
Dated October 10, 1865 Sd/- Officer.
Order.
Possession may immediately be given and Dakhal
Nama/acknowledgement thereof be taken. For payment of
cash, file may be sent for necessary action. For the second
time, detailed orders have been given to the Accountant.
After a proper report is obtained, and after perusal thereof,
suitable orders would be passed.
Dated October 10, 1865 Sd/- Officer.
Respected Sir,
Proceedings regarding handing over of the possession over
the land have been completed and the land has been given
to the applicant and Dakhal Nama has also been
verified/confirmed before your honour. Now suitable
2340
orders may be issued regarding these documents.
Dated October 19, 1865
yours faithfully.
Bhola Nath.
Ijlas Munshi Nand Kishore Saheb.
After perusal of the details regarding service, it was
ordered --- Mauza Bahoranpur and sicSholapuri which
have been in Moawza (compensation), may be struck off
from the register and after completing all the papers, be
consigned to the office. If there is any need of answer to
any query, it should be written in English. Dated October
30, 1865
Sd/- Officer. Lachhman Prasad Naqal Nawees."
(E.T.C.)
2342. The above documents refers to the cash grant and
thereafter the grants of land in lieu of cash grant to Mir Rajab
Ali and Mohd. Asgar. Here also there is nothing to support or
even to suggest that the Muslims actually attended the disputed
building or site for offering Namaz at all.
2343. The factum of grant, as is evident from the above
record, has been heavily relied by Sri Jilani contending that this
is an impeccable evidence that the premises in dispute was in
possession, control and management of Muslims since 1860 and
onwards. It is contended that this grant was allowed after due
enquiry by the authorities at that time, as is mentioned in the
order passed by the Commissioner. Official acts are presumed to
have been done in accordance with law unless shown otherwise.
He, therefore, submits that no other evidence need be required
to show that the property in dispute remained throughout in
possession of Muslims as is fortified from the factum of the
2341
grant being allowed for maintaining the mosque in question. It is
submitted on behalf of the other side that this grant was allowed
on account of personal service and on certain conditions
mentioned in the certificate unattached with the mosque in
question and therefore, it does not prove anything.
2344. We take the documents as it is and having gone
through the same very carefully, find that Mir Rajab Ali and
Mohd. Asgar claim to be 4
th
and 5
th
in generation in genealogy
and that too as the daughter's son of the 4
th
generation claimed
for grant which was allowed by the British authority. There is
no occasion for us to look into its correctness or validity since it
is a fact accomplished. However, ex facie it is absolutely
unbelievable that commencing from 1528, Mir Rajjab Ali and
Mohd. Asgar had rightly shown the genealogy running only in
five generations within a period of more than 325 years.
2345. Besides, the grant, no doubt was allowed to them in
their names, though for maintaining the mosque in question but
the fact remains that there is not even a whisper in any of the
above documents that the Muslims visited the place in dispute
and offered namaz thereat. On the contrary, continuous visit of
Hindus and worship by them at the disputed site is mentioned in
a number of documents as well as in the historical records.
2346. It is really a peculiar case of its own kind where
despite the fact that the building commonly known as mosque
existed yet it continued to be visited by Hindus and they
perform Darshan, Puja etc. therein ignoring the apparent nature
and shape of the construction as also the fact as to who made it.
2347. Exhibit A-13 (Suit-1) (Register 6, page 173-177) is
a copy of an application dated 25.9.1866 said to have been
given by Mohd. Afzal Mutwalli Masjid Babari making a
2342
complaint of construction of a Kothari Chabutara and placement
of idols within the compound of the disputed building which
reads as under:

2343










i-n -iii zr ln- scc ; o -i- i - -| zzs
- li s -i sc ; o -ir~i i - i- ii i li
ii
-| | in| -l- i| - ;
i-
l-i lr - i r
-l - i i i
-ir--
- n~|
i| i i
ii i
- ;
i-n ii
i i-| |
i - i r
| -i~ii i
- n ni
ii -l- - r
ni i li r|
n |i ni ini
- -ii i- ili
i - i r
n| i-n
-l- i| i | - -ii - i- i ii - i;
r ; iir i | l l| r i; iii| i- lli
- n~| -l- - i i n-i n ri i| i
n - ri r r i r-ii i ili - -l- -
| in| r i i | ii ;-ni - | -i |
li-ni i - - i ;ii-i -i i ili i
ri i r n i - ili ; - -in | l-
-i r n ;in ; i i i n -l- -r
2344
r| ii ilni - -ii r n l | l
liii | -l- i -n r- lli | ;-ni ri
- -iln i ; i lin r|| | -r| i
ri ni r l n |i n i ilni - -ii si -| |
i-| ;ii i - n n i i| r i i -
rini ni l , l| i i ii n i i-i
iii - i | i liii -n n i ; r - i li
; ri- ; il r| r i l ; i-| r i
i i ilni - r ni i i liii i- ri
il - ni-i l-i| ni ~ ir ri l-i r ni
i| r l i i -| i; i| - r| ii| i n - l
ril- - l ri i l - iii r ni ilni
ili i l i ni, si -|
i-| i ii - ilr-ni ilr-ni i i n|i r
ii ni-| n r lrii ri --|i ; i r
l i-n lni i-| - r - r il ri l i
ilni -l- -r r il ii li|
-i i| i-i r|
i-n l| -ir-- - n~| -l- i| i i
-iii zr ln- scc ; o
Copy of the application dated 25
th
of September 1866
included with case no. 223, decided on March 18, 1861
Mohalla Kot Ram Chander, Ayodhya, Oudh, District
Faizabad
Mir Rajab Ali Khatib Masjid Babri -- Petitioners
Vs.
Ambika Singh -- Respondent
Masjid Details
Syed
Mohammad
Afzal
Mutawalli
Babri situated
Application for
demolishing the
new Kothri which
has been newly
constructed by the
Tulsidas etc
Bairagiyan Janam
Sthan Ram residents
of Oudh-
Defendants.
2345
at Oudh Khas
Applicant/plai
ntiff
respondent for
placing idols etc
inside the door of
the Masjid where
he has constructed
a Chabootra.
Gharib Parwar Salamat
Masjid Babri situated near Janam Sthan in Oudh Khas
constructed by Shah Babar. The work of scavenging and
cleaning was given to the applicants by the Mutawalli by
the British Government, which still continues. There had
always been a tussle with Hindus who have ever been
expressing their interests in the affairs of the Masjid.
Therefore on complaints several undertakings and sureties
have been filed and a compromise has also been entered by
them not to interfere with it. A good number of files of
frequent such complaints in past are kept in the
Collectorate, Yet, only due to the wisdom and justice of the
Court,the Mosque could remain safe and protected. But for
the last few days the Bairagis of Janam Sthan are trying to
build a Shivala near Masjid. But due to our vigilance and
reporting of the matter to the authorities and restriction
imposed by the Government it remained free from any
dispute. About a month back the defendants Tulsidas
etc., Bairagis Janamasthan with the intention of
planting idols etc in it have constructed a Kothri in an
illegal manner within few hours inside the compound of
the Mosque. The applicant informed the police vide
Roznamcha Thana but till now no orders regarding
demolition of the Kothri have been issued by the
Government. Since owing to continuance of the existence
2346
of Kothari, there is apprehension of daily tussle and clash
caused by Bairagiyan. Mr. Goldane Commissioner did not
find even the Chabootra built near the Kothri in the past.
At the time of Gadar, within two days Bairagiyan got the
Chabootra constructed overnight. Because of this
construction, there occurred so much rioting in the local
populace. Now a small Kothri has been constructed
within a short span of time. They can increase such
constructions gradually as is their nature or habit.
Therefore, after putting the real situation before your
honour, it is prayed that mosque may remain protected
from the dispute or quarrel of Bairagis and orders for
dismantling the Kothari may be passed. I deemed it my
duty to inform you. Applicant Mohammad Afzal Mutawalli
Masjid Babri situated at Oudh, dated September 25, 1866
2348. Exhibit 29 (Suit-1) (Register 5 page 103-105) is a
copy of the order dated 12.10.1866 of Deputy Commissioner,
Faizabad in case No. 223 Mohd. Afzal against Tulsi Das and
others directing for consignment of record to office. It says:









r - -iii z - scc ; o n i-n - r--
- n~| -l i| i i ii lii n | i
nr ilni - -ii -i zr ln- scc ; o
2347
- -i - zzs il - r~i i - i- ni r | i
li ii ;i| i l-| l- ir ri ii
- li s -i c ; o|
l--- | i- i| l r
r - r i l
i l i n ri z - scc ; o
-nin in n |
"Copy of the order dated 12.10.1866, on the application of
Mohd. Afzal Mutawalli Masjid Babri situated at Oudh
Khas against Tulsi Das and others, Bairagiyan,
Janamsthan, dated September 25, 1866 in case no. 223,
resident of Mohalla Kot Ramchandar Pargana Haveli
Oudh District Faizabad; In the Court of Deputy
Commissioner Saheb Bahadur Faizabad decided on March
18, 61. Mr. Rajab Ali vs. Askali Singh
order.
Be consigned to office.
Dated October 12, 1866.
Sd/ in English"
2349. Exhibit A-19 (Suit-1) (Register 7, page 207-213) is
a copy of the order and decree dated 03.02.1870 of Settlement
Officer's Court Faizabad in Case No. 5, Mohd. Afzal Ali and
Mohd. Asgar Vs. Government regarding Mauja Bahoranpur
Taluka, Pargana Haveli Awadh. The dispute pertains to superior
propriety right revenue free. The order reads as under:
"Parties present. The plaintiff who has been present
at all the sittings in the other cases connected with this
village is today absent, but as all the other cases are now
concluded and his suit is under a grant from the British
Government, his case is proceeded with.
I find that in answer to the Chief Commr's circ.
2348
43/1463 of 21
st
May 1863 enquiring about endowment for
support of mosques and other religious purposes in the
Fyzabad District, a letter ( No. 53 of 2
nd
July 1863) was
sent by the D.C. stating that a sum of 302/2 was paid
annually from the imperial revenue for the support of the
Janamsthan mosque in Ajudhia. On the 28
th
Augt. the
Commr. forwarded copy of the letter from the Secretary to
the Chief Commr. to his address No. 2492 of 25
th
August
1863 which is as follows:
"With reference to your letter no. 829- of 9
th
ult
I am directed to inform you that the Governor
General has sanctioned the Chief Commr's proposal
for the commutation of the cash payment of Rs. 302-
2-0 granted in perpetuity for the support of the
Janamsthan mosque at Fyzabad to a grant of land
rent free estimated to yeild a yearly rental of that
amount and to request that you will provided for the
change by a grant of some Nazool land near
Ajudhia."
In obedience to these orders a proposal was made and
statement submitted (D.C's No. 381 dt. 16
th
Nov. 1864) to
give over mauja Sholapur and Bahoranpur.
To this Commr replied in no. 1289 of 20
th
Nov: Reply
to No. 381 dt/ 16
th
inst. states that the land included in
Bahoranpur and Sholapur seems exactly to suit the
requirement of the case. The cultivated area gives the exact
nikasi wanted and there is no land likely to come under
cultivation and thus give the muafidar larger income at the
expanse of the state. ...... Beg D.C. will take an agreement
from the manager of the Cantonment (Endowment) and
2349
Offg. Commr. will then report the grant for the sanction of
suit Finl. Commr.
In No. 493 of 23
rd
Dec: 1964 submitted this argument.
The argument is on record under signature of Mohammad
Asghar and Mohammad Afzal Ali.
Commr: in his No. 867 Dt/ 9
th
Septer: 1865 forwarded copy
of J. C.'s 2105 dT/ 5/6 Septer: approving of the selection of
land made by the Off: Dy. Commr. of Fyzabad for
Janamsthan mosque.
In accordance with these orders all other suits relating to
the village having been disposed of, I now decree as
follows:
Decree
The superior proprietory right in Mauza Bahoranpur is
decreed revenue free to Mohammad Asghar and
Mohammad Afzal Ali."
2350. Exhibit 26 (Suit-1) (Register 5 page 91-93) is the
plaint dated 22.02.1870 of the suit filed by Mohd. Asghar. It
says:









/

2350








)
(













| ii -i- i l-l r|n -ii i- i- ni
r | i nr| li ii l~ i-, -ni sz -i r--
n n r - i i- i ri - i r ii ii| i-
i- ni r| i i zz n-n s/ ; o
ni i -n zr o r-n
- r-- n -i r-- ii r |
- n | in| - n~| -l i| i - -ii i
i ri - i r
2351
ii i + i /,z || |ii - z ni ;-|
i ir i ii -l i| i -l - -ii
i -il - ii r- -i- |-|
n| i-n,
iri linin - l i-i -l i| i - -ii
i niri n i - | i n ni
r- i i ini r l~ ni z ;-| i n r-
ii ni r- ii ri r - n r i il
- nl r i -i|n r|n | iir |ii
ni r- i i ii - il- r- i i ri r l n
| - r iir| - lii i r- i i r i n
i ir -i li n i ; i- lii -i
r i r| i (-|) ir ri r i | s -i i r
i r| r ; l~ - iin il r- - i -i i-i r -i
nr ri ln | r- ii | r ; r i ni ril- ri ri
r i i r|n - -i -i -iii i i - i - ; i-
i ri - i r l-l - -i r - i ii l ln |.
r- ii | r ; r l in lrin i
-i-i i| - - ii r ; ii i r-
- i in li nrn i -i r ;l ii-n -
-i| r i | n; -- i r l i nr|in i-i
in ln | nili ni ;-| | ir i- r- - i
-i; i i li|
nio zz | /o ; o
r- -i o n i -i o l i- -i | ii - -i r
;i r r l i s li r ;~- | r|r
r|
(-|) -i n i -io
ii o r | in|- -i -l i||
"Copy of plaintiff included in the file of Haqiyat; Mauza
Kot Ram Chandar Pargana Haveli Oudh, Tehsil and
District Fazabad Vol. 3, Basta 132, Mohd Asghar etc.
2352
Plaintiffs vs. State defendant. Dawa Arzi Ram Kot Pargana
Haveli Oudh, decided on August 22, 1871 Bandobast 125
No. Hadbast. Syed Mohd. Asghar and Mohammad afzal
maternal grandsons (Nawasa) of Late Syed Husain Ali,
Khatib and Moazzin Masjid Babri situated at Janamsthan
Oudh vs. the Government-defendant. Claim over 71.2
Jaribi 21 trees of tamarind according to Khasra number as
per Amaldaramad Qadeem (old).
Garib Parwar Salamat,
The post of Khatib and Moazzin, Jama Masjid
Babri situated at Janamsthan Oudh is ancestral (Pusht
Dar Pusht and Naslan Baad Naslan).........21 Imli trees
have been in the possession and use of the applicants and
their ancestors since ancient times. The said right was of
Rajab Ali Shah, Fazirabad, ancestor of the applicants. The
Faqir was residing there with the permission of the
plaintiff's ancestors. He was our servant. During the Shahi
period, when the said Faqir became against the plaintiffs'
ancestor\, he was ousted from the premises. Since then we
have been in possession over Bagh Imli (sic) There was
interference/resistance by us and against Baram Das and
others a decree was issued by the Court in favour of the
objector, i.e. the applicant which remained in force in case
of Haridas Chela Baram Das but on filing of another case
Khasra number was given and the applicants are in
possession thereof......... . .It is requested that this Hon'ble
Court may after due inquiries, pass decree for eviction
from trees of Imli, Khandhal and graveyard may be
issued in favour of applicants. Deemed necessary, so
prayed.
2353
Dated Febraury 22, 70.
We Mohd. Asghar and Mohd. Afzal aver that our names
are there in theplaint. Whatever is said is correct to the
best of our knowledge and belief.
Sd/ Mohd. Asghar and Mohd Afzal. Mohd.
Asghar and Mohd. Afzal are the matriarchic
grandsons of Khatib and Moazzin Masjid Babri.
2351. Exhibit 25 (Suit-1) (Register 5 page 87-89)=
Exhibit A-20 (Suit-1) (Register 7, page 231)=Exhibit 9 (Suit-4)
(Register 10 Page 45) is a copy of the judgment dated
22.08.1871 dismissing the claim of Mohd. Asghar regarding
ownership of Kabristan in the vicinity of Masjid Babar Shah
Mauja Kot Ram Chandar while decreeing the claim over the tree
of Tamarind (Imli). The contents are:
















2354


n| -iii z n-n s/ -- i l-l r|n -ii
i - i- ni r | i nr| li ii l~
i - i-ni s -i -ir-- n n r - ; i i- i
ri - i ii ii | i-i - ni r| i| i zz
n-n s/
; ri niri - ; nr| ri i - iri - i
- ; i i r|n ii ii | l -ni ni ;-| i
i ri ii -l- i iir - -ii r|
nr | in i -ilii ni ;-| - nili - ; i
iln rini r -n -| l-ln - ; | r| ri n|| r
l -ni i- r ii -l- - -ii r | | ii|
l-l~n l| | r| ri n| rii
r - r i l
ln | r l-ln - ; ni ;-| i l -ni i-
-| i i -i- i l-- (-|) -ii i-i - ni r|
i r - ; ri| ii - ; in l-l~n ii | l -ni
ll- ri ii ln | | i li i ii i-
- l- i-n - i- | in in i -n nr|
ri l-- - -i ili n ri lii
zz n-n s/
-ni n i n n | li-n
"Copy of the judgment dated August 22, 1871, included in
the Haqqiat , Village Kot Ram chandra, Pargana Haveli
Oudh. Tehsil and District Faizabad Vol. 3 Basta no. 132.
Mohd. Asghar and others petitioners vs. Government
respondent. Claim over Arzi Ram Kot, Pargana Haveli
Oudh.
Judgment dated August 22, 1871.
Statements of the witnesses of the plaintiffs were
recorded and perused. The plaintiffs are the claimants of
2355
the ownership right of Arazi Qabristan and trees of
Tamarind (Imli), in front of the door of Masjid Babar
Shah and Janamsthan. Enquiries reveal that possession
of the plaintiffs over the tamarind trees is well established,
but the right of the ownership of the land cannot be of
the plaintiffs. This is a general graveyard and courtyard
in front of the door of the Masjid Janamsthan. Therefore
such an Arazi (piece of land) cannot be a private property.
As such it was ordered.
Decree for the ownership of 21 tamarind trees
standing in the Qabristan, bearing Khasra number,
(included the file) in Mauza Ram Kot pargana Haveli Oudh
in favour of the plaintiffs is passed but suit regarding
ownership of the plaintiffs with respect to the aforesaid
Arazi qabristan (graveyard) is dismissed. . . . . . Copies of
the decree be given to the parties. Parwana be issued to
Sadar Munsarim for necessary action. Except necessary
documents, the file be consigned to office.
Dated August 22, 1871.
Sd/- Secretary (Urdu)"
2352. Exhibit 30 (Suit-1) (Register 5 page 107-116-C) is
a copy of memo of appeal no. 56. It was filed by Syed Mohd.
Asghar Ali before the Commissioner, Faizabad against the order
dated 03.04.1977 of Deputy Commissioner, Faizabad. This
appeal was decided by the Commissioner, Faizabad on
13.12.1877. The contents of the memo of appeal are as under:
:


:
2356








:







:






:






2357




:




rini r -n



:

i r nir |i rini -l- | r ni i ni-|in

-l- | r r - n~| -l- l i -i | -l- |
i -r-n r ; i| - nil ri i ilr i - lr |
iz r i- r l - - nil
-il - -ii - -ii l ri i ilr -
- ni l ~ l i i i -i l l r i ri i
i l r l l| i i -ii i| i i ; r| r
i ; ril- -inr n ;i n i i i |
| i ri ni -l - i l i -i i - i |
i r - i i i - | i i
-i - | - r i l -ii |- -i - i
s i i |i -l- ri ;i i r --|
2358
li ni r l r n - - nil - r r ;i-
i - - nil - r r r i ri -i n
i s - ir i l-l -i -i -ir-- n |i- i-
-r n i -iii / - s/s ; o ;i| r i r
rini l inir r r - -i l i -n i|
i i i ri i r l ilni i| i -n i
ni li ni ni | l| n - ilni (-|)
|i -l- i i - li i ni r i ; ni i
ilni i| i - n i ni li ni ni l
n - i lni i |i -l- i i - li i ni r
i ; nr i ilni li ii - i i ;i
in r|
i r l n nr|| i ril- -in rn - l r -
-ii r l n | r r l -i n r r l |i
rini -l- i i- ~ir i i nr| r
l r n nr|| lr rn r i - ir i -i i r
i l in -inr n - i ri ni ii | n |i -
--|i r l ;i - ir i -i i -ii i nil n
r r |i - ilr ri i |
i r l rin - l |i - | i i-n r i| l |
ii |i - i i ii i l |i - lr-in
- -n i| ii i n i rii i i or i - - -l ii
n - |i - i (-|) ;i n l-i ilr ii i
i i rn -i- n i i n| -i - i i - r
i l| nr ;i n r| l-i ilr ii r l ii|
i - i i;i r l i - ;i n
ni-| i i r l ir i ii - -lnri
- il - r i i ri ri r| ;i i - i- r l |i
ii - nil -l- - n| i i l i i - r
r ;i- l~ ~- n-ni + r --i r
lrii |i - --| ;i i ii - -n; ;i
r i r |
2359
i c |- |i - -i - nii i i ri r
i r - i |- r r l -i - i; - |
| r i i ri i in| r - - lr / -
s/s ; o ni-| r| r i i | i | n r - n - ni l
r - r r| -i ; n; -i - n i -
|i -l- i i- - | li ni r r
n - -i n i-ii i ri ni r i ri ni
- ri i ni r i i ; ni r l r -
r i| r i ri n si -i i ri i-n i il
- ii i i| | li r |
i / |i - ln-|i --| i ;i r i r l i
- ilr i l-l r - - i / - s/s ; o lni - -i
r - ilri -i ; - | i i li i i
r ni ; i -ii i r | |i - | ri il
ii li n
"Section 1. Whereas each and every place within the
boundary wall of the mosque is that of the Mosque and its
wall being the construction of Masjid itself which had been
gifted Maafi. It should be entrusted to the Mutawalli of
the mosque and not to Hindu defendants.
Section 2. That it is a general principle that matters related
to Masjid should be handed over to Muslims and matters
regarding Shivala and Temples should be handed over to
the Hindus. No law intends nor is against this principle. In-
spite of this, the subordinate officer accorded permission
to the defendants for erecting a new door in the wall of
the Masjid northwards. This act is in contravention of the
general principle and rules and can not be acted upon
simply because the defendants had never any concern with
the wall of the Masjid. It is, therefore, requested that as per
old tradition matters of the Muslims may be left to Muslims
2360
and religious matters regarding Hindus should be left to
them.
Section 3. That from a perusal of the file of case
Mohammad Asghar Appellant vs Mahant Baldeo Das
dated November 7, 1873 in this court, it becomes clear that
the order for removing the idol that is Charan Paduka
has already been passed by this Court. Now since there is
no permission to install an idol on the Chabootra, i, how
can right over the wall of the Masjid could be given to the
defendant, inasmuch as, giving such a permission would be
violative of law and justice.
Section 4. That a written evidence as entered in the order
of the officer, is to the effect that on the door of the outer
wall of the Masjid the name of " Allah" is engraved, which
is material written evidence and deserves to be taken into
consideration. This could have been presented in the lower
court in support of the appellant as required under the law.
This fact can be ascertained by spot inspection so that
evidence in favour of the appellant may come to light.
Section 5. That wherein that appellant had himself
requested that he could erect the door on his own expenses
and he was ready to do so and that door could have been
prepared and installed with cost of Rs.10-15. In that event,
the appellant could have been granted permission or the
Government itself could have done it. The defendant
belonging to other religion could not have been accorded
permission to construct the door against religious canons..
The respondent has cleverly done so for creating trouble in
future. He wanted to spend more money to place idols
along-with the door (sic). It is a matter of justice that how
2361
idols could be placed on the wall of the Masjid which
would be against all the canons of Islam. It is a Sheer
high-handedness of the idol worshippers against the
Muslims. Therefore the appellant, demands justice from
your honour so that likelihood of any possible riot in future
could be avoided.
Section 6. That there has been old controversy between the
respondent and the appellant and the Hon'ble Court has
ordered that the respondent should not do any thing new
on that place. But because of Baldeo Dass Baigragi
being underground, the order dated November 7, 1873
could not be served upon him. That is to say, that the
idol has not yet been removed as per orders. The
respondent with the intention of occupying it continues to
indulge in several activities on the wall and on being
restrained by someone, he becomes aggressive and is bent
upon to fight with him. So he has made a Chulha within
the said compound which has never been done before.
In the past, there was mere a small Chulha (kitchen) for
Pooja which he has got extended.
Section 7. That the aggrieved appellants pray your honour
to administer justice to him and after perusal of the order
dated November 7, 1873, which is enclosed in the Sarishta,
file and recent and new constructions may be removed
and the appellant may kindly be given his rights . Deemed
proper so prayed." (ETC)
2353. Exhibit 15 Suit 1 (Register 5 Page 41-43) : It is a
copy of the report dated Nil of Deputy Commissioner Faizabad
submitted pursuant to the Commissioner, Faizabad's order dated
14
th
May, 1877 passed in Misc. Appeal No.56, Mohd. Asghar
2362
Vs. Khem Dass. This report appears to have been called by the
Commissioner on a complaint made against raising of a
doorway in the wall of the disputed building. It appears that in
the wall dividing mosque by a railing, the justification thereof
was to provide a separate room on fair days to visitors to the
Janam Asthan. The document being old there appears to be
certain mistakes may be on account of legibility. It reads as
under:
A doorway has recently been opened in the wall of
the Janum-Ashtan not at all in Baber's mosque, but in the
wall which infront 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 cruch (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 2
nd
door in which the
Mohammedans can have no interest.
2. No objection was made to the opening of this second
door.
3. On the 10
th
November 1873 Baldeo Das was ordered
in writing by the Deputy Commissioner to remove an
image place on the janam-Asthan platform. A report was
made by someone (probably a police officer) that he had
gone to the house of Baldeo dass and found that the latter
had gone to Gonda. The order was explained to Gyandas
and other priests who said could not carry out the order.
The order passed on this (15) was that if the other party
2363
(i.e. the complainant) would name person on whom an
order of removal could be served-such should be served.
(i) There apparently the matter rested. There is no later
on the file.
2354. The documents collectively filed and accepted as
Exhibit A-8 (Suit-1) (Register 6, page 75-149) are of different
dates. Page 89 is a document of 3
rd
June 1878 executing a decree
with respect to evacuation and cancellation of sale deed dated
10
th
August 1876 and its English translation by Court reads as
under:

/










2364

/



ln | in ;ni; - l i-n o i /zr s//
; o
nii -iln rr i --i- zs i ni|i o -; s//
in i -n li ii
- ; -io n i- -i -in r -i || lni| ii i
lni| ii|i-
ii s,s i -i i ri ni r | i
i r - -i ;i i li i ir -- i
l-- - l- ri li ii ril| | - ;
| - i r i-n -in r i r i i i r
| i li
-i rr ni r i in . . . n| r i ln |
n| r r -io n - ; - ii| - i| i-i
-iii o n-n s/c ; o in lr-i -| i| -ii ri ni
r | i il-ni - irn i i n i- - ilr-
o ri i| - ; -
i || c i iii in i ni|i - i
i li i lii s s/s
ii - ; --- z/
- rnii s i
nii | zr i
- nl i | i|
Claim petition no. 2775/1877, value 515/-, Stamp value
29/- date of Ruju 12th of May 1877. Adalat Bandobast
District Faizabad. Plaintiff Mohammad Asghar Vs.
Musammat Humaira Bibi and Sunder Tiwari and Bhola
2365
Tiwari and Kanshi Ram defendaants. Claim of 3/8
th
part of
Zamindari rights of Mauza Bahoranpur Pargana Haveli
Oudh. Today this claim was presented in the Court of Shiv
Prasad Saheb Extra Assistant Commissioner District
Faizabad. The counsels of the plaintiff and defendants were
present to contest the case. Whatever the parties claimed
was considered fully. Therefore this Court allows the
decree in favour of Mohammad Asghar, the plaintiff who
has prayed for the evacuation and cancellation of the sale
deed dated August 10, 1876 for part of Zamindari Mauza
Bahoranpur Pargana Haveli Oudh executed by the
defendants no. 2 to 4 in favour of defendant no.1. The cost
of plaintiff with interest at the rate of Rs. 6/- percent per
annum from today till the date of deposit will be paid by the
defendants to the plaintiff. This 3
rd
day of June 1876.
2355. Exhibit A-8 (Suit 1) (Register 6, page 75) is claimed
to be a copy of the statement of income and expenditure
submitted by the earlier Mutwallis in the court of Civil Judge,
Faizabad in Suit no. 29 of 1945. It is said that the aforesaid
document gives the details of expenditure of the period of 1299
Fasli, 1306 Fasli and 1307 Fasli. This document and its contents
have not been proved. It is said that the same were marked
Exhibits by the trial judge himself on 26
th
August 1950 since
they were filed after obtaining copy thereof from the record of
the Court of Civil Judge where they were filed in earlier
litigation. Sri Jilani learned counsel for Sunni Waqf Board could
not tell as to how the contents of the said documents can be said
to have been proved or treated to be correct in the absence of
any witness having proved the same. It is not the case of the
defendants no.1 to 5 (Suit-1) that any legal presumption can be
2366
drawn in respect of correctness of the contents thereof under law
or that the said document constitutes a public document having
been filed before any competent authority in accordance with
law.
2356. In Sri Lakhi Baruah & others Vs. Sri Padma
Kanta Kalita & others JT 1996 (3) SC 268, the Court
considered the presumption of old documents under Section 90
of the Evidence Act and held in paras 15 to 18 as under:
Section 90 of the Evidence Act is founded on necessity
and convenience because it is extremely difficult and
sometimes not possible to lead evidence to prove
handwriting, signature or execution of old documents after
lapse of thirty years. In order to obviate such difficulties or
improbabilities to prove execution of an old document,
Section 90 has been incorporated in the Evidence Act,
which does away with the strict rule of proof of private
documents. Presumption of genuineness may be raised if
the documents in question is produced from proper
custody. It is, however, the discretion of the Court to
accept the presumption flowing from Section 90. There
is, however, no manner of doubt that judicial discretion
under Section 90 should not be exercised arbitrarily and
not being informed by reasons. ... The Privy Council, upon
review of the authorities, however, did not accept the
decision rendered in Khetter and other decisions of the
High Court, where the presumption was attached also to
copies, as correct. It was indicated that in view of the clear
language of section 90 the production of the particular
document would be necessary for applying the statutory
presumption under Section 90. If the document produced
2367
was a copy admitted under Section 65 as secondary
evidence and it was produced from proper custody and
was over thirty years old, then the signature
authenticating the copy might be presumed to be
genuine; but production of the copy was not sufficient to
justify the presumption of due execution of the original
under Section 90. In this connection, reference may be
made to decisions in Seethayya v. Subramanya (56 IA 146:
AIR 1929 PC 115) and Basant v. Brijraj (AIR 1935 PC
115). In view of these Privy Council decision, disproving
the applicability of presumption under Section 90 to the
copy or the certified copy of an old document, in the
subsequent decisions of the High Courts, it has been
consistently held by different High Courts that production
of a copy or a certified copy does not raise the presumption
under Section 90. . . . . . . .But if a foundation is laid for the
admission of secondary evidence under Section 65 of the
Evidence Act by proof of loss or destruction of the
original and the copy which is thirty years old is
produced from proper custody, then only the signature
authenticating the copy may under Section 90 be
presumed to be genuine. . . . .In the facts of this case, the
presumption under Section 90 was not available on the
certified copy produced by the . . . . .it is the discretion of
the Court to refuse to give such presumption in favour of a
party, if otherwise, there is occasion to doubt due execution
of the document in question."
2357. Had it been a document filed by the defendants
Hindu-parties, even if not proved, it could have been relied
against them. But when the plaintiffs have filed said document,
2368
it was their obligation to prove it. A document filed in an earlier
litigation in a Court of law, and after obtaining a copy thereof
from that Court, if it is filed in another Court, it would not be
either a public document merely because a certified copy has
been issued by the Court, or an old document received from the
proper custody. The person who is filing it has to prove the
same.
2358. We, therefore, find it difficult to place any reliance
thereon.
2359. In any case, we have gone through the said documents
also. The expenditure documents with respect to 1306 and 1307
Fasli in the initial part mention the words Masjid Babri but in
respect of 1299 Fasli (i.e. 1892 AD) it does not mention the
words Masjid Babri. Instead it mention Jama Masjid or
Jama Masjid Oudh or Masjid Idgah situated at Ranopali and
Idgah. The English translation of the details of the expenditure
as contained on page 93 and 94 (Register 6) of Exhibit A-8
(Suit-1) in respect of income and expenditure account with
respect to 1299 Fasli reads as under:
State of income and expenditure Mauza
Bhooranpur and Sholapuri Pargana Haveli Oudh. Milkiat
and Maafi Mohd. Asghar for 1299 Fasli, the copy of which
submitted to Mr. Munshi Mahadeo Prasad Deputy
Collector.
Mauza Bhooranpur Mauza Sholapuri
No. of Bighas 114-19-0 12-7-0
Lagani Khan 307-13-3 160-0-0
Realized 200/- 150/-
Balance 107/- 10/-
Petty expenditure as per amaldaramad and Malguzari of
2369
the Government.
Amount Sewai Jama 14/12
Patwari 9/12
Salary of Chaukidar 16/-
Raghubar Dayal Patwari 3/12
Cash 1/- adjustment of lagan 3/12
Haq Tehsil Numberdari 30/-
Miscellaneous etc 5/-
Banwai-self 9/12
applications.2 1/-
------------
262/12
Expenditure for Jama Masjid and Eidgah
and other expenses related to them 217/15
Petty expenditure regarding Jama Masjid Oudh
81/11, 93/3
Salary of Mansoor Ali Moazzin, Annual 36/-
Salary Haji Ahmad Mir for pesh Namazi and Juma 18/-
Annually
Tel Batti 3 peepa @ 2/7 7/5
Clay utensils, Matkey, Ghara, Lota etc. -/8/-monthly 6/-
Patti Chatai 100 6/2
Farsh Chandani 5/-
Candle stick for lighting on the roof 10 Paun@-/5/-per pon
3/2/ 29/8/-
White wash of Jama Masjid: 25/-
Lime 15 monds @ Rs. 1/- 15/-
Contractor for white washing 9/-
Qand-e-Siyah -/8/-
Moonj Kuchi -/8/-
Making of Bamboo ladder -/9/-
2370
Utensils Matkey -/4/- 24/-
156/11/-
Expenditure in respect of Masjid Eidgah situated at Rano
Pali
Eidul Fitra 11/8/-
Gilauri Pan 3/-1/-
Itra 2 tola 2/-1/-
White wash of Eidgah 4/-1/-
Zoroof Matkey etc. -/8/-
Bhishti (Waterman) -/8/-
Charity etc. 1/-1/-
Cartage for Farsh etc -/8/-
Safedi Baqreed at Rano Pali 4/4/-
Gilori Pan 1/4/-
Itra one tola 152. 1/-1/-
Zurrof Matkey -/2/-
Beggars 1/-1/-
Cartage -/8/-
Judicial expenditure regarding various cases 24/-
Regarding case of Bhagwat and Kalyan Das -
graves of Haji Qudwa etc 9/-
Judicial expenditure for Eidgah 10/-
Contribution for Qabristan 5/-
2360. The documents pertaining to grant show that the
same have nothing to do with any Idgah or Muslim religious
place at Ranopali, which is quite at some distance from Mauza
Ramkot. The expenses shown in the above documents in respect
to 'Jama Masjid' and 'Idgah' as well as on the two village
Bhooranpur and Sholapuri, ex facie do not appear to have any
relevance with the building in dispute.
2371
2361. Moreover, Page 81 Register 6 is a document in the
form of an application by one Revati Ram Tewari Zamindar,
resident of village Bahoranpur filed at the time of payment of
Muavaza (compensation) before the Dy. Commissioner, District
Faizabad on 16
th
April 1866. He claims to maintain his Patta
regarding collection of fish; Abadi and building of Patta Kham
Tahsil. The Dy. Commissioner, it appears to have ordered for
consignment to office on 16
th
April 1866. In fact all the
documents refer to some dispute in respect of the land at
Bahoranpur and have no relevance for the site in dispute..
2362. Exhibit 24 (Suit-1) (Register 5 page 83-85) is a
copy of the plaint dated 22.10.1882 of Suit No. 374/943 of 1882
filed by Mohd. Asghar against Raghubar Das claiming rent for
use of Chabutara near the gate of the disputed building for the
period 1288-1289 Fasli (1881-1882 AD). The contents of the
plaint are as under:

2372

2373


in i ir ri , ii,
. | ii -- l-l -i-i l -| o
s/,ss ,sss o ss - -i o -ir-- n i- i
i i s.c.ss i - l ir ri nr| ii o
-i r- - n ~ o | i - i i
l - -| i | i -i|i| - rr | l-| i| -ii lri
ni r| i no ii . . . - ;
i-
i i -ri i n | -ri i - -ii i l-i r|
iii i i|
i | - i io i - i r
- ; ;- ni r |
n|r ii lii so o ii -| i i nn i
ii -l i| i in - i in| i i--| li
r|n in o zss o i in o zss o lri ... .. . . . .
. - -i
. r l r i i ii -l i| - -ii
l-ln - ; r l l |- i- i - i in|
i i- i -| | n; i- - iin i niii r ri
i| r ir in r l l i -|i r-ii sr o iii
rini r n| - ; - i r l- l-i l- r
- ; i l- r - i r r| ir- n|- n r|
z. r l o zss o - ri in| i i- i -|
- i r ir ln| i sr o so o - -i -|i
lii -i- li n| - ; -r -|i i- | - i
io i in r i -i - nl r i lr- i r i
i -i nil in o zss | - i i; li|
zss | i - -i
so i
zss | i - -i
so i
lr-i - ; lr-i - i r lr-i - ; lr-i - i r
2374
r i r i r i r i
- ; - -nn| r l i nr|in il- in ln | ;ii
-i; i |
li ii zss o in o zss o

/.. sz c..sz ; o
- ; - l r l i s | ii - li r r| r
o -ir-- n l-|i o -io n l-|i ..
-i zz.o.sz
"Janab Sub-Judge Sahab Bahadur Faizabad.
Copy of plaint, included in the file of case no. Alif 943-
1883-1884 Syed Mohd. Asghar vs. Raghubar Das decided
on June 18, 1883.
Janab Munsif Bahadur, Tehsil Faizabad Syed Mohd.
Asghar s/o Syed Rajab Ali caste Syed, occupation-
Zamindari and Maafidari, aged about 55 years, Zamindari
Muaza Shahnawa pargana Haveli Oudh, Tehsil Faizabad-
Plaintiff vs. Raghubar Das Mahant Chela and Nirmohi
Akhara situated at Oudh resident of Oudh (defendant).
The plaintiff begs to pray as under:
Description of the claim for Rs.30/- as rent for user
of Chabutra and Takht situated near the door of Babri
Masjid Oudh and regarding organizing Kartik Mela at
the occasion of Ram Navami.
.... Haqqiat (Right) regarding 1288 Fasli and
regarding 1289 Fasli at the rate based on its use as
described in the lease.
1- That the courtyard and the Chabutra before the Masjid
Janamsthan is the property of the plaintiff whereupon,
from ancient times, is organized Mela Kartiki and Ram
2375
Navami. In other days shops of flowers and Batasha
were being stalled, the contract wherefor was of Rs.35/-
per year. The plaintiff and the defendant had agreed to
distribute this amount between themselves in the ratio of
50-50.
2- That in 1288 Fasli, before Kartik Asnan and Ram
Navami the defendant with mala fide intentions, as against
the contract of Rs. 35/- made two shares of Rs.30/- only
without consent of the plaintiff for both the festivals/fairs,
whereas, the contract was given in favour of Faqir Murao,
resident of Oudh. Action in this regard was taken in 1289
Fasli.
In 1288 Fasli Patta share of the plaintiff and the
opposite party:
Rs.30/-=Rs.15+Rs15
1289 according to Patta
Rs30/-
The plaintiff prays that after due inquiries and
observing judicial requirements a decree with costs may
kindly be passed.
Claim under 1288 Fasli
8th November 82
The petitioner is the claimant whatever he has
written in the application, is correct, Alabda.
Sd/- Mohd. Asghar Zamindar.
Syed Mohd. Asghar Zamindar, Khatib,
Mutwalli Masjid Babri situates in Oudh."
(E.T.C.)
This suit was dismissed by the trial Court on 18
th
June,
1883.
2376
2363. Exhibit 18 (Suit 1) (Page 55-57 Register 5) is an
application dated 2
nd
November, 1883 of Mohd. Asghar showing
himself as Mutawalli and Khatib Masjid Babari situated at Oudh
complaining that he is entitled to get the wall of the mosque
white-washed but is being obstructed by Raghubar Das though
he has right only to the extent of Chabutara and Rasoi but the
wall and the gate etc. is part of the mosque and the complainant
is entitled to get it white-washed.
2364. Exhibit 34 (Suit-1) (Register 5 page 131) is a copy
of the order dated 12.01.1884 passed by Assistant
Commissioner, Faizabad in case No. 19435 in respect of Nazool
of Ram Janma Bhumi, Pargana Haveli Oudh, Tehsil and District
Faizabad. The suit was filed by Mohd. Asghar against Raghubar
Das. The order reads as under:
Mr. Khudadad Beg will call up Khem Das .. and
..him to do any repair to the wall or gateway to the
mosque either of the outer or inner enclosure. The outer
door will be left open. No lock will be allowed upon it. It
is absolutely essential to observe the strictest neutrality
and maintain the status quo.
2365. Exhibit 27 (Suit-1) (Register 5 page 95-97) is a
copy of the order dated 22.01.1984 of Assistant Commissioner,
Faizabad in case No. 19435 Syed Mohd. Asghar and Raghubar
Das directing to consign record of the case. It says:






2377








ri- -i ii zz | ss ; o - -i o ssr
i - -ii i - i zz | ss ; o ;i| i
l-- - l- ir ri ii
- r-- n i- i i
i - -i ril| | i r i | i r - ir l-|
l- ;l-ni | n; i i i r-i;i | n; l
| | rini ii -l | ---n nr
i - r-- n i -ni li ni l ir| ii
nii i r lrin | r l - i- |- ri ii
i i i; -n i| -iin | i |
r - r i l
i ni n ri i i l i n ri - - -
zz | s ; o
"Copy of the order sheet dated January 22, 1884 in case
no. 19435-Janamsthan, Judgement dated January 22,
1884, Ijlasi Janab Assistant Commissioner Sahab Bahadur
Faizabad.
Syed Mohd. Asghar vs. Raghubar Das.
Today the case was called out in presence of the
parties. As per orders of the Deputy Commissioner, parties
were informed accordingly. Raghubar Das was restrained
from carrying out repairs etc in the internal and outer part
of the compound and Mohd. Asghar was advised not to
2378
lock the outer door of the mosque. It is necessary that the
old existing orders be observed and complied with and
there should be no interference in it.
Order.
All the papers be consigned.
Dated January 22, 84.
Sd/- English."
2366. Exhibit 28 (Suit-1) (Register 5 page 99-101) is a
copy of the application of Raghubar Das dated 27.06.1884
requesting the Assistant Commissioner, Faizabad to make spot
inspection of the premises complaining that the muslims despite
restrain from whitewashing the wall of the building, are
violating the same and whitewashing the wall. It reads as
follows:

2379


i-n i i -iii z/ ss - o o ssr i
i -ii i ;i| i l-- - l- ir ri
ii
i zz | ss
- r-- n i- i i
;i l-| l- ri
-ri i i -ii - -ii i ii | - ;
ni|r ii i-n i i -in
in nr -i; i |
n| i-n,
n ili r l n r l| i n| -i -i
i - ilri -i ni l i; liin i| ri n| i
- n- i ri i ni| i- r r - - -ii i |
i r| li i ri i l - - -i i i | |
r| | i | ri ; -ni | n r r -
i| - ilri -i i i ri i ni i l ;| - -i -
nr|in -in l-i -r- n ir ri r ; r n r ,
-i i - ilri -i n ni in i i i | ri i n||
n
| l| i i -ri
- -ii i i i |
-ii z/ ss ; o
"Copy of the application of Raghubar Das dated
27.06.1884 no. 19435 at Janamsthan Oudh in the Court of
Janab Assistant Commissioner Sahab Bahadur Faizabad.
Date of Judgment. .22
nd
January 1884. Syed Mohd. Asghar
vs. Raghubar Das before the Court of Deputy
Commissioner Bahadur.
Mahant Raghubar Das, Janamsthan situated at Ayodhyaji
plaintiff.
Interpretation of the claim application of the
2380
applicant. After considering the objections may kindly be
heard.
Gharib Parwar Salamat.
It is prayed that your honour may be pleased to make
the spot inspection on any day, then we shall never have
any grievance and the applicant will be satisfied. Secondly
your honour has not allowed Muslims to carry out white
wash. They are doing white wash at places where they
never have done so. This fact will become clear from the
spot inspection. Inquiries in this very case have been
carried out by Mirza Mahmood Beg. Therefore, if your
honour makes a spot inspection, the truth of the applicant's
averments would also be ascertained and as such, it is
prayed, that the spot inspection may be made by your
honour so that truth may come to surface.
Yours faithfully Raghubar Das, Qabristan
Janamsthan at Ayodhya. Dated June 27, 84."
2367. Exhibit A-22 (Suit-1) (Register 7, page
237)=Exhibit 13 (Suit-4) (Register 10 Page 61)=Exhibit 26
(Suit-5) (Register 23 Page 659) is a copy of the plaint dated
19.01.1885, Mahant Raghubar Das Vs. Secretary of State (Suit
1885) seeking injunction against the defendants from interfering
with the construction over Chabutara size 21/17. Its contents
are:

/




2381










:

:


:





:







2382
:

;i - l ir ri
-rn i i -rn -ii - -ii i i i . . . . - ;
i-
i -| i --- lr ;i i l . . .- i r
- ; - r- r
ii ;in -i; i ni-| -l i| - -iln -i; i
- i r i l - ; i ni-| -l + ni - -ii
i ii -n / l- z l- lii / l- ls- z
l- i -iln i i ni -i l li ii r| ri ni
r| ;l -i l - o / li c -|-i i - - /o ; o
i- | nii ni ii - l l n -ii i |
-i - ri n| r|
i r l -i- - -ii i ii ir
ii lrin |- i - nl - ilnir r r i
r i - ; ; - il nir i -rn r|
iz r l ni - -i i l s- z -
2383
-n l i i / l - r i i i n | r ; r
i si -i i -l i i r i r l l | l -ni
ri n| r |
i s r l ni - i - ; r
i; ;-in ri r -i - - - ; i |n i i lrin
n | rin| r| n-| - nli in - i| | -
li n | ; n -l ni-| ri l| nr i
i; r l| i r| r l~ ni-| -l - ; i
ili i r nr i ii- l- ni|
i r l i l-| l- ri ii |
-i i ss ; o - r i| - -ii ni-|
ri -l | - -iln || i in r
i n - - ii || i; i ni r i ni - ;
il- -r -i i z ini |i| ni|i s n-n s ; o
n ir -| i n - - ili | l i i|
i; i l-i| r li ii ni|i - -iln - i-
i i r in i r ; |
irr l (-|) i ir lii i ; n i r l l
nr | ;-in ir | - i -- i -| ni-|
n -- il i - l r l lii | lr i n
i r l- - - i-n i- r -
-i - il i -n -i rii - ; - -n; i r l
ln | i -l + ni - -ii i i i -n / l-
z l- lii/ l- ls- z l- -i; i l
- i r - -iln - ilr-n - ; l-n i -l
ii - -i l -- - i r i li i |
n | inin
| iiii in il-
l | -rn i i - ;
-i ii s | ssr ; o
- i i -rn - -ii ii - ; n-|
ni r l - - | ii r i in i ;~-
2384
| - r| -n r |
ro -rn i i
(Hindi Transliteration)
"Ba Ijlas Munsif Sahab Bahadur. Mahant Raghubar Das
Mahant Janamsthan situated at Ayodhya-Plaintiff vs.
Secretary of state India Ba Ijlas Council. . . . . Defendant.
The abovenamed plaintiff begs to submit as under:
Permission for construction of temple over the
Chabutra Janamsthan Ayodhya measuring towards north
17 feet, towards east 21 feet, towards south 17 feet and
towards west 21 feet may kindly be granted to the plaintiff
and the defendants may be restrained from interfering with
such work. Thhe valuation of the claim cannot be assessed
on market rate. Therefore as per Section no.17, Sub-section
(6)Appendix no. 2 of the Act of. 70, court fees has been
paid. From the enclosed map, the situation of the place
would become clear.
1- That the Janamsthan situated at Ayodhya city
Faizabad is an ancient religious and sacred monument
of Hindus and the applicant is the Mahant of this religious
place.
2- That the Chabutra Janamsthan measures east-
west 21 feet, North-south 17 feet, wherein Charan
paduka are stalled and a small Mandir is placed there,
which is worshipped by the Hindus.
3- That the Chabutara is in the possession of the
plaintiff and there being no building or shed, the petitioner
and other Faqirs have to face all the seasons (in the open).
In summer, we face sunheat, in rainy season rains and in
winter severe cold. There is no harm to anybody if a
temple is constructed there, rather by the construction of
2385
temple, the petitioner, Faqirs and other travellers would
rest there and will get all comfort.
4- That on the objections of some Muslims the
Deputy Commissioner Faizabad, in March or April 83,
restrained construction upon which the plaintiff sent an
application to the local Government. When no reply was
received, the plaintiff filed a notice under section 424
C.P.C. on August 18, 84 in the office of the Secretary,
Local Government but this one also met the same fate. As
such the cause of the action arose in Ayodhya within the
jurisdiction of this Court, on the date injunction order was
granted.
5- That a well wisher citizen has a right to construct
a building as he likes, on the land under his possession and
ownership. It is the responsibility of a just Government to
protect rights of the citizens and help them secure their
rights so that peace and order may prevail and things
could be managed. Therefore, the plaintiff prays your
honour that a decree may be issued in his favour for
constructing a Mandir over the Chabutra Janamsthan
situated at Ayodhya, North 17 feet, South 17 feet East 21
feet and West 21 feet. The respondent may be restrained
from creating any interference in the construction of
Mandir. The cost of the case may be imposed on the
defendant.
Details of documents.
Receipt from the post office.
Yours Faithfully Mahant Raghubar Das, Mahant
Janamsthan Ayodhya-plaintiff, dated January 19, 1885.
I Raghubar Das Mahant Janamsthan Ayodhya-
2386
Petitioner, verify that the foregoing paras 1 to 5 are
correct to the best of my knowledge and belief.
Sd/- Raghubar Das."
(E.T.C.)
2368. Exhibit A-24 (Suit-1) (Register 7, page 271-275) is
a copy of the report dated 09.12.1885 submitted by Gopal Sahai
Amin a Commission appointed by the Sub-Judge Faizabad in
Suit No. 61/280 of 1885. The report says:











li - -| -i i ni i ri -|i - ii s l-
ssr -- i l-- - -i c, zso sr ; o
- -i -r n i i i- ir - | i -- -
- li z l-, ssr ; o
i|ir
ni-| r - in -ii - iii i i - i
-i n| | ii -ii - -n li ni l r--ni li -
rii i ni r i - ln i | -|i ni r ;
-iii - ; - ii c l- ssr i -i; -|
ni - nii nr| r i|
-nin nii ri -|i
"In the Court of Sub-Judge, Faizabad.
2387
Copy of the report of Amin filed in Gopal Sahai
Commissioner dated December 9, 1885, included in the file
of the case 61, 280, 685, Mahant Raghubar Sahai vs.
Secretary of State, decided on December, 24, 1885.
Respected Sir,
In compliance of the orders of the Court an inspection of
the spot was carried out in the presence of the parties
and a map was prepared on the basis of which the report
is being submitted and a fee of Rs. 1/- deposited on
December 6, 1885 and after due measurement this
Chabutra was described as disputed.
Sd/- Gopal Sahai, Commissioner"
2369. Exhibit A-25 (Suit-1) (Register 7, page 277-281) is
a copy of the map submitted by Gopal Sahai Amin's
Commission on 06.12.1885 in the Court of Sub-Judge, Faizabad
regarding the disputed place as it stood at that time showing
Ram Chabutara, Sita Rasoi and Bhandara in the outer courtyard.
(Exhibits A-24 and A-25 are also filed collectively as
Exhibit 15 (Suit 4) Register 10 Page 75)
2370. Exhibit A-23 (Suit-1) (Register 7, page 255-269)=
Exhibit14 (Suit-4) (Register 10 Page 65) is a copy of the
written statement dated 22.12.1885 filed by Mohd. Asgar in the
suit filed by Raghubar Das against the Secretary of State
wherein he was allowed to be impleaded as defendant no. 2. It
reads:

2388





:













:







:


2389
:














:














2390



| ii r i ri
(-|) l-il - i r
i i -rn l-i r| iii i i . . . . . . . . .- ;
i-
i ri lr -i r-- n in|- - n~| i-
-l- i i . . . . .- i
n|r ii ni-| -l + ni rini -l- i|
n | il -i i-n
i r l - -i r n i -irni ;i r n
r i r n s n| ii - ; n ili ri n| r
-n nln il -i n - n n ili ni r ()
r l i iir -il - ~ iiir r
-l- ni-| li rini -l- i + n|
~ir i i li -i | -il i
nr| -i| ni - ili -il - ~ -i ni-| nir iiir
n l-ln i | ri i | r| nin
iiir ni-| li -l- -l- rin i
i- - i- iiiir i; -| r -| l
ni r - li - ; i | ri - ; -il -| i
r| ri ni r | - ; r n ; l-ln l-n ni
i; -ni l iiir -i i l| i iiir ril-
n i r| l l - ; l-n ; - i -|
l-ln ril r| | ni n | l-ln - i
;i i ; r i -l i i r| r|
i z n - ; rini -l- i- n r i l
- iln r | l-ln i r r
-nni ri ni r r| r| ri ni i l ilr r l
;-i- i i -l- - il ;-iin -i - ilr r ;-i- -
i- n|in -i |n i- - r- ii i ni i
2391
r in r i | li in r | r ;i- | - -iln
r| ri n| ;| nr r ;i- -il r - in i- n
in r ni l| - i- i- n i i i li
i r - i- | l-ln r| ri ini|
i s i l r r l n ni -| -l - ni src
; o ; - i - ni r| i i | sr/ ; o - i i
;l-nn ii - -ii r - ii n i i r i
ilr r l li ; n | sr/ ; o r ; r |
i i ni -i r - r l i (-|)
ni | l ilniin li-n ii-n i- n r
; n r| r ilr r l li-n ii -n - ; i
l in ri i nri ; - r i ; - |
i i- i n | sr/ ; o i| l niin -ilii
- ; i ril r i l~ n - ; i l| lr i;
- | rini -l- i iri | i
- -iln | n; i | n| -| s ii ii r
l--i i i li ni ni r| - i- ;i r l scs
i - - sr/ ; o i i; l-ln i
l| -ilii l l-ln - ; ilr ri ril
| ni i; r i rini -l- i -l-
-l i i ii r| ri ni r r i - ; l ni
r-ii r , i l ni r-ii r ni -l i i i|
ilni r-i r -r iln - r| n n r-| - ; |
r i l n -i i ii i i i| i lni
-ilii li l| ni r| r |
i r ri- - nil i in - i nl - ili r-
- i r l-n - -iln - | ;lri- -i i ;
|ni | ;lri- -| i | i| i| lri
-i- |- - l-ln - ; ;ln i- n
i -i r ;-i- r i n r i ii i l ni
i i |n i -i i| l r | r i -nili ;
- - i r n il- r-i iin r i r| ri-
2392
i r - zs |, sr/ ; o - ; i r li ii
i r ; r -in il ii ri i r ; i -i ri-
iini - | in |i| i| -i i i| r| -i n||
i r il i| r - ; i - i r| ii i
li ii i| n|i ; - -i - - i r| ri n i
ri- lii i; i il ri i lii i r
i l - i| ri- ilni li i| n|i il- in|
r ;l --|i r l i - ilri in in in ii
ii - ; r | -i; i , il ii li|
l| -| -ir-- n - n~| -l- i|, - i r -i l i
zz l-, ssr ; o -i n -i r-- | i -i | -i r--
i - i r
(Hindi Transliteration)
" Application before the Sub-Judge Bahadur filed by the
opposite party.
Raghubar Das Mahant Nirmohi Akhara situated at Oudh-
Plaintiff vs. Sarkar Bahadur Qaisere Hind and Mohd.
Asghar Khatib and Mutawalli Jama Masjid situated at
Oudh. . . . . Defendant.
Suit for the construction of a Mandir over the
Chabutra in the compound of the Masjid Babri. Gharib
Parwar, Adiley Zamam Salamat.
1- That the case is very clear and needs justice.
Though the arguments and objections of the plaintiff could
be detailed here but with the fear of the lengthy process,
the plaintiff submits in brief as under:
(i) When the Babar Shah Maalike Mulk and the king,
constructed this mosque and got engraved Allah on the
Sangi of the door of the Ahata Masjid and granted Maafi
for the expenses, nobody else can claim the right of
construction over there. Therefore until the king who has
2393
constructed the Masjid, allows to carry out construction
within the compound of the Masjid or any successor of the
King gives permission with respect to any part of the land
of Masjid for construction or has given any part of the land
to successors of the plaintiff, he could not become the
owner of the land. The plaintiff has not submitted any
documentary evidence regarding the ownership of the
Chabutra. Neither the said Badshah nor any of the
successors, or any other designated officer has given its
ownership rights and as such in the eyes of law and justice
he has no right to construct a Mandir over the said piece of
land.
2- If the plaintiff thinks, he or the Hindus have any
ownership right over it, the same is not correct, because it
is clear that sometimes in Imambaras, Masjids and
tombs and in other monuments, Muslims organize
different congregations on different occasions. During
other days Hindus also offer Nazr-o-Niaz. The Muslims
do not stop their entry into the building. Similarly
Muslims go into the religious buildings of Hindus also.
Therefore, going of a person into and out of any
building for offering Nazr-o-Niyaz does not make him
owner or confers proprietory right of that place.
3- It is also clear that from the time of the
construction of the Masjid till 1856, there was no
Chabutra at this place. This was constructed in 1857 and
on application of the Muslims the order of digging out
the Chabutra was passed. Therefore, it is clear that the
Chabutra was constructed in 1857.
4- Now it deserves a tension as to how a new
2394
Chabutra has been constructed for the meeting of
Hindus. Their entry was subject to condition that nothing
new would be done. As such since 1857 the petitioner has
no ownership rights, instead if the plaintiff or any other
Hindu tried to carry out any new activity, the Government
restrained them. One Faqir made a thatched hut
(chhappar) as Kuti which was demolished and he was
ousted from that place. This requires justice inasmuch as
for 368 years generally and from 1857, in particular, the
plaintiff could not produce any document to show his
ownership. He can never have any right to construct any
temple on the floor of the Masjid. The claim of the plaintiff
that the Chabutra is theirs and thereby acquired right to
construct any temple, it is a mere misunderstanding
because the plaintiff has no ownership right or liberty to
use the Chabutra or offer gift (Charhawa) over the
Chabutra.
5- Copies of various orders passed at different times
restraining the plaintiff from carrying out construction
activities and orders for demolition of the house and
Rasoi of Sita Ji and the Kuti which the Faqir has made,
as per record are not the property of plaintiff. It would
cause violence between Muslims and Hindus, which had
taken place earlier. Orders have been issued under the
authority of the Government. They are all related to this
suit and are proof of our claim. The same orders,
particularly the order dated February 23, 1857 gave rise
to cause of action as such limitation for hearing has
expired. Therefore the Civil Court could not overlook these
facts. Therefore, the orders are in force. The petitioner did
2395
not get them cancelled. They could not be set aside without
proper judicial verdict. Any such decision in contravention
of the aforesaid order would be illegal and unlawful, as the
same are self speaking and have not yet been set aside.
Therefore, it is requested that after perusal of the
documents and objections the claim of the obedient
applicant objector may kindly be considered
sympathetically. Deemed necessary so requested.
Yours faithfully Mir Mohd. Asghar, Mutawalli
Masjid Babri, respondent. Dated December 22, 1885
through Mohd. Nazir Khan and Maulvi Mohd. Afzal,
counsel for the respondents.
2371. There are three judgments i.e. of the trial Court, first
appellate and second appellate Court in Suit 1885:
(a) Exhibit A-26 (Suit-1) (Register 7, page 283-
317)=Exhibit16 (Suit-4) Register 10 Page 79) is a copy of
the judgment dated 24.12.1885 of Sub-Judge Faizabad in
Suit No. 61/280 of 1885, Mahant Raghubar Das Vs.
Secretary of State and another.
(b) Exhibit A-27 (Suit-1) (Register 7, page 319-
323)=Exhibit 17 (Suit-4) Register 10 Page 87) is a copy
of the judgment dated 18/26 March 1886 of the District
Judge, Faizabad in Civil Appeal No. 27 of 1885, Mahant
Raghubar Das Vs. Secretary of State for India of another.
(c) Exhibit A-28 (Suit-1) (Register 7, page 325-
329)=Exhibit 18 (Suit-4) Register 10 Page 93) is a copy
of the decree dated 18/26 March 1886 in Civil Appeal No.
27/1887, Mahant Raghubar Das Vs. Secretary of State and
another. In the said decree the order passed in appeal is as
under:
2396
"This appeal bring on for hearing on the 18
th
day of March 1886 before Collector, F.E.A.
Chamier, District Judge in the presence of B.
Kuccumul vakil for the appellant and P. Bishambhar
Nath, Government Pleader ......(sic)......vakil for the
respondents it is ordered that the appeal be
dismissed with the remarks of the Sub-Judge
quoted in the judgement of this Court declaring
the right of property to rest in plaintiffs be
cancelled and the cost of this appeal amounting to
Rs. 72/5/- as noted below are to be paid by plaintiff
accepting 16/- Mahomad Asghar's pleader's fees. The
cost of the original suit are to be paid by the plaintiff
with above exception .....given under the hand and
seal of the Court this 18/26 day of March 1886."
We have already dealt with these three documents in
detail while discussing the issues relating to res judicata,
estoppel etc.
2372. Exhibit 49 (Suit-4) (Register Vol. 11, page 271 to 329)
is a copy of the nakal khasra Abadi, Kot Ram Chandra, pergana
Haveli Awadh, Tahasil and District Faizabad of 1931 A.D. of nazul
register. At page 311, the Hindi transliteration of the aforesaid
Exhibit, original whereof is in Urdu, the entry of Nazul plot 583 is as
under:
(Name of building) (1) : Masjid Ahad-e-Shahi
Number Aarazi (2/1) : 583
Raqba Aarazi (Area of Plot) (2/2): 305/9 B. 15 Biswansi 4
Kach.
Number Sabiq (Old) (3/1): Abadi 444
Raqba Sabiq (Area old) 3/2): 7 B. 11 Biswansi 14 Kach.
2397
Name Malik Aarazi (Owner) (4) : Masjid Waqf Ahde Shahi
Name Matahaddar (Subordinate), if any (5):
Name Kabiz Haal (Presently occupied by) (6) : Masjid
Kism (Nature) (7) : -
(9) Raqba (Area) : 9 B. 15 Biswansi 4 Kachh.
(1) Baadaye Lagan (2) Bila Lagan
(Without Rent)
Kandhal (10) Bajariye Missil Numbari 427 No. 6/47
Dastandazi (11) Raiganj, Munfasla 26 February San 41
(12) Indraz Raghunath Das Janambhumi Ke
Raqba (13) Mahant Mukarrar Kiye Gaye, Ke Bajaye
Lagan (14) Mahant Ram Sharan Das."
Khet numbari (15) No. of plot
Kaifiyat (Details) (16) Masjid Pokhta Waqf Ahde Shahi andar
Sahan Masjid Ek Chabutara Jo
Janambhumi Ke naam Se Mashhoor
Hai, Darakhtan Goolar Ek Imli Ek
Mulsiri Ek, Pipal Ek, Bel Ek..Masjid
Mausma Shah Babur Shar Marhoom.
.c.
(Note : Though the original document is horizontal, but for the
purpose of convenience, it has been typed vertically.)
On page 331, Nazul khasra map's copy has also been filed,
which is part of the Exhibit 49.
2373. Exhibit A-49 (Suit-1) (Register Vol. 8, page 477) is
a copy of order dated 12
th
May 1934 showing that Muslims were
permitted to start the work of cleaning and repairs of the
disputed building from 14
th
May 1934 onwards. It reads as
under:
"The Mohammadans have been permitted to start the work
of cleaning of the Babri mosque from Monday 14
th
May. I
have also asked them to get estimates needed for the repair
2398
of the mosque. For the purpose their contracting I would
be allowed access to the mosque when necessary.
Once the mosque is cleaned up, it will be possible
to use it for religious services. This can be allowed but
processions & demonstrations should not be allowed.
The guard should be returned on it.
S.P. to be informed."
2374. Exhibit A-51 (Suit-1) (Register Vol. 8, page 483) is
an application dated 25.2.1935 submitted by the contractor
concerned complaining about non-payment of his claim despite
repair work having been performed. It says:



















2399




) ) ( ) ( (
) ) ( ) ( (
) ) ( ) ( (
) ) ( ) ( (
) (


n| i-n, i i|,
n ili r l ni i i i| -l- i - i li ni ii
;i i- i r i n i li ;- i i i i
i- i| r ni r i ni i i r n r| n n|
r l r i i i i i i- i| r ;i - --
- r i i ; i ii i i| n r| ni l
i| | | i | n| ; ii l n
i- l r - li ni ii n ii r| r r - r i
ii l i rini r| i r-i li i ni
-i - r i l i| ri r| r i i| i ri
i i r i i| r n| i li ii ; l-i
ni i | nln s| r| i| ; r r iii |
- i|n i r| i| i- -iin i l r
n i li ni-| l ni i i r - li ni ii
l- s -i | i nr il -n li
s i nr i i- i| r ni r l- s ni i
ni n r r - i l-| l- ir ri ii
l i nr|i ir ri ii ni i i
ni r i ii i r ri ni ii l n -i i l- ni
n n -ri l i |-n li i ni ii i -i
2400
i-- -- i| r - nil i| i-i ;- -i ii r
-n r - | i ri | r ; ri lrii l
i-n rii n -i --|i r l ni i | ; - i|n
r ii i i r - il -i n il i
li iri -il r |
n| i -iin i n r - --in - , r| ~i (z) s.
ri| - r-- . i in r - r~i - n i r. rin | c.
r-n | - r~i n- i /. il | s. -| ~i s.
i ~i o. - r-- |- - r~i i-r-| . -i i z.
- r-- i - r~i lii s. r l-i |
| l| nr ii - i il iin ii -nin
nr ii
zr.z.sr
Most Respected Sir,
I beg to say that I was granted contract of Babri
Masjid. The work has already been completed about a year
before, barring certain small piece of work for a value of
Rs. 100/- or 200/-. The applicant is in dire need of money
and only little work to the extent of Rs. 200/- is remaining,
which I cannot carry out. The applicant has no other
business. Kindly provide relief to me and my family.
Besides, at the time of contract, it was agreed upon that
part payments will be made according to Vasoolyabi. I
have come to know that the enough revenue has been
collected. I have already told orally to you that I was in
trouble and needed money. During this time the applicant
was not feeling well, so, he could not convey his grievance
again. Secondly, the applicant was required to construct
the houses which were burnt during the riot, out of
which 13 houses of Khaprail have been repaired before
the rains commenced. A small piece of work in relation to
2401
doors etc is remaining. Further under the orders of the
Deputy Commissioner Faizabad through Tehsildar (Nuzul)
Faizabad, certain trees and shrubs were allotted to the
applicant with the assurance that whenever the applicant
gets money the price of the aforesaid would be deducted
from the bill. The applicant has already collected material
for repairs of the remaining houses. But due to paucity of
of required money the applicant remained idle. So, I would
request you to kindly consider my grief sympathetically and
provide money to me and for this purpose. kindly issue
necessary orders. Deemed necessary, so prayed.
Malik Hujoor.
Details of the lhouses constructed : (1) Mst. Maqsudan, (2)
Habibullah, (3) Haji Noor Mohammad (4) Khairat
Hussain, Mohalla Mughalpura, (5) Sahadat Ali 6. Rahmat
Ali, Mohalla Begumpura (7) Abid Ali (8) Aminullah (9)
Afzalullah (10) Mohd. Karim Mohalla Sothati (11) Maula
Bux (12) Mohd. Bux Mohalla Kaziana (13) Zahoor Miyan.
Applicant Tahavvar Khan Contractor, r/o Lal Bagh
Faizabad
25.2.35."
2375. Exhibit A-50 (Suit-1) (Register Vol. 8, page 479) is
a letter of Tahawar Khan Thekedar regarding repair work in the
disputed structure and says:






2402






i-n nr ii - i -iii c , ssr ; o
-i- i l- i| -l- i i, ii
r i ril- nr| ir ri ii i- ir
n| i-n
i i| n ili r l i| -l- l - ;
r r ; r l i i - i i - n i ri ri r| i| n
ii r| -n l r - r i ili ri r | -i
n-- i| l- ~i lii i ni - -- r| li r ii
i- i l r n - ri i ni -iin l ;
r n ili ni| i i- i| ii ri ri r |
il r|
| l| nr ii - i il iin, ii
ro nr ii
c..sr
"Copy of the application of Tahawar Khan Thekedar dated
16.4.1935 included in the file of Babri Masjid, Ayodhya,
Faizabad.
To the Tehsildar Saheb Bahadur, Faizabad
Gharib Parwar Salamat.
I beg to say that delay in submitting the bill for Babri
Masjid occurred because Kalsa (pitcher) of the Dome is
being prepared in Banaras and has not yet been
received. But under your orders I am submitting the same
now. The piece of marble stone on which "Allah" will be
engraved, has not yet been got ready. I hope both the said
2403
jobs would be done within a week. The bills in respect of
houses will be submitted within this week. The remaining
work is in progress. Yours sincerely, Tahauwar Khan
Thekedar resident of Faizabad 16-04-35." (ETC)
2376. Exhibit A-53 (Suit-1) (Register Vol. 8, page 493) is
a copy of the application of Tahavvar Khan, Contractor, dated
2
nd
January 1936 for early payment of his dues in respect of
repairs of Babri mosque filed before the Tehsildar and reads as
under:

n| i-n i i| n ili r l -iin ii i
l - n i| li ni i i - -- l r r n
i r i i ni i i i i| n r| l-i i i n
-i - r i l --|- - -iin i ni ri ni ; r i
;|l |o o|o i| -l- i l l-- i
i li| -iin i l n --|- - r ni i| iri
2404
; --|- - i i i nr|i ir - |o o|o
i i ii ni i --|- - li ni| l| i| -
i -i r n r - ri ni i ;i i ;| i| i
ni r -ri| - i -ii i l i ;|l ir
i ii li i nil l ri i ni i i i
l- i i l | n n r il r |
|
l| nr ii - i il iin ii|
z..sc ro nr ii|
"Garib Parvar Salamat,
Janabe Ali, Respectfully it is submitted that certain houses
in Ayodhya were burnt in the riots, which were constructed
by the contractor long back but the contractor could not
get the money so far. The query in this behalf revealed that
estimate concerning those houses had been lost somewhere
and due to which the Engineer of PWD after perusing the
bill returned the file. The payment of bill could not be made
in absence of estimate. Respected Tehsildar Saheb,
Estimate of Nazul rate was obtained from the contractor
again, Urdu copy whereof is available with the applicant.
If ordered, the applicant can produce the same or copy of
the said, My bills in respect of houses may very kindly be
sent to Engineer Saheb so that the bills may be checked
and contractor may get money because he is in dire need of
money.
Applicant Tahavvar Khan, Contractor, R/o Lal Bagh
2.1.36."
2377. Exhibit A-46 (Suit-1) (Register Vol. 8, page 469) is
a copy of report of Mubarak Ali, Bill Clerk dated 27
th
January
1936 which reads as under:
"The bill of the contractor regarding the construction of the
2405
mosque is herewith put up as ordered. As regards the bill
for the burnt houses, the estimates of which have been lost,
has recently been sent to the Nazul Naib Tahsildar under
the orders of D.C. for checking the work done by the
contractor on the spot."
2378. Exhibit A-52 (Suit-1) (Register Vol. 8, page 489) is
another copy of the complaint made by Tahavvar Khan,
contractor on 30
th
April 1936 to the Deputy Commissioner,
Faizabad, complaining about certain claims disallowed by the
PWD authorities and reads as under:


3287

















2406



n| i-n,
n ili r l i i l in ---n -iin i
i i - ln sco i s ii i ii l- i i l
szs/ i ii c i; li ni r| -| | r r -i - ri n|
r l i i nr|i ir ii ii iiln
i- ---n r n| li l i n| i | -i -i;
; ii | |-n -iln| zs i z ii, c i ii
s i; - ln c i, i | i i lili |
|-n i - ln / - ln | i i|ri
n i -- -- - s ii | -i-i; ; i li li |
|-n - - ni |o o|o zs i z ii, c i
ii s i; , / i - | i| i ;| - nil~ i
ii li li ii r nii ii i i il
; i li i r ; rin - r| l-| ni ; r r
-| n| | n; r rii l ii lili n| i i
- - rln n i r| ri n| | rin ii i --|i
r l s i i i ; lili - | i |o o
|o iii i | i i i i li i -r-n
-ii i i i l in -l i| /zzs o i ii
l- i i cszr o z io li ni r| i| os o
io - i- li ni rii l --|- - i - r i ii r
/szs o i ii i i --|- - - l li ni lrii
i i -nii i l i i | - i | r| i-
| n; l- r i ; - nil~ |
l| nr ii - i
nio so sc
" Gharib Parwar Salamat. I beg to state that my bill for the
repair work of the houses was to the tune of Rs. 3604/- out
of which the applicant has been paid 3287/1/6 only the
2407
reason for the officer under payment seems to be that the
officer Nazul and Naib Tahsildar Faizabad at the time of
inspection during repairs, proposed that the thickness of
the two doors of 1-1/2 inch, valued at Rs 23/12 and Rs
16/11/3 be reduced to Rs 16/- and Rs 11/- respectively, the
price of the windows was reduced to Rs. 4/ instead of Rs 7/.
Sir, at the time of inspection of the after reducing the
thickness of the three doors to 1-1/2 inches and that of
windows the P.W.D. after revision of the price, approved
Rs 23/12/-, Rs 16/11/3 and Rs 7/- respectively, and
accordingly fixed the doors and windows years back. At the
time of inspection of the officer incharge, those were found
not in new condition, that is why deduction was proposed
although the new doors and windows could certainly not be
prepared at the proposed price. Therefore it is requested
that inspection and revaluation of 3 doors- 1-1/4 inches
and rates of the windows may be made by the P.W.D. and
the applicant may kindly be paid his remaining amount.
Applicant's bill in respect of Masjid Babri was of Rs.
7229/- out of which he has been paid Rs, 6825/12/- i.e.
short by Rs 403/41- though the estimate was approved for
Rs. 7329/- and the applicant has been paid lesser amount.
Therefore the applicant may kindly be furnished details as
to which amount has been deducted so that the applicant
may move your honour. Applicant: Tahauwar Khan the
thekedar dated April 30, 1936."
2379. Exhibit A-7 (Suit 1) (Register 6, page 63-
73)=Exhibit 24 (Suit-4) Register 10 Page 137) is claimed to be
an agreement between Syed Mohd. Zaki and Abdul Gaffar on
25
th
July 1936 with respect to payment of arrears of salary of
2408
Abdul Gaffar who is said to have worked as Pesh Imam in the
waqf mosque Babri and contains further details about payment
schedule etc. This document has been filed to show that the
building in dispute was not only in possession of Muslims after
1934 but Pesh Imam and Mutwallis were there which shows that
Namaz was also offered in the disputed building after 1934.
However, entire document nowhere shows or even make a
suggestion that Namaz was being offered in the disputed
building for the period said document refers or otherwise. It is
solely confined to the dispute of payment of salary to Sri Abdul
Gaffar. Moreover, this document ex facie does not satisfy the
requirement of a public document under Section 74 of Evidence
Act, 1872 and nothing has been placed on record to show that it
was filed after obtaining a copy thereof from a public authority
in whose possession it ought to be. Evidently, it is a private
document under Section 75 of Evidence Act and its contents
have not been proved in accordance with law i.e. by any
appropriate witness.
2380. The said document was filed in an earlier litigation
i.e. O.S.No.29 of 1945 filed by U.P. Shia Central Waqf Board
against U.P. Sunni Central Waqf Board where it was marked as
Exhibit A-20 but that fact by itself would not result in treating
the said document proved in accordance with law and in any
case the contents thereof having not been proved, cannot be
taken to be correct. The above document, Exhibit A-7, does not
qualify such degree, presumption in respect whereto under
Section 80 of the Evidence Act could be drawn for the purposes
mentioned therein. Certified copy of the said documents
obtained from the Civil Court would only mean that such a
document was filed thereat but the presumption as available to
2409
the certified copies of public document would not apply to the
above documents, Exhibit A-7. Moreover, nothing spell out
therefrom which may help plaintiffs (Suit-4) or the defendants
no.1 to 5 and 10 (Suit-1) to prove their claim about the
possession and offering of Namaz in the disputed premises.
2381. Exhibit A-4 (Suit-1) (Register 6, page 35-
44)=Exhibit 21 (Suit-4) (Register 10, page 119-124) is claimed
to be the report dated 16
th
September 1938 written by the
District Waqf Commissioner, Faizabad addressed to the Chief
Commissioner of Waqf, U.P. and it reads as under:
Chief Commissioner of Waqfs, U.P.
These papers are submitted to you in the matter of
Babari or Janam Asthan mosque at Ajudhya, which was
built by Emperor Babar in 935 A.H.
A short history of the State grant made for the
maintenance of this mosque is given below.
It appears that in 935 A.H. Emperor Babar built this
mosque and appointed one Syed Abdul Baqi as the
Mutawalli and Khatib of the mosque (vide cl.2 of written
statement filed by Syed Mohd. Zaki to whom a notice was
issued under the Waqf Act). An annual grant of Rs. 60/-
was allowed by the Emperor for maintenance of the
mosque and of the family of the first Mutawalli Abdul Baqi.
This grant was continued till of the fall of the Moghal
kingdom at Delhi and the ascendancy of the Nawab of
Oudh.
According to Cl.3 of the written statement of Mohd.
Zaki, Nawab Sa'adat Ali Khan, King of Oudh increased the
annual grant to Rs. 302/3/6. No original papers about this
grant by the King of Oudh are available.
2410
After the mutiny, the British Government also
continued the above grant in cash upto 1864 and in the
latter year, in lieu of the cash grant the British Govt
ordered the grant of some revenue free land in villages
Bhuranpur and Sholeypur. A copy of this order of the
British Govt has been filed by the objector Syed
Muhammad Zaki (Vide flag A). This order says that the
Chief Commissioner under the authority of the Governor
General in Council is pleased to maintain the Grant for so
long as the object for which the grant has been made is
kept up on the following conditions. These conditions
require Rajab Ali and Mohd. Asghar to whom the Sannad
was given, to perform duties of land holder in the matter of
police, military or political service etc. The object
mentioned above is elucidated in the Urdu translation as
follows:


Thus the original object of the State grant of
Emperor Babar and Nawab Saadat Ali Khan is continued
in this Sunnad by the British Govt. also, i.e., maintenance
of the mosque. The Nankar is to be enjoyed by the grantees
for so long as the object of the grant i.e the Mosque, is in
existence.
Syed. Mohd. Zaki, the objector, who is known as
the Mutawalli of the Babari Mosque, and also calls
himself as such raises an objection to the land in Sholeypur
and Bhuranpur being regarded as a waqf, because he says
the grant has been made for his subsistence only ( ). I
do not agree with this view of his. The written filed by
2411
Mohammad Zaki himself is sufficient to show that the grant
has been continued ever since 935 A.H. only because he
and his ancestors were required to look after the mosque
and keep it in proper condition out of the income allowed
to them and also to provide for the maintenance of himself
and his ancestors out of a part of the same grant.
Clearly them the grant of land to Mohammad Zaki
must be regarded as a Waqf, the purpose of which is the
maintenance of the religious building known as the Babari
Mosque.
The learned counsel for Mohammad Zaki has also
argued.
1) That the particular grant of land in Sholeypur and
Bhureypur has been made by the British Government. A
Non-Muslim body and hence the grant cannot be regarded
as Muslim Waqf.
(2) that the grant is a conditional one, being subject to
resumption on non fulfilment by the grantee of any of the
police Military or duties enjoined in the Sunnad, and that
on account of these conditions the grant cannot be classed
as a Muslim Waqf.
I do not agree with eitherview. Firstly the British
Government only continued a grant which had been made
by the Muslim Government originally and in these
circumstances, I cannot but regard the grant as a Waqf.
2) As for the second point the conditions have been
imposed upon the grantee, and not upon the way in which
the grant is to be utilized, which latter purpose is
recognised as maintenance of the mosque. It is clear that if
the conditions are broken the enjoyment of the grant by the
2412
Mutwalli himself for his sustenance is to be withdrawn
apparently implying that any other Mutwalli will then be
appointed to administer the grant for the original purpose
of maintaining the mosque. I am strengthened in this view
because I find the mention of the object of the grant i.e.
maintenance of the mosque at the very outset of the
Sunnad and the desirability thereof seems to be clear from
the whole Sunnad.
I also find that after the Ajodhya riot of 1934, Syed
Mohammad Zaki presented an application (Ex. A) to D.
C., in which he clearly described himself as Mutwalli or
trustee of the mosque and of the trust attached thereto.
I also find that this same Mohammad Zaki submitted
accounts in 1925 in Tahsildar's court in which he stated
that the income from the grant managed by him was
utilized for maintenance of the mosque, pay of Imam
Muezzin and the provisions of Iftari etc., during Ramzan
after deduction of Rs 20/- per month for sustenance of the
Mutwalli himself. The pay of Mutwalli in column 7 has not
been stated by Mohd. Zaki. In view of the statement filed in
Tahsildar's Court, this may be regarded as Rs. 20/- per
month, although there is no reason to believe that the
present Mutwali spends a much greater portions of the
income on his own personal needs.
The present Mutwalli is of course a Shia.
There is no information as to the sect to which Abdul
Baqi himself belonged, but the founder Emperor Babar-
was admittedly a Sunni, the Imam and Muezzin at the
mosque are Sunni and only Sunnis say their prayer in it.
I think therefor that this should regarded a Sunni trust.
2413
I must say in the end that from the reports that
I have heard about the present Mutwalli, he is an opium
addict (vide his statement Flagged-) and most unsuited to
the proper performance of the duties expected of a Mutwali
of an ancient and historical mosque, which is not kept even
in proper repairs. It is desirable that, if possible, a
committee of management should be appointed to supervise
the proper maintenance and repairs of the mosque and
discharge of his duties by the Mutwalli.
Sd/-
Distt. Waqf Commissioner
Fyzabad.
16.9.38.
2382. Exhibit A-5 (Suit-1) (Register 6, page 45-48) is
copy of another report dated 8
th
February 1941 submitted by A.
Majeed District Waqf Commissioner, Faizabad. It appears that
earlier report of the District Waqf Commissioner was returned
by the authorities vide letter dated January 19, 1939 informing
that the post of Chief Commissioner Waqf was terminated and it
is the District Waqf Commissioner who was empowered under
section 4 of 1936 Act to decide Waqf cases and in this context
he was to pass a fresh order. The District Waqf Commissioner
instead of passing any order says that he entirely agrees with the
findings of his predecessor and then submitted report which
reads as under:
The report was submitted to you in the matter of
Babari and Janam Asthan Mosque at Ajudhya, which was
built by Emperor Babar in 935 A.H. by Mr. Mohammad
Owais, My predecessor, which was returned with letter no.
509/XV-W-39 dated January 1939 with the intimation that
the post of Chief Commissioner of Waqf was terminated
District Waqf Commissioner are empowered under sec.4 of
2414
United Provinces Acts (Act XIII of 1936) to decide waqf
cases finally. I made further enquiries and examined the
Pesh Newaz who filed certain papers. I entirely agree with
the finding of my predecessor and I submit my report.
A short history of the State grant made for the
maintenance of this mosque is given below.
It appears that in 935 A.H. Emperor Babar built this
mosque and appointed one Syed Abdul Baqi as the
Mutawalli and Khatib of the mosque (vide cl.2 of written
statement filed by Syed Mohd. Zaki to whom a notice was
issued under the Waqf Act). An annual grant of Rs. 60/-
was allowed by the Emperor for maintenance of the
mosque and of the family of the first Mutawalli Abdul Baqi.
This grant was continued till of the fall of the Moghal
kingdom at Delhi and the ascendancy of the Nawab of
Oudh.
According to Cl.3 of the written statement of Mohd.
Zaki, Nawab Sa'adat Ali Khan, King of Oudh increased
the annual grant to Rs. 302/3/6. No original papers
about this grant by the King of Oudh are available.
After the mutiny, the British Government also
continued the above grant in cash upto 1864 and in the
latter year, in lieu of the cash grant the British Govt
ordered the grant of some revenue free land in villages
Bhuraipur and Sholeypur. A copy of this order of the
British Govt has been filed by the objector Syed
Muhammad Zaki (Vide flag A). This order says that the
Chief Commissioner under the authority of the Governor
General in Council is pleased to maintain the Grant for so
long as the object for which the grant has been made is
2415
kept up on the following conditions. These conditions
require Rajab Ali and Mohd. Asghar to whom the Sannad
was given, to perform duties of land holder in the matter of
police, military or political service etc. The object
mentioned above is elucidated in the Urdu translation as
follows:


Thus the original object of the State grant of Emperor
Babar and Nawab Saadat Ali Khan is continued in this
Sunnad by the British Govt. also, i.e., maintenance of the
mosque. The Nankar is to be enjoyed by the grantees for so
long as the object of the grant i.e the Mosque, is in
existence.
Syed. Mohd. Zaki, the objector, who is known as the
Mutawalli of the Babari Mosque, and also calls himself as
such raises an objection to the land in Sholeypur and
Bhuranpur being regarded as a waqf, because he says the
grant has been made for his subsistence only ( ). I do
not agree with this view of his. The written statement filed
by Mohammad Zaki himself is sufficient to show that the
grant has been continued ever since 935 A.H. only because
he and his ancestors were required to look after the
mosque and keep it in proper condition out of the income
allowed to them and also to provide for the maintenance of
himself and his ancestors out of a part of the same grant.
Clearly them the grant of land to Mohammad Zaki
must be regarded as a Waqf, the purpose of which is the
maintenance of the religious building known as the Babari
Mosque.
2416
The learned counsel for Mohammad Zaki has also
argued.
1) That the particular grant of land in Sholeypur and
Bhurey pur has been made by the British Government. A
Non-Muslim body and hence the grant cannot be regarded
as Muslim Waqf.
(2) that the grant is a conditional one, being subject to
resumption on non fulfilment by the grantee of any of the
police Military or duties enjoined in the Sunnad, and that
on account of these conditions the grant cannot be classed
as a Muslim Waqf.
I do not agree with either view. Firstly the British
Government only continued a grant which had been made
by the Muslim Government originally and in these
circumstances, I cannot but regard the grant as a Waqf.
2) As for the second point the conditions have been
imposed upon the grantee, and not upon the way in which
the grant is to be utilized, which latter purpose is
recognised as maintenance of the mosque. It is clear that if
the conditions are broken the enjoyment of the grant by the
Mutwalli himself for his sustenance is to be withdrawn
apparently implying that any other mutwalli will then be
appointed to administer the grant for the original purpose
of maintaining the mosque. I am strengthened in this view
because I find the mention of the object of the grant i.e.
maintenance of the mosque at the very outset of the
Sunnad and the desirability thereof seems to be clear from
the whole Sunnad.
I also find that after the Ajodhya riot of 1934, Syed
Mohammad Zaki presented an application (Flag Ex. A) to
2417
Deputy Commissioner, in which he clearly described
himself as Mutwalli or trustee of the mosque and of the
trust attached thereto.
I also find that this same Mohammad Zaki submitted
the accounts in 1925 in Tahsildar's court in which he
stated that the income from the grant managed by him was
utilized for maintenance of the mosque, pay of Imam
Muezzin and the provisions of Iftari etc., during Ramzan
after deduction of Rs 20/- per month for sustenance of the
Mutwalli himself. The pay of Mutwalli in column 7 has not
been stated by Mohd. Zaki. In view of the statement filed in
Tahsildar's Court, this may be regarded as Rs. 20/- per
month, although there is no reason to believe that the
present Mutwali spends a much greater portions of the
income on his own personal needs.
The present Mutwalli is of course a Shia. There is no
information as to the sect to which Abdul Baqi himself
belonged, but the founder Emperor Babar- was admittedly
a Sunni, the Imam and Muezzin at the mosque are Sunni
and only Sunnis say their prayer in it. Abdul Ghaffar the
present Pesh niwaz was examined by me. He swear that
the ancestors of Mohammad Zaki were Sunnis who latter
on was converted to Shia. He further said that he did not
receive his pay during the last 11 years. In 1936 the
Mutwalli executed a pronote promising to pay the arrear of
pay by instalment but upto this time nothing actually was
done. I think therefore that this should be regarded as a
Sunni Trust.
I must say in the end that from the reports that I have
heard about the present Mutwalli, he is an opium addict
2418
(vide his statement Flagged-) and must unsuited to the
proper performance of the duties expected of a Mutwali of
an ancient and historical mosque, which is not kept even in
proper repairs. It is desirable that, if possible, a committee
of management should be appointed to supervise the
proper maintenance and repairs of the mosque and
discharge of his duties by the Mutwalli.
Sd/-A. Majeed
Distt. Waqf Commissioner
Fyzabad.
Feb. 8, 1941
2383. The said documents show that the (Waqf
Commissioner) proceeded to treat the disputed building a
mosque pursuant to some statement received from Syed Mohd.
Zaki to whom he had issued notice under U.P.Act 1936 and
thereafter took into consideration the genuineness of the grant of
Rs. 302/3/6 though admitted that the original documents of the
said grant alleged to be issued by the King of Oudh were not
available.
2384. Sri P.N. Mishra as well as Sri M.M. Pandey learned
counsel appearing for some of the Hindu parties drew our
attention to the factum mentioned by the District Waqf
Commissioner in his report that the object of the grant was to
maintain the mosque and for the said purpose he has reproduced
certain words in Urdu which is incorrect. They are right. We
also do not find as to wherefrom the alleged original object in
Urdu was found mentioned by aforesaid District Waqf
Commissioner. It also appears from the aforesaid report that
Syed Mohd. Zaki did not agree to the fact that the grant of land
in village Sholapur and Bahoranpur was in connection with the
Waqf, i.e. mosque but his stand was that the said grant was
2419
given to Sri Rajjab Ali and Sri Mohd. Asghar. The officer
concerned however showed his disagreement on the ground that
the original grant having been allowed since the period of
Emperor Babur i.e., 935 A.H., i.e. 1528 AD the claim of Mohd.
Zaki that the grant was personal was not correct. Further to treat
the successors of Mutwalli the name of the first one is
mentioned as Abdul Baqi but we are not shown by any of the
counsels as to whether any such person existed in 1528 AD and
had any relationship with the building in dispute or Emperor
Babur. Another factum mentioned in the report is that one
Abdul Gaffar, according to the officer concerned, was the then
Pesh Nawaz who was examined by him and he told that Mohd.
Zaki was earlier Sunni and later on converted to Shia and for
this reason also, since Emperor Babur was Sunni, the officer
concerned recorded his opinion that it should be treated as Sunni
Trust. He also found that the then Mutwalli was an opium addict
and recommended for the constitution of a committee of
management for maintenance of the building.
2385. Exhibit A-6 (Suit-1) (Register 6, page 49-61) is said
to be an application/petition dated 1.10.1945 filed under section
15 of the Police Act (Act No.5 of 1861). There are eleven
petitioners: 1. Mohd. Zaki, 2. Imtyaz Ali, Advocate, 3. Haji
Agha Mirza Saudagar, 4. Sheikh Abdul Gaffar, 5. Meer Farjand
Ali, 6. Meer Masum Ali, 7. Maulvi Syed Waziruddin, 8.
Muhammad Yusuf, 9. Iqramullah, 10. Rahim Baksh, 11. Syed
Rahmat Hussain, Advocate.
2386. The said application was filed for claiming damages
of Rs. 15000/- on account of loss caused to the building in
dispute on 27
th
March 1934 and removal of movable property
kept in the said building and their residential houses. It gives the
2420
list of movable property which was lost in the said agitation
worth Rs. 269/- and reads as under:
-ir-- | - n~| i| -l- r~ i
li l - i| -l- i - n~| r | ; i-n -
-ni n r| -i iii - n~| ri r| - ;l n i - i |
-l - ni r | ii i ;-in -l- li r-
i-i i| r r ii li i i li
-i; i i i | | i i
n| s i s
so, o, r, r, so,
--i l-- -| ii l-- -| ri | (-|) ri (-|)
ii l-- -|
i i -i i (-|)
, /,s, Rs.24/- Rs. 50/- Rs. 1/8/-
(-|) -i i -| ni|i| || nni iri
n| 3x1 Sqr ft. i i
Rs.25/- Rs.4/- Rs.2/8/-= -i
| |-n Rs.269 ri n| r | - - - rl-n i-i i i i
| l - ili | r| r |-n ii -ili i
;-in l-i ilr |
n| li
(o ) -i r-- | - n~| - i
(Sd/- English) R.R. Sinister Day
"I syed Mohammad Zaki Mutawalli Babri Masjid described
on oath that he is Mutawalli of Babri Masjid and has
signed this application. The Mutawallis are selected from
his family, under he traditions. He looks afterall the
arrangements of the Masjid that besides the harm caused
to the building the Hindus destroyed and set on fire the
following things.
Chatai 3 nos, 30/- Cloth for furse 6 nos 40/- wooden box
2421
15/-. Parda Kapra ( cloth) sandali 30/-, matka hardin 5
nos. 1/4-. Clay Badhni 7/13. HandiSic7/13. Handi 4
nos 24/- Chahar-sic- 1 nos 50/- Clay pitchers 1/8. Illigible
3 nos. 25 Rs. Stone Kasuti historical 3x1, 1/2 Sqfeet. 1 nos.
lader 2 nos.4/- Gagra iron 2 nos. 2 Rs 8 Anns. Total values
comes to Rs 269.
I have submitted to the police a detailed list of
the articles. This value should also be given, along-with the
compensation for the loss incurred on the building of the
Masjid.
Listened and verified
Sd/- (urdu) syed Mohammad Zaki Baqulam Khud.
Sd/- English R.R. Senister Day."
(E.T.C.)
2387. The above document is not a public document and
when it was filed, could not have been said to be 30 years old
document. Even otherwise, it does not satisfy the requirement of
Section 90 of the Evidence Act. This document, therefore,
cannot be held proved. It is therefore difficult to place reliance
on the contents of this document. In any case, it only shows that
Syed Mohd. Zaki claimed himself to be Mutwalli, Babari
Masjid and that he was managing the said mosque. It further
says that besides damage to the building of the mosque, the
other items kept in the said building have also been set on fire
and therefore, he sought compensation of Rs.269/- on that
account.
2389. Exhibit A-11 (Suit-1) (Register 6, page 163-165)
appears to be a copy of some register but it is an extremely torn
document and the contents on page 163 are almost illegible. Sri
Jilani however placed reliance on entry contained in columns 13
2422
and 14 thereof. Column 13 refers to order of the Chief
Commissioner and reads as under:
So long the Masjid is kept up and the Muhammadans
conduct themselves properly I recommend the continuance
of the grant (signature illegible, officiating Chief
Commissioner)
2390. Column 14 is headed 'Final order of Government'
and thereunder it is mentioned as under:
Released so long as the object for which the grant
has been made is kept up vide Govt. order number 2321
dated 29
th
January 60
(Obviously it must be 1860)
(The same document has also been filed as Exhibit 2
(Suit-4) Register 10 Page 31)
2391. Exhibit A-10 (Suit-1) (Register 6, page 153-155) is
a document which has been heavily referred by both the sides.
Its heading is as under:
Nakal register tahkikat maafi mashmula misil
tahkikat maafi number mukdama 53 register misil band
mukdama Rajab Ali (Apathniya)
Mauza Shahnawa Pargna Haveli Oudh Munfasla 14
March 1860 Ei.
2392. Exhibit A-21 (Suit-1) (Register 7, page 233-235) is
a copy of the Khasra pertaining to 1277 Fasli (1884 AD)
showing entry of Plot No. 163 as Araji Juma Masjid.
2393. The above documents show that in order to justify
the amount received by Mir Rajjab Ali and Mohd. Afjal and
their successors in the form of the grant, they made some
expenses on the maintenance of disputed structure and that was
shown in the records also, which was inspected and found
2423
correct by the Government officials namely Tehsildar etc. The
interesting thing discern from all these documents is that none
of them throw any light on the fact whether the Muslim public
visited the disputed premises for offering namaz during all this
period. From the stand taken by Mohd. Zaki before the Waqf
Commissioner, it is evident that the grant of the two villages
was treated as personal grant and in one or the other documents,
besides the word 'Mutwalli'/'khatib', it also mention "Zamindar"
qua the two villages grant whereof was allowed. Moreover in
respect to Hindu fairs at Ayodhya i.e. Ram Navmi fair, they
shared income of rental when some of the part of the land was
allowed to be used by outsiders for keeping shops, with the
Priest of Nirmohi Akhara, who were managing and possessing
Ram Chabutara and other Hindu religious structures and places
existing in the outer courtyard.
2394. Sri Jilani suggested when the building was
maintained by a Muslim person, the said management was for
the purpose of convenience to Muslim public for holding
namaz. We find difficult to agree with this bald oral proposition
for the reason that a presumption cannot substitute a fact. When
a fact is seriously disputed, there has to be an evidence to prove
that fact. Assumption cannot be stretched too far i.e. to that
extent which is not even apparent or justified from the
documents produced by the party concerned upon whom onus to
prove lie.
2395. In support of the contention that the namaz was
continuously offered in the building in dispute, a number of
witnesses have been produced on behalf of the plaintiffs (Suit-
4). They deposed to have offered namaz in the building in
dispute (inner courtyard) before December, 1949 and upto 16
th
2424
December, 1949 or 22
nd
December, 1949. That evidence will be
considered a bit later. Here what we find is that realizing the
problem, which the plaintiffs were having in the matter, instead
of filing a suit for possession, they have sought a declaration
about the status of the premises in dispute. Ex facie the
provision of Limitation Act, which would be attracted, is not
Article 142. The pleadings as well as other documents leave no
doubt that the plaintiffs (Suit-4) have not made out any case of
adverse possession; admitting the ownership of the property in
dispute of the defendants and showing open, hostile, continuous
and peaceful possession. However, we shall consider the
question of adverse possession in detail separately.
2396. So far as Article 144 is concerned, we are clearly of
the view that the same has no application. It contemplates plea
of adverse possession by the defendant and not plaintiff.
Learned counsel for the plaintiffs (Suit-4) could not place
anything to persuade us to take a different view and therefore, in
our view, Article 144 is not applicable to Suit-4. However, this
aspect we propose to discuss in detail while discussing issues
pertaining to adverse possession/ possession.
2397. This leads us to consider the scope and extent of
Article 120 L.A. 1908 and whether it will be applicable in this
case.
2398. In Janki Kunwar Vs. Ajit Singh (1888) ILR 15 Cal
58 Articles 91 and 94 Schedule II, Limitation Act (Act No.XV
of 1877) came to be considered. The Court found that though
the suit purported to have been filed claiming possession of
immoveable property in dispute and thereby claiming limitation
for the same being 12 years but it was in fact not so since
without getting the deed of sale set aside, the possession of
2425
immoveable property could not have been recovered and
therefore necessarily a suit for setting aside the sale deed
executed on 29
th
July, 1872 while the suit was filed on 16
th
February, 1884 hence barred by limitation under Article 91 of
the said Act. The court held that if all the facts were known to
the parties and yet he chose not to litigate upon the matter
within the period of limitation prescribed in the statute, the suit
would have to fail, hit by limitation prescribed in the statute.
2399. Similar view was expressed in Jafar Ali Khan
(supra) where the Court said that without seeking a declaration,
relief of recovery of possession cannot be stressed upon. In such
a case the provision of limitation pertaining to recovery of
possession would not apply. The Court relied on its earlier
decision in Jagadamba Chowdhurani Vs. Dakhina Mohan
(1886) 13 Cal 308 while observing that in such a case, prima
facie, title remains with the defendant, and until that title is
defeated or displaced, the possession of the defendant cannot be
disturbed. The Court in para 7 held :
".........It may be taken to be established now that where in
a suit for recovery of possession there is an obstacle in the
way of granting relief in the shape of gift or settlement, the
plaintiff cannot get any relief until such instrument is set
aside; and as it has been said, if it is too late for setting
aside the document, the suit for possession should also
fail."
2400. In Pierce Leslie (supra) in para 7 the Court held:
"Even if the suit is treated as one for recovery of possession
of the properties it would be governed by Article 120 and
not by Article 144. The old company could not ask for
recovery of the properties until they obtained a re-
2426
conveyance from the new company. The cause of action for
this relief arose in 1939 when the properties were conveyed
to the new company. A suit for this relief was barred under
Article 120 on the expiry of six years. After the expiry of
this period the old company could not file a suit for
recovery of possession."
2401. In Raja Ramaswami (supra) suit was filed for
possession of the property in dispute and in the alternative
prayed for a decree for Rs.1500, the consideration paid by her to
the defendant for sale with interest thereon. In defence the plea
of limitation was taken stating that the sale deed was executed
on 6
th
February, 1905 though the suit was filed on 1
st
December,
1924. In para 19, the Court held :
"As regards the first point, it has been well-settled by
several decisions of their Lordships of the Privy Council
that it is not the form of the relief claimed which
determines the real character of the suit for the purpose of
ascertaining under which article of the Limitation Act the
suit falls. Though the relief claimed in the suit is possession
of immovable property, yet if the property sued for is held
by the contesting defendant under a sale or other transfer
which is not void, but only voidable, and he cannot obtain
possession without the transfer being set aside, the suit
much be regarded as one brought to set aside the transfer
though no relief in those terms is prayed for, but the prayer
is only for possession of the property."
2402. The suit in question has been instituted on
18.12.1961. Cause of action arose, as per the own pleadings of
the plaintiffs (Suit-4) in para 23 of the plaint, on 23.12.1949 and
29.12.1949. Admittedly the suit is much beyond the period of
2427
limitation if it it is to be governed by Article 120 of L.A. 1908.
In that case, whether the prayer (Namaj) was held till
16.12.1949 or 22/23.12.1949 in the disputed building by
Muslims would be of no consequence. The question of prayer or
the prayer continued till December, 1949 may be relevant only
if the applicability of Article 120 of L.A. 1908 is ruled out. In a
suit for declaration of title Article 142 and 144 as such are not
applicable and in the absence of any other provision, prescribing
a different limitation, it is Article 120 which is attracted
Limitation of six years is provided in Article 120.
2403. The plaint shows as also admitted by the plaintiffs
that their possession was obstructed and interfered in the night
of 22/23.12.1949 when idols of Lord Ramlala were placed under
central dome in the inner courtyard of the disputed building,
and, apprehending public tranquillity and disturbance of peace,
the City Magistrate attached that the part of the disputed area
namely, the inner courtyard and placed it in the possession of a
Receiver. Therefore, on 29.12.1949 and thereafter the property
covered by the inner courtyard including the disputed building
was not in possession of any of the defendants (Hindu Parties)
who could have restored the same to the plaintiffs (Suit-4). The
order dated 29.12.1949 was passed by the City Magistrate in
exercise of his power under Section 145 Cr.P.C.. Neither the
validity of the said order could have been challenged by filing a
civil suit under Section 9 CPC, 1908, nor the same actually has
been challenged in Suit-4 nor it would mean that the property
which was attached by the Magistrate under Section 145 Cr.P.C.
is in the hands of any individual defendant.
2404. In Partab Bahadur Singh, Taluqdar (supra) the
Court held where an order under Section 145 CR.P.C. was made
2428
by the Magistrate for attachment of the disputed property and
Tahsildar was appointed receiver, the possession of receiver in
the eyes of law was the possession of the true owner and,
therefore, in such a suit Article 120 L.A. 1908 shall be attracted
and a suit brought within six years of the last invasion is in time.
On page 395 of the judgment the Court said:
"For the present it would be enough to say that in our
opinion the attachment made in 1932 in pursuance of the
order passed in the proceedings under S. 145, Criminal
P.C., clearly gave rise to an independent cause of action
for the plaintiff instituting the present suit for a declaration
and the said suit having been brought within six years of
the attachment is not barred by Art. 120, Limitation Act, if
it is found that he had a subsisting title on the date of
attachment. Next it was contended that the suit was
governed by Art. 142 Sch. 1, Limitation Act, and that the
plaintiff's suit had rightly been dismissed because he had
failed to prove his possession within limitation. The
Subordinate Judge also has laid great emphasis on it and
his decision appears to be mainly based on this ground. In
our opinion this position is altogether untenable. It is
common ground between the parties that in S. 145
Criminal P.C., proceedings the Magistrate passed an order
for attachment of the property. The Tahsildar who was
appointed receiver took possession of the property on 23
rd
February, 1932. The property was admittedly in possession
of the Tahsildar as receiver at the time when the present
suit was instituted. The possession of the receiver was in
the eye of law the possession the true owner. In the
circumstances the plaintiff could undoubtedly maintain a
2429
suit for a mere declaration of his title and it was not
necessary for him to institute a suit for possession. The suit
is neither in substance nor in form a suit for possession of
immoveable property. Art. 142 has therefore no
application."
2405. In Raja Rajgan Maharaja Jagatjit Singh (supra)
the ratio laid down in Partab Bahadur Singh, Taluqdar
(supra) was upheld. The Privy Council affirmed that in a suit
for declaration of plaintiff's title to the land in possession of the
receiver under attachment in proceeding under Section 145
Cr.P.C. by virtue of Magistrate's order, Article 142 and 144 L.A.
1908 are inapplicable and the suit is governed by Article 120
thereof. On page 49 the Privy Council observed:
"With regard to the statutory period of limitation, Art. 47 of
the Act does not apply, as there has been no order for
possession by the Magistrate under S. 145, Criminal P.C.
as the suit is one for a declaration of title, it seems clear
that Arts. 142 and 144 do not apply, and their Lordships
agree with the Chief Court that the suit is governed by Art.
120."
2406. In Ponnu Nadar and others Vs. Kumaru Reddiar
and others, AIR 1935 Madras 967 the Court held that the real
cause of action was the date of the order of the Magistrate and
limitation started from the date of order. Article 120 of the
Limitation Act, 1908 was applicable and not Section 23 of the
said Act. The relevant portions of the said judgment read as
follows:
"What in fact appears to have given rise to the Joint
Magistrate's order was a police report of an apprehended
breach of the peace between the rival fractions and all that
2430
the opposite party did was to adopt an attitude which gave
rise to that apprehension. So far as that attitude itself is
concerned, it is impossible to find in it a continuing wrong,
nor do we find it easier to hold that when the Joint
Magistrate passed the order with a view to prevent a
breach of the peace there was a "continuing wrong" caused
by the defendants' party. There is nothing to show that it
was passed at their instance and even if it were,
responsibility for passing it must be taken by the Court and
not laid upon the party. Again, once an order was passed,
the matter was taken out of the hands of the defendant
party, and it lay with the Nadars themselves to establish
their right by suit.
From this point of view too we are not disposed to
hold that even if there was a continuing wrong the
defendant party was responsible for its continuance. Where
the applicability of S. 23, Lim. Act, is doubtful the proper
course must be, we think, to enforce against the plaintiffs
the ordinary principles of limitation, and in the present
case to apply Art. 47 would be applied to the case of an
order under S. 145, Criminal P.C., time being taken to run
from the date of the order. Adopting this view, the persons
affected by the order of 1900 had a period of six years
within which to establish their right, and we are not greatly
impressed by the argument that, if the right itself may be
indestructible, the remedy ought not to have been
permanently lost by their failure to take action within that
time. We must hold in agreement with 26 Mad. 410(1) that
the suit is barred under Art. 120, Limitation Act."
2407. In Annamalai Chettiar (supra), Privy Council held
2431
that in case of an accrual of the right asserted in the suit and its
infringement or at least clear and unequivocal threat to infringe
that right by the defendant against whom the suit is instituted for
the purpose of limitation Article 120 of the Limitation Act, 1908
is applied. Relevant para of the judgment from page 12 reads as
under:
"In their Lordships view the case falls under Art. 120,
under which the time begins to run when the right to sue
accrues. In a recent decision of their Lordships' Board,
delivered by Sri Binod Mitter, it is stated, in reference to
Art. 120."
2408. In Mst. Rukhma Bai Vs. Lal Laxminarayan
(supra) the Supreme Court held where there are successive
invasion or denial of right, the right to sue under Article 120
accrues when the defendant has clearly and unequivocally
threatened to infringe the right asserted by the plaintiff in the
suit. Whether a particular threat gives rise to a compulsory cause
of action depends upon the question whether that threat
effectively invites or jeopardizes the said right. Para 33 of the
judgment says:
"33. The legal position may be briefly stated thus: The
right to sue under Art. 120 of the Limitation Act accrues
when the defendant has clearly and unequivocally
threatened to infringe the right asserted by the plaintiff in
the suit. Every threat by a party to such a right, however
ineffective and innocuous it may be, cannot be considered
to be a clear and unequivocal threat so as to compel him to
file a suit. Whether a particular threat gives rise to a
compulsory cause of action depends upon the question
whether that threat effectively invades or jeopardizes the
2432
said, right."
2409. In C. Mohammad Yunus (supra) the Hon'ble
Supreme Court has held that a suit for declaration of a right and
an injunction restraining the defendants from interfering with
the exercise of that right is governed by Article 120. Under the
said Article there can be no right to sue until there is an accrual
of the right asserted in the suit and its infringement or at least a
clear and unequivocal threat to infringe the right. Relevant
extract of para 7 of the judgment reads as under:
"7. . . . The period of six years prescribed by Art. 120 has
to be computed from the date when the right to sue accrues
and there could be no right to sue until there is an accrual
of the right asserted in the suit and its infringement or at
least a clear and unequivocal threat to infringe that right.
If the trustees were willing to give a share and on the
record of the case it must be assumed that they being
trustees appointed under a scheme would be willing to
allow the plaintiffs their legitimate rights including a share
in the income if under the law they were entitled thereto,
mere denial by the defendants of the rights of the plaintiffs
and defendant No. 2 will not set the period of limitation
running against them."
2410. In Garib Das (supra) the Apex Court held that in a
suit for recovery of possession after cancellation of sale deed in
favour of the defendants on the ground that a previous valid
wakif had been created, Article 142 was not applicable, the suit
was to be filed within a period of six years that is to say Article
120 was applicable. Para 13 of the judgement reads as follows:
"13. The fourth point has no substance inasmuch as
Article 142 of the Limitation Act was not applicable to the
2433
facts of the case. The suit was filed in 1955 within six years
after the death of Tasaduk Hussain who died only a few
months after the execution of the documents relied on by
the appellants."
2411. In Dwijendra Narain Roy Vs. Joges Chandra De,
AIR 1924 Cal 600 (page 609) the Court said:
The substance of the matter is that time runs when
the cause of action accrues, and a cause of action accrues
when there is in existence a person who can sue and
another who can be used . . . . . The cause of action arises
when and only when the aggrieved party has the right to
apply to the proper tribunals for relief. The statute (of
limitation) does not attach to the claim for which there is
as yet no right of action and does not run against a right
for which there is no corresponding remedy or for which
judgment cannot be obtained. Consequently the true test to
determine when a cause of action has accrued is to
ascertain the time when plaintiff could first have
maintained his action to a successful result.
2412. This has been approved by the Apex Court in P.
Lakshmi Reddy (supra).
2413. It is no doubt true that in the suit the plaintiffs have
sought necessarily relief of declaration that the premises in
dispute is a mosque. The premises in dispute has been
demarcated by them as 'ABCD' in the map appended to the
plaint. Relief -2 is worded in a manner showing that the same
has not been asked from the Court but has been left to the
discretion of the Court if it finds expedient then it may grant.
2414. The settled proposition about the property custodia
legis is "the possession on behalf of the true owner". If the
2434
plaintiffs are true owner, possession on their behalf is already
with the Receiver but realizing the fact that without settling
dispute regarding status and nature of the disputed site and
building, claim of the plaintiffs for possession from the Receiver
would not succeed, they have sought the above declaration,
which therefore constitute the actual and real relief in the suit
and thus attract Article 120.
2415. For relief sought in the nature of declaration,
Section 42 of the Specific Relief Act provides:
Any person entitled to any legal character, or to any right
as to any property may institute a suit against any person
denying or interested to deny, his title to such character or
right, and the Court may in its discretion make therein a
declaration that he is so entitled, and the plaintiff need not
in such suit ask for any further relief. . . . . Provided,
that no Court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere
declaration of title omits to do so.
2416. Certain provisions have been made in L.A. 1908 for
certain suits, declaratory in nature for example Articles 92, 93,
118, 119, 125 and 129 but a suit for declaration of plaintiff's title
or right to property is governed by Article 120 L.A. 1908 which
provides a period of six years from the date of accrual of cause
of action or right to sue.
2417. In Satya Niranjan Vs. Ramlal, 1925 P.C. 42 it was
observed that the claims declaratory in their nature falling under
Section 42 of the Specific Relief Act are governed by Article
120 of L.A. 1908.
2418. In Draupadi Devi (supra) the Court said:
73. We may notice here that under the Code of Civil
2435
Procedure, Order VII Rule 1(e) requires a plaint to state
"the facts constituting the cause of action and when it
arose". The plaintiff was bound to plead in the plaint when
the cause of action arose. If he did not, then irrespective of
what the defendants may plead in the written statement, the
court would be bound by the mandate of Section 3 of the
Limitation Act, 1908 to dismiss the suit, if it found that on
the plaintiff's own pleading his suit is barred by limitation.
In the instant case, the plaint does not plead clearly as to
when the cause of action arose. In the absence of such
pleadings, the defendants pleaded nothing on the issue.
However, when the facts were ascertained by evidence, it
was clear that the decision of the Government of India not
to recognise the suit property as private property of the
Maharaja was taken some time in the year 1951, whether
in March or May. Dewan Jarmanidass, the plaintiff and
the Maharaja were very much aware of this decision. Yet,
the suit was filed only on 11.5.1960.
74. The Division Bench was, therefore, right in applying
Article 120 of the Limitation Act, 1908 under which the
period of limitation for a suit for which no specific period
is provided in the Schedule was six years from the date
when the right to sue accrues. The suit was, therefore,
clearly barred by limitation and by virtue of Section 3 of
the Limitation Act, 1908, the court was mandated to
dismiss it.
75. As rightly pointed out by the Division Bench, the
learned Single Judge ought to have permitted the plea to be
raised on the basis of the facts which came to light. The
Division Bench has correctly appreciated the plea of
2436
limitation, in the facts and circumstances of the case, and
rightly came to the conclusion that the suit of the plaintiff
was liable to be dismissed on the ground of limitation. We
agree with the conclusion of the Division Bench on this
issue.
2419. In Mt. Bolo Vs. Mt. Koklan (supra) right to sue for
the purpose of Article 120 Limitation Act was considered and it
was held:
There can be no right to sue until there is an
accrual of the right asserted in the suit and its infringement
or at least clear and unequivocal threat to infringe that
right by the defendant against whom the suit is instituted.
(Page 272)
2420. In M.V.S. Manikyala Vs. Narashimahwami AIR
1966 SC 470, the words "right to sue" under Article 120, LA
1908 was considered by the Apex Court and it was held that
right to sue occurs for the purpose of the said Article. There is
an accrual of the right asserted in the suit and unequivocal threat
by the respondents to infringe it. Every threat by a party to such
a right, however, ineffective and innocuous it may be, cannot be
considered to be a clear and unequivocal threat so as to compel
him to file a suit. Whether a particular threat gives rise to a
compulsory cause of action depends upon the question whether
that threat effectively invades or jeopardizes the said right. [See:
Mst. Rukhmabai Vs. Lala Laxminarayan (supra)]. It has been
held in a catena of decisions that in a suit for declaration of title
to immovable property, it is Article 120 LA 1908 and Article
113 LA 1963 which would be applicable.
2421. In Mohabharat Shaha Vs. Abdul Hamid Khan
(1904) 1 CLJ 73, it was held when a plaintiff being in
2437
possession sues for a declaration of his title to immovable
property, the residuary provision would apply, i.e., Article 120.
2422. In Aftab Ali Vs. Akbor Ali (1929) 121 IC 209 (All),
the Court said that Article 120 undoubtedly applies to all
declaratory suits except where separate provision is made. In
such a case of declaration, it is no doubt has been held by this
Court in Must. Salamat Begam Vs. S.K. Ikram Husain (1933)
145 IC 728 and Prarjapati Vs. Jot Singh (supra) that where
owner is in possession, he acquires a cause of action on each
occasion on which his rights are denied.
2423. There appears to be a consensus of opinion that
Article 120 applies to all suits of a declaratory nature where no
consequential relief is sought or is necessary.
2424. From the pleadings and prayer 1 (Suit-4) of the plaint
it appears that the status of the disputed premises claim to be
mosque by plaintiffs was threatened and disturbed by the
defendants, i.e., the Hindu parties, by placing idols in the
disputed building allegedly in the night of 22/23.12.1949 and
this gave a cause of action to the plaintiffs to seek a declaration
from the Court that the disputed premises is a mosque. For the
said purpose the question of possession, dispossession and
restoration of possession of the building in dispute is neither
necessarily consequential nor in the absence of such relief the
suit could have been dismissed under proviso to Section 42 of
Specific Relief Act, 1877.
2425. The inter relationship qua Article 120 of Limitation
Act, Section 42 of Specific Relief Act as also 146 Cr.P.C. came
to be considered before the Division Bench of Calcutta High
Court in Panna Lal Biswas (supra). The plaintiff-appellant
Panna Lal Biswas was dispossessed sometimes in April 1904 by
2438
the defendant. Property in dispute was attached by the
Magistrate under Section 146 Cr.P.C. on 10.6.1904. Ultimately
a suit was filed for recovery of possession on 2.5.1906. The
Court below dismissed the suit on the ground of bar of
limitation observing that attachment shall not confer a fresh start
for limitation from the date of attachment. The Court considered
whether in such a case the suit is one for possession or for a
mere declaration. It observed that in Goswami Ranchor Lalji
Vs. Sri Girdhariji (1897) 20 All. 120 it was held that the suit is
not for possession and, therefore, would be governed by 12
years rule of limitation. However, there is another decision of
Madras High Court in Rajah of Venkatagiri Vs. Isakapalli
Subbiah (supra) wherein it was held that the suit was not for
declaration and governed by Article 120, there was no
continuing wrong.
2426. A Similar view was taken by Calcutta High Court in
Brojendra Kishore (supra) but therein it further observed that
it is a continuing wrong within the meaning of Section 23 of the
Limitation Act and, therefore, the suit would not be barred by
limitation.
2427. In Panna Lal (supra) the Court agreed that the view
that the suit cannot be treated to be that of possession because
possession is not with the defendants but with the Magistrate
who is not, and cannot be a party to the Suit. It also agreed that
Article 120 of the Limitation Act would apply.
2428. Then comes a question of continuing wrong. The
Calcutta High Court observed that in Brojendra Kishore
(supra) there was no dispossession prior to the attachment by
the Magistrate and the cause of action might be said to have
accrued from day to day commencing from the date of the
2439
attachment, but here in Panna Lal's case, dispossession took
place in April 1904 and attachment was made in 10the June
1094. The cause of action, therefore, arose in April 1904 and
rule of six years' limitation would apply. The Court, thereafter,
proceeded to consider whether attachment would confer a fresh
starting point, whether the suit is barred under Article 120 or
142. It agreed with the view that the possession of Magistrate is
that of a stake holder and during continuance of attachment, the
property was in legal custody i.e. custodia legis which must be
held to be for the benefit of the true owner. In order to bring the
case within the concept of continuing wrong, Calcutta High
Court in Panna Lal relied on Agency Company Vs. Short
(supra) where it was held if a person enters upon the land of
another and holds possession for a time and when without
having acquired title under the statute, abandons possession, the
rightful owner, on the abandonment is in the same position in all
respect as he was before the intrusion took place.
2429. In Panna Lal's case, the possession was taken by
the Magistrate and by that time the plaintiff was out of
possession only for about two months. He had a subsisting title
at that time and since Magistrate's possession was constructive
possession of the true owner, the case would be covered within
the principle of the Secretary of State Vs. Krishnamoni Gupta
(1902) 29 Cal. 518. The Privy Council held "dispossession by
the vis major of floods had the same effect as voluntary
abandonment". If the possession of Magistrate was in law the
possession of the true owner, the defendant's possession was
determiend upon the Magistrate's taking possession under the
attachment. In other words, the plaintiff must be taken to have
been restored to possession constructively on the date of the
2440
attachment. He, therefore, got a fresh starting point, and that
being so, the case would fall within the principle of Brojendra
Kishore (supra) and thus can be treated as on of continuing
wrong under Section 23 of the Limitation Act. The Court also
referred an earlier decision of Calcutta High Court in Deo
Narain Chowdhury Vs. C.R.H. Webb (1990) 28 Cal. 86 where
it was held that limitation having already commenced to run
from date of actual dispossession, the plaintiff could not have a
fresh start of limitation from the date of subsequent attachment
by the Criminal Court. The above case was distinguished by
observing that the effect of attachment upon the question of
possession, so far as the true owner is concerned, was not
considered in the earlier case.
2430. We find no simile with the present case inasmuch
as, the plaintiffs are not claiming to be the owner but being the
beneficiaries of the waqf, they have sought a declaration about
the status of the property in suit. The question of providing a
fresh cause of action on day-to-day basis would not arise to the
plaintiffs. So far as the declaration is concerned, we are satisfied
that it would be governed by Article 120.
2431. We are in agreement with the argument of the
learned counsels for the defendants that a suit, if is barred by
limitation, it is the statutory obligation on the part of the Court
to dismiss it on the said ground by virtue of Section 3 of the Act
and in such matters there is no question of any sympathy,
hardship etc.
2432. In the matter of limitation sympathy, hardship,
discretion etc. have no place. In Maqbul Ahmad Vs. Onkar
Pratap Narain Singh (supra), Lord Tomlin observed, there is
no judicial discretion to relieve the appellants from the operation
2441
of the Limitation Act in a case of hardship or any authority in the
Court to dispense with its provision. This has been followed in
The Firm of Eng Gim Moh (supra) by a Full Bench of
Rangoon High Court. In the above judgement the Court also
disapprove the contention that continued attachment would
confer a continuous cause of action.
2433. In Siraj-ul-Haq Khan (supra) the Court said:
But, in our opinion, there would be no justification
for extending the application of S. 15 on the ground that
the institution of the subsequent suit would be inconsistent
with the spirit or substance of the order passed in the
previous litigation. It is true that rules of limitation are to
some extent arbitrary and may frequently lead to hardship;
but there can be no doubt that in construing provisions of
limitation, equitable considerations are immaterial and
irrelevant, and in applying them effect must be given to the
strict grammatical meaning of the words used by them:
Nagendra Nath Dey Vs. Suresh Chandra Dey, 34 Bom I.R.
1065: (AIR 1932 PC 165). (para 19)
2434. Mere addition of the relief of possession would not
attract a larger period of limitation provided by another
provision namely, Article 142 or 144 of L.A. 1908 when on the
basis of the pleadings itself it would be clear that a mere suit for
declaration was necessary and the prayer for restoration of
possession is superfluous for the reason that the defendants who
dispossessed the plaintiff are not continuing in possession of the
property in dispute on the date when suit was filed. The property
in dispute came to be under attachment of the Court, i.e.,
custodia legis.
2435. It may also be mentioned that the relief no.3 has
2442
been added in 1995 after the decision of the Apex Court in Dr.
M. Ismail Faruqui's case. In our view, if the suit as framed, was
already barred by limitation at the time when it was filed, the
subsequent addition of prayer therein would not bring it within
the period of limitation on the principle that the amendment
shall relate back to the date of filing of the suit. This is what has
been held in Vishwambhar & Ors. Vs. Laxminarain & Anr.
2001 (6) SCC 163. Mere allowing an amendment would not
deprive the defendants from raising the plea of limitation as held
by the Apex Court in Ragu Thilak D.John Vs. S. Rayappan &
Ors. 2001 (2) SCC 472.
2436. Mere by adding the statutory authority who pass the
order for attachment as one of the defendants would not change
the nature of the suit for the relief.
2437. Before concluding on this aspect, we may also refer
to the submissions of Sri Siddiqui as contained in paras 3.4, 3.7,
3.8, 3.9 and 3.10 of his written submissions, which pertain to the
applicability of Article 120 L.A. 1908. He has not referred to
any provision other than Limitation Act where there is any
extension of the period of limitation. The suggestion was made
during the course of the argument that placement of idols inside
the premises in dispute results in obstructing the right of
worship of Muslims in general and this is a continuing cause of
action. Hence Section 23 would be applicable and suit cannot be
held barred by limitation. The submission needs consideration.
2438. It is true that in the paragraph, dealing with cause of
action in the plaint, it is alleged by the plaintiffs (Suit-4) that the
cause of action arose on 22/23 December, 1949 when some
Hindus defiled and desecrated the mosque by placing the idol
inside the building under the central dome and thereby
2443
interfered and obstructed the right of worship of the plaintiffs. If
a suit is filed seeking a relief against obstruction to right of
worship, probably it may attract the principle of continuing
wrong, as provided in Section 23 of L.A. 1908 in view of law
laid down by the Privy Council in Hukum Chand & Ors. Vs.
Maharaj Bahadur Singh & Others AIR 1933 Privy Council
193. However, from the relief sought in the plaint, we find that
the plaintiffs have not filed the suit seeking injunction for
enforcement of right of worship but they have sought a
declaration about the nature of the building in dispute and also
for delivery of the possession in the capacity of possessory title
holder. Where a declaratory relief is sought, Section 23 L.A.
1908 is inapplicable. Section 23 reads as under:
"23. 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."
2439. One has to make a distinction between a continuing
wrong and continuance of the effect of wrong. In the case in
hand, the facts pleaded by the plaintiffs show that they were
ousted from the disputed premises on 22/23
rd
December, 1949
and the wrong is complete thereon since thereafter they are
totally dispossessed from the property in dispute on the ground
that they have no title. Hence, we find it difficult to treat the
alleged wrong to be a continuing wrong. In Maulvi Mohammad
Fahimal Haq Vs. Jagat Ballav Ghosh AIR 1923 Patna 475 it
was held that the principle of Section 23 would have no
application to a declaratory suit. In Mohd. Ata Husain Khan
Vs. Husain Ali Khan, AIR 1944 Oudh 139 this Court took the
2444
view that Section 23 has no application to a suit for declaration
of title. It has been held by the Apex Court recently, if the
wrongful act causes an injury, which is complete, there is no
continuance wrong even though the damages resulting from the
act may continue. In Raja Ram Maize Products Vs. Industrial
Court of M.P. 2001 (4) SCC 492 (Para 10) the workers
demanded that they should be allowed to resume work but it
was disallowed. The Court held that the cause of action is
complete and it cannot be said to be a continuing wrong.
2440. In Radhakrishna Das Vs. Radha Ramana Swami
(supra) the concept of continuing wrong has also been
explained by Orissa High Court and the Coury says:
"Where the wrongful act produces a state of affairs, every
moment's continuance of which is a new tort, a fresh action
for the continuance lies in which recovery can be had for
damages caused by the continuance of the tort to the date
of the writ. And it may be added where the wrong consists
in the omission of a legal duty, if the duty is to continue to
do something, the omission constitutes a continuing wrong
during the time it lasts, ..... Where the wrong consists in an
act or omission it must not be fleeting or evanescent like a
slander uttered, but such as to produce a change in the
condition of things which is a continual source of injury.
There is a real distinction between continuance of a legal
injury and continuance of the injurious effects of a legal
injury. Thus, in the case of a bodily injury there is no
continuing wrong as the injury ceases though the injurious
effect may persist. In other words there must not be a single
wrongful act from which injurious consequences follow,
but a state of affairs every moment's continuance of which
2445
is a new tort. The commonest examples of continuing
wrongs are found in interference with water supply and
obstructions to rights of way and of light and air. Where
adverse possession is claimed on the strength of the
erection of a wall there is no continuing wrong within
Section 23. The effect may continue but this does not extend
the time of limitation ... Where, therefore, trespass amounts
to a complete ouster the wrong is not a continuing one and
successive actions will not lie on the principle of interest
reipublica ut sit finis litium. ... Where a man suffers in
respect of one and the same right, whether of the person,
property, or reputation, as the case may be, then if the act
is not a continuing act but one over the consequences of
which, when done, the doer has no further control, the
cause of action is one and after recovery in an action for
damage first accruing, no further action can be brought. In
a case of trespass, the cause of action accrues when the
trespass is committed. When the properties of the deity and
the idol itself were taken possession of, the act which
causes an encroachment of the plaintiff's right was at once
complete and there is no continuance of damage or wrong
within the meaning of the statute. The effect of the damage
may continue but this does not extend the time of limitation.
... When the wrong amounts to dispossession of the plaintiff
then even although it may be a continuing wrong the
plaintiff cannot recover possession after 12 years because
under Section 28, Limitation Act, he himself has got no
right left which he can enforce. The real question is not
whether the wrong is continuing or not, but whether the
wrong amounts to a complete ouster of the plaintiff that is
2446
to his dispossession."
2441. In our view, the Orissa High Court has been right in
observing that if a suit is filed for enforcing right on the
property as such, the provisions of the Limitation Act would
immediately be attracted, but if the suit is filed by a worshipper
for enforcing his right of worship not based on any right to
property of the idol or to an office, the only scrutiny which is to
be made by the Court is whether there is any obstruction or
prevention to the plaintiff for exercising his right of worship and
nothing more than that. The question of title or ownership of the
property would not be considered in such a case and there in
such a matter, the plea of limitation may not come into way.
2442. We hereat would also consider the authorities cited
by Sri Siddiqui in his written arguments. (Lala) Shiam Lal Vs.
Mohamad Ali Asghar Husain AIR 1935 All 174 was a case
where a suit for declaration of title was filed which was decreed
by both the Courts below. The question raised as to whether
Article 120 will apply when initially there was a denial of title
and right to sue accrued or if there is any fresh denial at a later
point of time which may give a cause of action to maintain suit
and the limitation would run therefrom. The Court considered
an earlier decision in Akbar Khan v. Turban (1909) 31 All. 9
and said that it is now well established that a mere entry of
names does not debar the person against whom the entry is
made for all times to come from suing for a declaration and any
new invasion of rights which amounts to fresh denial of title
confers on the owner in possession a fresh right to sue. The
Court said that once right to sue accrue and period of limitation
was allowed to lapse, there is no question of renewal of period
of limitation applicable to declaratory suits otherwise it shall
2447
frustrate the very statue itself. An argument was raised therein
that ignoring the earlier cause of action, which accrued in 1895,
the right to sue to the plaintiff accrued on 23
rd
December, 1929,
when he got the sale deed executed from Mt. Kaniz Bano and
anything which took place prior thereto should not be taken into
consideration for the purpose of limitation. This Court held, "I
am not prepared to accede to this submission on behalf of the
respondent because this would lead to the anomaly that a person
who himself might have allowed limitation to run against him
confers a right to sue unfettered by the plea of limitation by
transferring the property to another. Indeed this would amount
to saying that no rule of limitation applies to a declaratory suit
where the defendants are interested in denying the plaintiff's
right within the meaning of Section 42, Specific Relief Act. As
observed by their Lordships of the Privy Council in Balo Vs.
Koklan 1930 PC 270, the right to sue accrues when there is an
accrual of the right asserted in the suit and its infringement or at
least a clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted. The fresh act must
be on the part of the defendants which can be said to amount to
a fresh invasion of plaintiff's right or a fresh attempt to cast a
cloud on the plaintiff's title and not merely a denial of the
plaintiff's title when the plaintiff's attempt to assert his title
because this denial would be merely a continuation of the denial
made long ago."
2443. This judgment, instead of helping the plaintiff's goes
against them. In the case in hand, threat to plaintiff's title, if for
the moment we can say so, assuming what the plaintiffs say
correct, was infringed or threatened at number of times, and the
period was allowed to lapse repeatedly which was more than the
2448
statutory period of limitation.
A. As admitted by the plaintiffs, a dividing wall (iron
grilled) was constructed separating the disputed structure
from the non-Islamic structure, i.e., Ram Chabutra existing
on the south-east side so that Muslims may worship in inner
courtyard and Hindu may continue their worship in the outer
courtyard in 1856-57. This was never assailed by the
Muslims claiming an infringement of their right on the
property in dispute.
B. When, according to them, the structures like Sita Rasoi,
Chhappar (Bhandar) were created between 1955 to 1973, as
is evident from the complaint of Mohd. Asgar, in this regard,
and despite the orders passed by the authorities on the
executive side the same were not removed.
C. In the year, 1934 Hindus tried to damage the building in
dispute causing serious damage to the domes and enclosure
walls. The building came in the custody of the authorities.
Though request was made to permit Muslim to offer namaj
therein, but there is no record to show as to whether it was
actually allowed and if so when.
D. When the idols were placed under the central dome in the
night of 22
nd
/23
rd
December, 1949, and regular daily Puja
commenced according to Hindu Shastric Laws ousting
Muslims from entering the property in dispute. Assuming
that the latest cause of action in respect to the premises in the
inner courtyard occurred on 22
nd
/23
rd
December, 1949,
threatening the very authority and title on the said mosque,
the suit ought to be filed in six years.
2444. Kali Prasad Misir (supra) is a judgment of a
Division Bench of this Court wherein it was observed that the
2449
cause of action for the purpose of limitation actually arose when
danger of actual dispossession faced by him in respect to plot
no. 655 and this was altogether independent of any cause of
action which may have been furnished to the plaintiff by the
settlement entries made in the year 1887. For the said purpose
this Court relied on an earlier decision in Rahmat-ullah Vs.
Shamsuddin 1913 (11) ALJ 877 and Allah Jilai v. Umrao
Husain (1914) I.L.R., 36 All., 492. We do not find how this
judgment helps the plaintiffs, inasmuch as, after 22/23
December, 1949, no such further incident gaving rise to the
plaintiffs to fresh cause of action has happened till the suit was
filed. So far as the attachment proceedings by the Magistrate are
concerned, they neither dispossessed the plaintiffs from the
property in dispute nor otherwise caused any threat to the
assumed title or ownership of plaintiffs or to the status of the
disputed structure. The demolition of the building in 1992 and
entrustment of the property in dispute with a statutory Receiver
under Act 1993 would not give any benefit to the plaintiffs in
the matter of limitation, inasmuch as, Relief no. 3 has been
inserted by the plaintiffs (suit 3) by way of amendment in 1995
only. If the suit filed in 1961 was already barred by limitation,
any subsequent amendment and addition of relief would not
give a fresh lease of limitation to the plaintiffs. Limitation once
starts running shall not stop and shall meet its natural
consequence.
2445. Mata Palat (supra) is a Division Bench judgment in
respect to a question as to whether leave to withdraw an
application for execution of decree to make fresh application is
permissible with regard to proceedings after decree. This Court
held that Section 375A of C.P.C. 1882 did not apply to an
2450
application subsequent to the decree. The reliance placed on the
above judgment is wholly misconceived and it has no relevance
with the issue in question.
2446. Next is Prajapati Vs. Jot Singh (supra). It was a
reference made by the local Government whether a decree of the
Commissioner is correct or not. From the judgment it appears
that no question of law was framed while making reference but
the Court found that since the decree of the Commissioner
proceeds merely on the point of limitation hence the reference
was entertained and answered. This Court approving the
judgment in Kali Prasad (Supra) held that a fresh cause of
action has arisen to plaintiff to bring a suit, even though a prior
cause of action had arisen to him beyond the period of six years
of limitation laid down by Art. 120. No issue pertaining to
limitation was considered therein and we find no relevance of
the said judgment to the present dispute.
2447. Jagat Mohan Nath Sah Deo (surpa) is a decision
pertaining to rights of tenent to sub-soil and we find nothing
therein which may have any relevance to the case in hand.
2448. Suryanarayana (supra) is a single Judge decision
holding that entry in the record of rights affords a fresh cause of
action to the plaintiffs for filing a declaratory suit. If a suit is
brought within six years from such date, it is not barred by
limitation under Article 120 of the Limitation Act. The learned
Single Judge followed an earlier decision in Anantharazu Vs.
narayanarazu 1913 (36) Mad. 383. However, we find that the
view taken in the above case is not consistent with the view of
Allahabad High Court which was taken as long back in 1909 in
Akbar Khan (Supra) followed in (Lala) Shiam Lal (Supra)
and thereafter consistently. Even otherwise, it is not the case of
2451
the plaintiffs (Suit-4) that the cause of action record afresh after
22
nd
December, 1949 and in any case before six years before
filing of suit in December, 1961. Therefore, also the above
decision of Madras High Court does not help the plaintiffs.
2449. Muktakeshi Patrani & Ors. Vs. Midnapur
Zamindari Co. Ltd. AIR 1935 Patna 33 is a Division Bench
judgment stating that for a suit for a declaration and injunction,
the period of limitation is six years from the date of the invasion
of the plaintiff's right. As long as the title of plaintiff is not lost
by adverse possession of the defendant, each invasion gives him
a fresh cause of action. Again the position is same since there is
no averment in the plaint as to how a fresh cause of action
accrue to the plaintiffs and that too within six years from the
date of filing of the suit, no credence can be lend to the plaintiffs
with the support of the said judgment.
2450. Shankarrao Sitaramji Satpute & Ors. Vs.
Annapurnabai AIR 1961 Bombay 266 again is a Division
Bench decision which also does not help the plaintiffs. This is
evident from para 32 of the judgment which says:
"This disposes of the main point in the case. The next
question to be considered is that of limitation. Now,
according to Mr. Bobde, the learned Judge, was wrong in
holding that the provisions of Sec. 28 of the Limitation Act
extinguished the Plaintiff's right only with respect to two
fields and not the remaining. It seems to us that the learned
Judge of the Court below was wrong even in respect of
those two fields also and that the Plaintiff's claim with
regard to them should have been decreed, that is to say,
both these fields should have been included int he list of
property available for partition. In so far as the nine fields
2452
are concerned, it is not disputed that prior to the
commencement of the proceedings under Sec. 145 of the
Code of Criminal Procedure, they were being cultivated by
Parasram who was a lessee from Gopalrao. When
Gopalrao gave the lease, he was the sole surviving member
in the family and as such he was in a position to grant the
lease. In setion 145 proceedings, the learned Magistrate
confirmed the possession of Parasram with respect to these
fields. Now Parasram is not a party to the suit and the
Plaintiff is not claiming any possession from him. The
possession of Parasram would enure to the benefit of the
members of the family who had interest in that property.
There was no order by the Sub-Divisional Magistrate that
only the Defendants Nos. 1 to 4 would be deemed to be in
possession of the property or that Punjabrao was in
possession of the property on their behalf. In these
circumstances, the learned Judge of the Court below was
right in holding that the Plaintiff's suit in respect of those
fields was not barred."
2451. Nata Padhan & Ors. Vs. Banchha Baral & Ors.
AIR 1968 Orissa 36 does not have any implication on any of
the issue and help the plaintiffs in any manner. The learned
Single Judge Orissa High Court found that during the pendency
of suit before the Revenue Court, proceedings under Section
145 Cr.P.C. was initiated and hence held that if the possession
was given by the Magistrate pursuant to the final order passed
under Section 145 Cr.P.C. that will have no impact since it is
always open to the Civil Court to take a different view with
respect to title and ownership and it is the order of the Civil
Court which is ultimately prevail. It also held that no fresh suit
2453
is necessary to be filed to seek possession challenging the order
of the Magistrate. We need not to make any comment on these
proposition for the reason that they have no relevance with the
facts and dispute involved in the present case and therefore, this
judgment also has no application.
2452. We are clearly of the view that suit in question is
barred by limitation under Article 120 of the L.A. 1908.
2453. Issue no.3 (Suit-4) therefore, is liable to be
answered in negative. However, before answering it finally, we
also intend to test it on the anvil of Article 142 in the light of the
oral evidence produced by the plaintiffs (Suit-4) as to whether
even that can help the plaintiffs or not.
2454. In order to attract Article 142 what is necessary is
that the plaintiffs were in possession of the property in dispute
but dispossessed or discontinued the possession within 12 years
within the date of filing of the suit by the defendants. The point
in essence whether the suit has been filed within 12 years from
the date, the plaintiffs is so dispossessed or discontinued of
possession of the property in dispute.
2455. The submission of Sri Iyer, Senior Advocate, Sri
P.N. Mishra and Sri M.M. Pandey, Advocates is that since 1934
no namaz has been offered in the inner courtyard or inside the
alleged mosque and, therefore, the suit is hopelessly barred by
limitation. In the alternative it is submitted that the last prayer
was offered by the plaintiffs in the disputed premisses on
16.12.1949. The suit having been filed on 18.12.1961, it is
beyond the period of 12 years and, therefore, is barred by
limitation. They submitted that initially the plaintiffs, some of
whom are also defendants in Suit-3 have pleaded that the last
prayer was offered in the alleged mosque on 16.12.1949 but
2454
subsequently they took a contrary stand in the plaint (Suit-4)
filed much after the date of filing their written statement in Suit-
1 and Suit-3 and also in Suit-5. The admission of the plaintiffs
in the written statement with respect to the date of offering
Namaz is binding. The subsequent change in the stand needs to
be ignored. In these circumstances, they submit that even if
Article 142 would apply, Suit-4 is barred by limitation.
2456. Per contra Sri Jilani and Sri Siddiqui, Advocates
submitted that 16.12.1949 was mentioned as the last Friday
prayer but so far as the daily prayer is concerned it was
continued and last offered on 22.12.1949. Several witnesses
examined by plaintiff (Suit-4) have deposed in its favour.
2457. The burden to prove initially lie upon the plaintiff to
bring in the suit within the period of limitation.
2458. In Shyam Sunder Prasad (Supra) the Court also
considered the question of burden of proof and observed:
4. The question, therefore, is on whom the burden
of proof lies in a suit based on title and for possession. In
view of Article 142 of the old Act, the burden, undoubtedly,
is on the plaintiff-appellant to prove that he has title to and
has been in possession and he was dispossessed and
discontinued his possession within 12 years from the date
of the filing of the suit. . . . . The defendant did not come to
the court to establish his adverse possession by
prescription. The burden of proof, therefore, does not rest
on him. It is, therefore, for the plaintiff/appellant to prove
that not only he had title to the plaint schedule property but
also he had possession within 12 years and he was
dispossessed or discontinued his possession within the
period of limitation prescribed under Article 142. The
2455
burden, therefore, is always on him to prove that he had
possession within 12 years from the date of the filing of the
suit and he has title to the property.
2459. Let us examine first, how the right/interest in the
disputed premises has been claimed by the plaintiff to be
exercised and up to what time, in order to bring their suit within
limitation vis a vis Articles 142.
2460. PW-1, Mohd. Hashim son of Karim Baksh is
himself plaintiff no. 7 in Suit-4. He deposed in his examination-
in-chief on 24.07.1996:
r| i sss - i| -l- - -i n i |. . . . .
i| -l- - ii - | -i ri n| i|| i|i| i i n
| -i | r i -- | ni| -i | r| . . . . -
ln- -i zz l- ss | || ( )
For the first time I went to offer namaz at the
Babari mosque in 1938. . . . . Namaz used to be offered five
times at the Babari mosque. I have sometimes offered
namaz five times and have also offered Jumma and Taravi
namaz.. . . . . I offered the last namaz on 22
nd
December,
1949. (E.T.C)
2461. He also said that at that time Maulvi Abdul Gaffar
was Imam and one Ismail was Moazzim of the said mosque. His
age is 75 years in July, 1996, meaning thereby his year of birth
comes to 1921. The dispute arises in December, 1949 and after
more than 45 years the witness at the age of 75 could
categorically recollect that he offered Namaj for the first time in
1938 but when asked about the month or the season, he could
not tell and in fact gave interesting reply that had it be known to
him that this would be necessary for deposing statement in the
dispute he would have noted it down and kept in memory. On
page 19, PW1 said:
2456
r- r r| -i - l l -i- - i l -ir - r- r|
i i| -l- - -i n | sss - r| i r-
-i n ni r- n| r-ii i -l- |
ii|( s)
I do not know in which season or in which month I
went to offer namaz at the Babari mosque for the first time.
In 1938, I was alone when I had gone to offer namaz for
the first time. Our house is near the mosque. (E.T.C)
2462. Then on page 21 he says that he used to visit
disputed building for Namaj hundreds of time in a year but do
not remember name of anyone who offered Namaj in the said
building alongwith him though he admits that some persons of
his locality used to come. He could also recollect that in 1938
when he offered Namaj for the first time in the disputed
building, about 15-20 persons were there. In order to test the
veracity of the statement pertaining to alleged visit to the
mosque for hundreds of time, he was cross-examined about the
topography of the building and site. On page 23-24 he said:
liln -l- i iin r | ir|| ir |
|i i i- r | n -n | n i |
| iin - ir n n r n | l i - n|
i r | - i i -n | n i i | r
liln -i ir| n i ii r | i- i
n - r| ii ii| r | iin ii ii i r |
li i i r i ii| -n| iin - i ir| |i ii ii
r | i ii| | n i ; i- r| ii| ri i
| n ii ri | in i ri r | i i
| + i r- n| - +i i|| - ri i i n
~ir lii r |............. ir| i lii | n i
ni r r / x z l- r | ;| + i; -|- r| ; +
s i r |.............; n lr nii | - ln i ii
2457
i lii| r| n|| ( zsz)
The disputed mosque has two portions interior
and exterior. The outside wall has two gates of which one
was towards the east and the other towards the north. The
inside portion has iron-made windows and the wall with
those windows has three gates. Of them one gate lay
towards the north. Facing the outside gate of the disputed
site, the inside bungalow itself had a wall. This inside gate
was made of iron rods. The gate at the outer wall located
in the northern portion, was made of wood. There was no
gate towards the east. With all my understanding, I am
looking at there being no gate towards the east. The
eastern gate was 3 feet higher than me. (Himself stated)
The word 'Allah' is written on both of its sides. . . . . . . . .
Towards the south of the outside gate in the east lies a
chabutra measuring 17x24 feet. Its height is 1 metre. It has
a thatched roofing. . . . . . . . Idols of Hindu deities on this
chabutra are not visible to visitors. (E.T.C.)
2463. His statement that there are three doors in the
internal dividing wall made of iron angles etc. and that no gate
was there on the eastern site, falsify his knowledge about the
topography of the disputed building. On page 33 he says that he
offered Isha Namaj on 22.12.1949 in the night at 8.30 pm.
Thereafter on page 54 he clarified that Friday Namaj was
offered on 16.12.1949 but thereafter five times prayer continued
till the night of 22.12.1949.
2464. On page 64 he said:
zz l- ss r ii - nili - ;--i; | r
-| r n ri rn| i| l | lri;i ri r| i|| ;
i i - l ri ;i l | | r| i | | ;--i; ii ;
ii | iii i i ; r| ni ii l ;--i; i r|
2458
- n~| l n li r i ii| ( c)
Prior to 22
nd
December, 1949, Ismail was always
on duty at the disputed property but he had no residential
facility there. Nobody had any residential facility at this
property. Except for Ismail, nobody else took care of this
property. Mutvalli had appointed only Ismail for this
purpose. (E.T.C.)
2465. He also confirmed that there was no place for
sleeping in the disputed building on page 70:
; ii - i| l i l n i i - i | i ;
nr r| i | i; - il ri i r| ni ii| ( /o)
This property, that is, the disputed property, had
no place for sleeping and no tourist stayed there.(E.T.C.)
2466. On page 174 PW 1 says about placement of lock by
Zahur Ahmad in the month of November, i.e., 22.11.1949 at the
instance of police who had apprehension of danger. The witness
is so simple that in a long cross-examination when he find some
difficulty, on page 177, on 27.08.1996, he says:
r-i | ir i -i - ri ni l - - i ni r-
ni| - n i r| l ; in z n-n, ssc i - i
i | ir ni i | l| n n i ii|
li| ( //)
Our counsel must be in the know of the time when
we had come to know of this case. I do not recall whether I
gave statement in this regard on 21
st
August, 1996 on being
tutored by the counsel or on my own understanding or
knowledge. (E.T.C.)
2467. Then ultimately on page 186 (the cross-examination
recorded on 29.08.1996) he admits about his weak memory and
said:
r -| r l - | r - | i i n -i
2459
ri n; r, r in | ir i i ri n|| ( sc)
It is true that my memory has weakened due to
age. These points must be in the memory of the learned
counsel. (E.T.C.)
2468. One thing he consistently said that he offered Namaj
for the first time in the disputed building in 1938 and this he
reiterated on page 190 also. There is a serious dispute about the
age of PW-1. He admits to have filed a writ petition before this
Court in 1986 where in the affidavit he mentioned his age as 55
years. If that is taken to be correct, his year of birth comes to
1931. He claims to have studied up to Class-5 and on page 66
says that he passed class 1 at the age of 8-9 and regularly passed
subsequent classes within five years. Thereafter he studied
Arabic from Imam Saheb. He admits that in 1949 he was
studying. These facts are self speaking and, therefore, we find it
difficult to believe the statement of PW 1 that he offered Namaj
for the first time in the disputed building in 1938 and
continuously thereafter or that he offered last prayer in the said
building on 22.12.1949 in the evening.
2469. PW-2 Hazi Mahboob Ahmad son of Hazi Feku
commenced his statement on 27.09.1996. He has disclosed his
age as 58 years, meaning thereby his year of birth come to 1938
but he has admitted to have passed High School and B.A. and
on page 3 of the statement he admits that his year of birth in his
High School certificate is mentioned as 1944 and he passed
High School in 1961. He has also stated on page 3 that at the
time of passing High School his age was 21 years since he took
two years in the passing of High School but if that is also taken
to be correct his year of birth would come to 1940 and not 1936.
On page 11 he says:
2460
- i- i | - - rii ii li ii| - rii
iii ni n n - nili ;-in r| r ; i|| ( )
At the age of 8 years I came of age. When I came of
age, the disputed building was not attached. (E.T.C.)
2470. His father Hazi Feku was defendant no. 3 in Suit-1
and defendant no. 6 in Suit-3. Since he has died, in Suit-1 there
is no substitution but in Suit-3, PW 2 has been impleaded as
defendant no. 6/1. On the one hand he has said in his
examination-in-chief to have offered Namaj for hundreds of
times in the disputed building, i.e., Friday Namaj as well as five
times Namaj and and last one was on 22.12.1949. In view of his
admitted age mentioned in the High School certificate, i.e., 1944
it is unbelievable that in 1949 when he was just about 5 years of
age had been offering Namaj and that too he had earlier offered
for hundreds of times. On page 19 he says:
- rii iii ni - ini ii l liln ii | n
i n in in i , l - i-n ii r| ini ii, ;l
- r| r ni l i-ni i i ii i ; i- i|
i r| |. . . . r- ri i iii ni i r- liln ii
| n i| n r| r| , i l ri n i li ni ii i
- -i | r ri in r| r| i | ( s)
When I came of age, I used to see that people
frequented the disputed property but I did not go by that
way most of the time, hence, I can not say whether or not
there was any bar on to-and-fro movements of visitors. . .
After coming of age I certainly never went to the disputed
property, because idol had been installed there and the
Muslims did not go there out of fear. (E.T.C.)
2471. If he is correct in saying that he used to visit the
disputed building for hundred times there was no occasion for
him to say that he did not travel the way towards disputed
2461
property for most of the time and after coming to the age of
understanding he did not go since idols were placed therein. The
statement of PW 2, is unrealistic and lack trustworthiness.
2472. PW3, Farooq Ahmad has said that he used to offer
Namaj in the disputed building, i.e., Babri Masjid. He offered
Friday prayer. Last prayer was offered in this building by him in
December, 1949. He went after offering Isha Namaj. This was
the end of December, 1949. This statement was given by PW 3
on 07.10.1996 disclosing his age as 90 years, meaning thereby
he claims his year of birth as 1906. However, he was confronted
with an application filed on his behalf in Suit-4 in the year 1990,
i.e., Application No. 42-O of 1990 wherein mentioned his age in
the affidavit as 65 years. He admitted to have put in his thumb
impression on the said affidavit and says:
| ir nir i i o o| i l
i-n zi so ii i o o o ,ss | i lii
-ni i ni ri - ri-i i li r ; - i
lii n -i r | l -nin - r| r i l l r -nin
lr| - r l - - -nin ni r| ;- - | - cr
i l i | r l r - - r| ni; r - -
r| i l i i | i | | ( s)
The learned counsel drew the attention of witness towards
paper no. 101-C, which is Application 42-O/90 in OS no.
4/89. After looking at the document, the witness stated that
I have seen the affidavit and it bears my thumb impression.
However, the signature is not mine because the signature is
in Hindi and I sign in Urdu. My age is mentioned as 65
years in it, but this age was not given by me. I had got this
age mentioned casually by guess work. (E.T.C.)
2473. On page 70 he was confronted with another
application which he filed on 18.03.1986 mentioning his age in
2462
the affidavit as 60 years. On page 70 he said:
- ri - - | - i i i
co l i i ; i|| ; n - | - i so i r | - | - so
i | ri i| in r| r , ri- - - i |
ir lii | rin|| r-i| i-n ssc i| ri iil
ri n; i| | . . . . . .- n i r| i l i | i n ri
| r l ss i | - | r i -n - r ; i
r| | ( /o)
I had got my age mentioned as 60 years in the
affidavit by guess work. At that time I was aged about 90
years. The fact about my age being around 90 years, is
correct. The age in affidavit must have been mentioned by
the advocate out of guess. (E.T.C.)
2474. He admits to have filed a suit against his cousins and
brothers, i.e., Suit No. 138 of 1993 and therein he mentioned his
age as 67 years in 1993. When confronted, he did not deny but
says that he does not remember. On page 91 he says:
r i| -| r l -|ii | in -
ii; in|i i ini - n ; - - l r r| . . .
. . .i - -i o ss,ss r| - n i r| r l -
- -i - | - c/ i lii; ri | . . . . . . - n i r| l
i-n - - | - /o i lii; ri| ( s)
It is also true that I have filed cases against my
brother-nephews regarding land-property and they have
also filed many cases against me. . . . . . . . . . . . .It is case
no. 138/93. I do not remember that I have mentioned my
age as 67 years in it. ... I do not remember that I had
mentioned my age as 70 years in that application. (E.T.C)
2475. He does not understand the dates and admits it on
page 71.
- n ni|ii | -i - r| | (Page 76)
2463
I have no knowledge of the dates. (E.T.C)
2476. Then ultimately he also admits of his weak memory
on page 101:
r in r| r l - | r - | i n -i ri
| r | ( )
It is true that my memory has grown weak on account of
age. (E.T.C.)
2477. What we actually notice is that mainly he was
produced to depose statement about putting lock in the disputed
building in the night of 22.12.1949 and in reference thereto in a
casual way he has said about offering of Namaj also. His
statement about placement of lock is also self contradictory as
shown below:
- nii ii ni ii i nii ni i
ii ni r - n - il ri n i|. . . . . . . . nii
l - n ini ir lrin | i||
r rii r i ini | nii i
ri ni i r liln ii - nii r| rii ii`
-n r| ri ni ii| ( z)
I had gone with him with a lock and on return after
putting the lock, he went back after giving me in the
custody of my father. . . . . . . .. The inspector had
instructed me to put the lock.
Question:- When the inspector asked to put the lock,
does it mean that prior to it the disputed property was not
locked?
Answer:- It was not locked. (E.T.C)
n i| |i - ii -n | n ii i
| n, | n z i, - nii | - nii ii|
( z)
The grill wall had gates in north and east. There
2464
were two towards east and I had put lock in between them.
(E.T.C.)
r i n nn| r ni i i l - nii | -
nii ii, - i nn ni ni i |
; - -in - - | i; i-n r| n i| l - -|
ii i i ii i n-|- r lii i l ss - ni
- ni i | (Page 72)
I had incorrectly stated that I had put lock in
between. Actually I had put two different locks on the two
gates.
I moved no such application in these cases to effect
that my plaint or written statement be amended and it be
mentioned that I had put the locks in 1949. (E.T.C)
- i r nii i l ri; i - - i| r| li
ri ni| (Page 79)
My father must have not mentioned about the locks
before the High Court as well. (E.T.C.)
i ni - i r l i - i ii
i ri ii| r ni i i i r i| n
ri i| i l ri n | . . . . . . . . n in o
i n ii| . . . . - r s i r l i ri ni l
i- ini r-i ri in i z.oo i i | - i r
| | i i i , ri ni r l r i i - i
r| ni i ri | (Page 85)
The locks given by my father, were red and green in
color. They were new locks and had been kept inside the
house. He could not have purchased it at that time . . . .. . It
was around 10-11 PM by that time . . . . . . I may have
stated erroneously that inspector Ramdev had come over
to my place at 12 in the mid night. My father had brought
it from a nearby shop. It could be that he had brought
2465
the locks in the evening. (E.T.C)
iii ii i n| - il ir - n i n r i
nii ii| r i- i ni - il i r
i | (Page 86)
(We) went to sleep after having dinner. My father
woke me up. Inspector Ramdev had already reached my
father.(E.T.C)
l r ; -l - - ni i r| nni
i i | n - nii nii -il- -l- r| ii|
r r ii - ii| i lr- - r| ii| r ir i
r - ii| - ni i ni ni ni -i l - s
| i n ri i i | r- i r| ni i | r-
ni i ni i i i n -i l - ;--| i
i ni ri | (Page 87)
Locks were not put at the mosque prior to that
day. When I put the locks, the Muazzim was inside the
mosque. He was in the courtyard gate and not in the inner
part. He was in the outer courtyard. When I went to put
the locks, the Muazzim was sleeping under the thatched
roof. I did not wake him up. I returned home after
putting the lock and the Muazzim kept sleeping
peacefully.(E.T.C)
- n r ni|i i r| l -- in i l ii
i ni | r-i il i nii ni l ri ii| r- ini
| ii n i nii ni li| i| i i|
il i | i|| r| ni in r - ssc - ii n |
| - - niln nii ni ri| (Page 100)
I do not remember the date, but it was Jumme Raat,
when the inspector had asked my father to put the locks. I
had gone with the inspector and put the locks. After return
home, I gave the keys to my father. These very locks were
2466
opened in 1986 by order of court. In meantime, it remained
continuously locked. (E.T.C)
2478. On page 87 PW 3 says that when he visited the
disputed building to place lock in the night of 22.12.1949
Moazzim was inside the mosque and was sleeping under
thatched roof (Chappar) in the outer courtyard but this stand
contradicted the statement of PW 1 where he said that there was
no place for sleeping or studying in the disputed building. With
respect to thatched roof in the outer courtyard, PW 1 on page
31/32 said:
| i- i ir| |i -n
n -i i s ii r ii ii i r| r r| ni
ni| r -i i s |- | ii i n s -
rn i - n r| -i - i in rn i | ; s |
l r i n rn i - -i i n r| rn i | . .
i i -ii l- | n i l -i | i| r l -i l
r| |i | ---n l | i|| . . . . i i ii |
ir| |i i s i ni ii i i |
|i - |- | ii| ( ssz)
On coming inside through the eastern gate there
was a spacious shed towards the north inside the outside
wall. I cannot tell whether it was a store house or not. This
long shed was beneath the neem tree. People lived in the
shed but I do not know who they were. Those who lived
under this shed were Hindus, not Muslims.. . . . . . . . The
Parikrama (circumambulation), which was built towards
the west of the attached place, was for the repair of the
wall, not for parikrama. . . . . . Inside the exterior wall of
the attached property were two sheds and a chabutra
(rectangular terrace). Another chabutra was adjacent to
the eastern wall and was beneath the neem tree. (E.T.C.)
2467
2479. PW1 on page 174 has said that on 22.11.1949 Zahur
Ahmad had put a lock.
- -r| - zz - ss i nii r r-
nii ii , nii l r nii ii , l i in
i ri ii ( /)
On the 22
nd
of November, 1949 Jahoor Ahmad had
put a lock. He had put the lock at the behest of the police.
The police had the apprehension of danger. (E.T.C.)
2480. This contradiction could not be explained by learned
counsel for the plaintiffs and, therefore, we find difficult to
believe the statement of PW 3 also about offering of Namaj in
the disputed building.
2481. PW 4, Mohd. Yaseen has confined his statement
about offering of Namaj on Friday and says that last time he
offered Namaj in the disputed building about 47 years ago and
since in the night of 22/23.12.1949 idols were placed therein,
Namaj could not be offered on 23.12.1949. On page 1 he says:
- -- | -i - i ni ii| -- i i
- - i i ; -i r| | | ili| i - -
-- | -i i n| / i r | i|| zz,zs
l- ss | in i - -ln i | n| i|| ;l -i
i ni| ( )
I consistently offered Jumma namaz (Fridays'
congregational prayers) thereat. Except for Jumma
namaz, I did not offer any other prayer thereat. I, for the
last time, offered Jumma namaz thereat nearly 47 years
back. The idol was placed therein on the intervening night
of 22
nd
/23
rd
December, 1949. This was the reason why the
offering of the namaz came to an end. (E.T.C.)
2482. PW 4 has deposed his age as 66 years on 29.10.1996
when his examination commenced which takes his year of birth
2468
to 1930. On page 51 he says that prior to the incident of 1949
the Babari mosque was never locked. However on page 20, 21,
23 and 59 regarding Namaj he says:
; -l- - - -i ini ii ni - - r
i i-| ni r i r| n i| (Page 20)
When I used to go to offer namaz at this mosque,
there were at least 4-5 hundred people over there.(E.T.C)
l i ; -l- - -i i ri ni ls
-- i i| rili- l-i - n ; -l- - -i l- i i r-
| i ln s| i|| (Page 21)
In the Jumma preceding the day on which offering
of namaz was stopped at this mosque, Hashim had met me
at this mosque at time of namaz and we both had inquired
about each others welfare.(E.T.C)
- ; -l- - ii| l- i i r i ni
ii| (Page 23)
I started going to this mosque from 5 years before
independence. (E.T.C)
- -i i sss - i i l i i i
l i r| ni ii| sss - -i -l- - ni
ii|(Page 59)
I started offering namaz in 1938 but I was not
regular. In 1938, I used to offer namaz in mosque.(E.T.C)
2483. When in the cross-examination several questions
were asked about the internal topography etc. he said on page
59:
- | i i n s -i ri n| r |
(Page 59)
My memory is now feeble (E.T.C.)
2469
2484. When his statement was found contradictory to the
statement of PW 1 who is plaintiff no. 7 in Suit-4 he justified
himself by stating that PW 1 must have given wrong statement
as is evident from the following:
n ri l i - l -i i ; i i l i ri l
s | i| in -n i ni i ri nn r |
n ri | -r i s ri r l ; nr i
n ls rzo li ilni i i r i ii ni i
ri nn r | ( s)
If Mr. Hashim has given any such statement that
priests used to sit under said thatched roof, then his
statement is wrong.
If Hazi Mahboob has stated that the recluses had
surrounded this place from one side for last 15-20 days,
then his statement is wrong. (E.T.C)
ss ri n | ir - n~| i i r|
i ir - n~| i | . . .ii ir i n i s
ri r l ; ri n -l- i ; ni- r ir n i
ni ; in | r| i nn ri | l-- i| | r| - ni
l r ini r l -l - i ni- | ir n
i |(Page 50)
Mr. Zaki was the Mutwalli till the incident of 1949.
Mr. Javvad became Mutwalli after him. . . . . . If Mr.
Farooq has made any such statement that Mr. Zahoor used
to manage the mosque at time of the incident, then the
responsibility for its correctness or incorrectness lies with
him. I know only this much that the mosque was managed
by Mr. Zaki.(E.T.C)
n rili- l-i i; i i li ri l ri li;
i i- l scc s/c n li r ni r | nn i|
2470
r| (Page 51)
If Mr. Hashim has given a statement that he had
carried out tailoring work only between 1966 to 1976, then
it is his wrong statement.(E.T.C)
2485. This is really surprising that after almost 47 years
from the date of dispute the PW 4 though could recollect that he
offered Friday prayer regularly in the disputed building and that
too he started at the age of 8 but when the internal topography
sought to be enquired in cross-examination by placing before
him the photographs of the disputed building, he finds it
difficult in identifying the same and try to justify by taking
recourse to his weak memory. The extent of his memory may be
seen from what he has said on page 59:
lr -ni ii r i n | - n rii r | n -
z i i ii ( l ri l - / i ii) ( rs )
I have remembrance of the time of independence of
India. I was aged 11-12 years at that time (then stated that
I was 17 years old ). (E.T.C)
2486. The veracity of statement can also be examined
from what he has said on page 6:
- i -i -l- ii nni r i ii r ;|
-| lin ii | i|| - r -| | n - |
- or i | i|| - r -| -i n i| | i||
- ; in in li ilii i i| ;i i
li ii, ri ii i rini r| - r -i scc - ii ii
z i i ; n-riili i - n ni ii| - n
i r| l -| ln l i - -i ii ii,
nil oz i ni ri r| n ri n -| i -i i
| - | ( c )
The house built by me adjacent to the mosque,
2471
exists over the land obtained from Ayodhya Estate. When I
got this land, I was aged about 40-45 years. I had taken
this land on rent. I had also got an entry in this respect
entered in the records of the Development Authority, from
where map is approved. I had built this house in 1966.
Municipal tax came to be imposed in connection with the
same, two years later. As of now I do not remember after
how many years of obtaining this land, I had built the
house. There might have been an intervening period of
nearly 10-12 years between the obtaining of land and the
construction of house. (E.T.C)
2487. His year of birth comes to 1930. If he acquired land
when he was 40-45 years old, the question of construction of
house on the said land in 1966 does not arise particularly when
he says that there was a gap of 10 to 12 years between acquiring
of land and construction of house.
2488. PW 5, Abdul Rahman son of Saiuddin has deposed
to have pronounced Holy Quran in the disputed building in 1945
and 1946. During the period he stayed at Ayodhya for
pronouncing Holy Quran in Ramzan Taravi, he used to offer
Namaj in the disputed building. He is not a local resident of
Ayodhya but of Ibrahimpur, Pargana Mangalasi, District
Faizabad. He has given his age 71 years on 05.11.1996 when his
examination commenced. It means that his year of birth is 1925.
In 1945-46, therefore, he must be of 20-21 years. He does not
remember the age of his father at the time of death as well as his
own age at the time of death of his mother. He admits of his
marriage at the age of about 22 years but neither could tell the
date when he was conferred with the certificate and Dastarbandi
nor even the age or date of birth of his children.
2472
- r / li | - | i ; i
i i r| ni ni | (Page 36)
I have 11 children, including 7 sons and 4
daughters. I am not in a position to correctly tell the
years of their birth.(E.T.C.)
ri i ii rc i i r- i; i | i||
n - il ir li i | - r r| r| ni i+ ni l
- ri i ii ln li i i ;ni r i ii| i
r or i i i ri ni r|
- i+ - i| i; | r | - i| r| ni i+ ni l
i i i - i+ - i; | i|| . . .i+ - -
| ni|- -i ili ili, i - ril | i|| . .
i+ -i - i| ili i i ; i- r| ii ni ii, l~
- -i- i -i i- lii li ii| ( rrr)
5-6 years after I started understanding things, I
started my education. My father was at that time alive. I
cannot correctly tell how long after my having come of age,
he died. I guess it to be 10-15 years.
I have had my schooling in Lucknow also. I cannot
orally tell in which year I studied in Lucknow. . . . . . I got
schooling at Madarsa Aaliya Phurkania at Chowk in
Lucknow. . . . . .No form had been filled up for admission to
the Lucknow school also; rather, my maternal uncle had
gone there to get me admitted. (E.T.C.)
2489. Further about his visit at Ayodhya on page 27 and
31-32 he has said:
- r| i i i i i| i ni ni n i
| r -n i|| ; i ;ii il l - ; zz li
l i i| i i i ni ii - i| i| -l- -
r| ni| (i ri l - i ri; ni ii ni i-n -
2473
n | -i - i| -l- - i| | i|| ) -
li - --|- ni ii| ili l i | ii s/ - ii|
l- r i ii| - i i| ri i ii ni
ii -r| i r| r -ii ii ii| . . . . i i - ri n| i |
- -i i ni -nl | | i | i l | |
i | | n i - n i r r -i -nl | r| i|| l
n - -i | n ri -i l - i
i i l i n i | . . . .r- --| - - - i n
i n i | r ri nn r l ii- i --|- i ri
in| ri | ( z/)
When, for the first time, I went to Ayodhya to recite
the holy Quran, it was English Rule. I never visited the
Babri mosque except on these two occasions, that is, when
I visited Ayodhya to recite the holy Quran for these spells
of 12 days each. (Stated on his own) Once, on my way to
Bahraich I had offered namaz one time at the Babri
mosque. At that time, steamer was in use in the stream of
the river Saryu. Those were rainy days. This episode
preceded 1947 when independence was achieved. I had this
chance only 2-4 months after I had returned from there
after having recited the holy Quran. . . . . . It was evening
time; I had offered namaz, whether 'Magrib' or 'Asir'.
As far as I remember, it was not 'Magrib' namaz. The
moment I offered namaz, only muazzim was present
there, who used to give 'Azan' calls. . . . . . I had gone to
Bahraich in a steamer during the night time. It is wrong
to say that steamer services used to be in operational after
evenings. (E.T.C.)
- i i r| i i i| i ni ni -i
-r| | r| ni|i i|| (i ri l zs iii i r- ri
r in i n i ri i ini ni ri i n i |
2474
in i) - n r| i r| l - l ii i (l ri l - n
i r l - iii | zs ni|i i i i r ni ii|) -
i i r i i ri i r i ni ; - ln --
- r| r| ni ni l --i ni | ii ii| r|
n|i ii i i i i i| ri ii| . . . .ri ni r
l r- ri i| --i li ri i i i ri
l --i ni li ii| . . . . r- i r| r l ; -i
- -i o rili- ri| , ri| i i i-n | ir i i
r| l ri| i| ( ssz)
When I for the first time went to recite the holy
Quran at Ayodhya, it was the first day of the Ramzan
month. (Stated on his own that we had reached there on
29
th
. When the moon was sighted there, we used to recite it
that very night.) I do not correctly remember the particular
day. (Further stated) I remember that I went to Ayodhya on
29
th
of the lunar month. I cannot tell how many Fridays
intervened between the day I reached Ayodhya and the day
I returned from there. But one Friday had certainly
intervened. This was the very way in which we visited the
Ayodhya the next year also. We may not have performed
even a single Jumma and may have come back home; but
one Jumma was certainly performed. . . . . . We do not
remember whether Mohammad Hashim, Hazi Pheku, Hazi
Fayak or Qayamat Ali were present at this namaz or not,
but Hazi Pheku certainly attended it. (E.T.C.)
2490. He claims to be related with Hazi Feku and said that
he was invited for reading of Holy Quran at Ayodhya by Hazi
Feku (i.e., father of PW 2) (at page 21-22).
2491. PW 6, Mohd. Unus Siddiqi son of Late Hafij
Ahmad, a Pleader enrolled at Lucknow on 09.07.1955. He did
his High School in 1948 and Intermediate in 1950 from
2475
Faizabad and thereafter he went to Lucknow for Graduation and
to Aligarh for Post-Graduation and Law degree. He was earlier
counsel of the plaintiffs in the suit but has stopped appearing
since 1965. He claims to have offered Namaz in the disputed
building for the first time at the age of 12-13 years in Shab-e-
barat and thereafter every year during Shaberat except of once
when he offered Namaz in day time, i.e., on the Friday before
placement of idols therein. His statement commenced on
29.11.1996 when he was 63 years of age meaning thereby his
year of birth comes to 1933. In his cross-examination he admits
that he is connected with this case since 1961. In his cross-
examination on page 8 he admits his date of birth mentioned in
the High School certificate as 27.08.1932. He visited the
disputed building as Survey Commission in 1991 though the
nature of this commission is not clear. Some part of his
statement may be noticed as under:
- ii s -i r~i i ini r i| i r||
sr/ i scr | - n ; i i i n
-i - r i i i l r i l i ; i | | - r|
ni i+ ni l li| ni ; ii i lni i ii|
( s)
I know some of the localities of Ayodhya, but not all
of them.
Between 1957 and 1965 I came to know as to
when this property was erected and by whom. I am not in
the position to tell how much area this property basically
had. (E.T.C.)
in i - ri ini ii ni in s - in r
lii; n i | ( )
When I went there during nights, people were often
2476
seen sleeping in sheds. (E.T.C.)
r-i -ir~ s in i| r-i ii i | r-i i -i r~i
i i - r l i i - | r-i ii i i i i;
i-| r| ii| r- i n ; i; li i i| c i-|
i |
- i l n r- l i l n i i
r ni i n o i i | . . . . . -i
- nili ii - lin r i | - n -i - r| l lini i
; ni- l li ii| r- lin r| n i| in in in
rn i - i roco i -| ni ri i |
. . . . . . r- i l | i | | ( r)
Some other people of our locality were also with us.
Our locality is in Faizabad, not at Ayodhya. No body
from Ayodhya was with us. We had come on many cycles.
We were certainly 4-6 persons. None of the persons who
had gone with us are now alive; all of them are no more.
It was, as I guess, 10 or 11 O'clock at night when
we reached the disputed property.. . . . Lamps were
lighted at the disputed property on the site. I do not know
who had arranged the lamps. We had not taken along the
lamps. People frequented there. I guess that 50-60 people
were certainly present there. . . . . . I had offered 'Nafil'
at half past 11. (E.T.C.)
r r| -n i ri i i i ilni i ii
l-, s ri n| oz i r i r | l-,
ss ri i i| lsi --i n i ii i - ri
- nili ii - -i | i|| r -- | -i i||
- iiii ii; -io -r- ir i| - ii -- | -i
- i| i | r -i i r i n| i | |
n| i|| - i i i i -i| ni i | -ili -
i i i ii ii nr i n i| . . . . -i|
2477
n i ir ;-i-n | i|| ( c)
This incident of going and offering 'Fatiya' there for
the first time, precedes December, 1949 incident by nearly
10-12 years. I had offered namaz at the disputed property
on Friday immediately preceding the December, 1949
incident. That was Jumma Namaz.
My cousin, Mohammad Mahmood, had also attended
the Friday Namaz with me. This namaz had been offered
around a quarter past one in the afternoon. I guess that
namazists were certainly 400-500 in number. Among
namazists were included people both from Ayodhya and
Faizabad. . . . . . . . . . . . . . Maulvi Abdul Gaffar had
performed the job of Imam. (E.T.C.)
l- ss l --i i - -i -l- - ni
ni ni ri ri ii| ........ - - i r r i i ii|
( /)
On which particular Friday in December, 1949 I
went to the mosque to offer namaz, 'qutba' was in progress.
. . . . . . . . . . . At that time I was aged 16-17 years. (E.T.C.)
2492. On page 35, 39 and 41, PW 6 said:
- i| -l- ni ii r| i n rii ii
i ii (l ri l r| i ili| i l - r| i ni
ii i - n - rii ii i ii) ini n - i
i i in -i ri ni ii|
When I went to the Babri mosque for the first time, I
had begun to understand the things. (Further stated that I
had gone there only once a day, for the first and last time).
I went there 4-5 times during nights on the occasion of
'shab-e-barat'. (Page 35)
r - | zz,zs l- ss ls -- | -i
2478
r| l n ni ii| (Page 39)
Earlier, I had gone there only at the time of the
Friday Namaz preceding 22/23
rd
December, 1949, in the
day time.
l- ss - - -- | -i ; -l- -
ni ni | r | - lii | n i i r i ii| --
| -i i| i| i| i|| ooroo i-| - i| i |
(Page 41)
In December, 1949, when I visited this mosque to
offer the Friday Namaz, I was standing south-wards in the
middle of the inner courtyard. There was Friday Namaz;
there was much crowd. People attending it were 400-500 in
strength. (E.T.C.)
2493. However, regarding memory, when PW 6 was
confronted with some contradiction in his statement he said on
page 33:
(i ri l - | i i n -i r ) | - |
i i n | -i | ssc ri | i r ; r | (l ri
l ss/ i r ; r |) r -| r l i- r r l
i i n - i i - i | i i ni r | .. . . .
.| n i| ss/ - | li; i| -i ri n| r | - n
n - i- n| i|| ( ss)
(Stated on his own that my memory is weak). I
began to develop weakness in my memory from 1986.
(Again stated that it has started from 1987). It is true that
condition has now become so serious that I forget even the
name of my sons. . . . . My 'binai' (vision) has also
weakened since that time, that is, from 1987. I had
sustained head injuries at that time.(E.T.C.)
2494. PW 7, Hasmat Ulla Ansari, son of Niyamat Ulla
2479
has also deposed to have offered Namaz in the disputed building
for hundreds of time starting from 1943. The last Namaz he
offered in the disputed building about a week before the date
when idol was placed therein, i.e. night of 22
nd
/23
rd
December,
1949. He further said that he offered Namaz till two days earlier
from the date when the idol was placed. However, Namaz was
offered in the disputed building till 22.12.1949 is also his
statement. He has shown his age as 65 years in 1996, meaning
thereby his year of birth comes to 1931. He is High School
passed and in the High School certificate he admits to have
mentioned his date of birth 8.1.1934 though he claims that his
correct year of birth is 1932. He studied upto Class 4
th
in a
Madrasa at Kaziyana and, thereafter got admission in Katra
Middle School at Suthati and studied thereat upto Class 6
th
and
then went to Kolkata, sought admission in Class 8
th
thereat in
Fafas Inter College wherefrom he passed High School. On page
12 he says:
- n i i i-| l - l-i | ni|- |
i nii - n -i - ri ni ii l - i ni|i i;i nn li| n|
r| - i n nn| i -n i i i ; i ir| r|
|| ( z)
"When I got a certificate from the Fafas College on
completion of my schooling and I came to know about
incorrect mentioning of my date of birth, I have not till date
taken any steps for rectification of the said mistake." (ETC)
2495. On page 35, PW 7 stated:
ss l - ri n - i i l n
i i | ( sr)
"I was a minor at the time of December, 1949
incident." (ETC)
2496. About his date of birth, on page 44 he says:
2480
- rii iii ni| | i; i | i|| r- i
- ni n r| i l - - i| i n n | - il ir
i| i; -| - -| i i ; in i ;~- ii l i
i ili n n l l| | | i | | ri n| r |
- i ilii i- r | i; l - - - il
ir r| i ii ii| r i| | r l - | ni|i i; i
- il ir i lii; i|| r ilr r l i ni|i
i; i ri lii; i| r r| ri n|| ( )
I started my learning since the time I had come to
understand things. I did study at home and then began to
go to school as well. My father was a teacher at a
government primary school. He had the knowledge about
which particular information is necessary to be given at the
time of admission of children. My father had himself got me
admitted to school for my pre-class VIII schooling. It is
also natural for my father to have got my date of birth
recorded on his own. It is explicit that the date of birth
which he had got recorded must be true.(E.T.C.)
2497. On page 51, about his education he said:
scz - ir ii - rni i ri r| . . . . - i
;- i - ni ii n r i i i ini ini ii| -
ri i; ss -i sr n i ii| r-ii - r o
n ni ii l i i i r s ir z
n ni ii| . . . . .-ni - sc s n i n ri|
ri - -i- i - ri ri ii| - i n nr-|
l-l - - i ii| r - i i n - - i
ii| ( r)
I have been visiting the city of Faizabad since 1962. When
I was a student of Forbes Inter College, I took to and fro
trip to Ayodhya everyday. I studied here from July 1948 to
March 1951. Our school used to run up to 10O clock in
2481
the morning; but on Fridays it used to run from 8O clock
in the morning to 12:00 noon. . . . . . . . . I was in Kolkata
for 1 years between 1946 and 1948. my maternal uncle
was there; I stayed at his place. I studied for 1 years at
the Suthati Middle School. Before that I had studied at
Madarasa for four years. (E.T.C.)
2498. On page 60-61, 64 and 74, PW 7 said:
; -l- - n i i ii ri z l r -
i l i | i -i | i | | n n - ri - niln
-i ni i ri ii r ri nn rini l - ri - niln
-i n i i ri r ni r n | i|| -
i r l-, sc ii r i li r l- lii ni r
n ii ni r ni r n - ri - niln -i
ni ii| r n zz ,zs l-, ss | l-i| in i ii
ni ii| r - i i r| r l r i | r| r l ;
ri i z l r - ; -l - - l i | i
-i | i | | r in - + li n i r r|
i||
l n - r| i i| -l- - ss - -i |
n -| - n| z i i| i - rii -ii i
ii| r ri nn r l - | - i i n i i
ni ri r i ; in i; i ni ni -i ni r | . . .
lii i - - - ili r i ni -| - n| so
i r| rin|| . ..ri| -r - n - - n| s i si-
r| ( coc)
I had for the last time offered namaz two days
before the incident of idol being placed in this mosque. I
had been consistently offering namaz there at that time. It
would be wrong to say that I had continued to offer namaz
only up to a week ahead of the incident of idol being
placed. I have heard the December 5, 1996 statement of
2482
mine which says I consistently offered namaz up to one
week preceding the time when idol was placed. This idol
was placed on the intervening night of 22/23
rd
December,
1949. This statement of mine is correct but it is also
correct that I had for the last time offered namaz at this
mosque two days prior to this incident. I had stated this
thing earlier to the statement mentioned above.
When I, for the first time, offered namaz at the Babri
mosque in 1943, I was aged 11-12 years and had begun to
understand things. It is wrong to say that I am deliberately
over-stating my age or that I have distorted the truth in this
regard. . . . When I was admitted to Kaziana-situated
Madarsa, my age would have been nearly 9-10 years. . .
Hazi Mahboob is nearly 8 years younger to me.(E.T.C.)
; i - nn lii ni r l - n ri i; i
i-| l - l-i ii| - n i| i ; i-| l - r|
l-i| r ri nn r l ; in - i ; n - i ni r | (
c)
It is incorrectly written in this statement that I had been
given a certificate for having studied there. As a matter of
fact, I never got any certificate. It is wrong to say that I tell
a lie in this respect.(E.T.C.)
i i - r-i -i n n -l- r ss r i| -
ri -i ini ri r | i l i| -l- i-i -l- i|
;l - ri i| -i ini ii ri - -- | -i
ni ii i ni| i|| -- | -i r -l- - r| | in||
s ii ii -l-i - r| | in| r | ( /)
There are mosques in the vicinity of our house at
Ayodhya. I had been to that place to offer namaz even
earlier to 1949. Since the Babri mosque was Jama Masjid,
2483
I used to go to this place too in order to offer namaz. I used
to offer Jumma namaz as also Taravi namaz here. Jumma
namaz is not offered at every mosque. It is offered only in
some particular mosques.(E.T.C.)
2499. On page 77 and 81 again he (PW-7) said:
zz l - , ss i - ; -l - - -i r| |
i | | z l - ss i i | - ri -i r| |
i | | - r i -| li r l ri n ii ni ni
r ni r n - ri - niln -i ni ri ii|
- ri i i -i ni r| ni ii l | -i
ni ii| ( //)
I did not offer namaz at this mosque on 22
nd
December,
1949. I did not offer namaz there on 21
st
December, 1949
too. I have correctly deposed that I had continued to offer
namaz there up to a week prior to the time when idol was
placed there. I certainly did not offer namaz for five times
but certainly offered Asr namaz.(E.T.C.)
- -i s - si i ii| nr-| i l-l - sr - si
li ii| i ;- i - - ilii ss - li ii| - ri
l r i i i ii ni ii| i; n -i-
i li ii n rn i | - i; l i ri
ii ni ii| - i - ini ii ni -i ii - r|
li ni ii| ii- | -i i i i| -l- - ni ii|
. .ss n - ii - rni ii ni -- | -i ii -
ni ii i ii - ri ni ii ni i| -l- - ni ii|
i| -l- - l ri i| i r i ii| r r
- +i ii i n| r l- -i i| ri rini| r-i i- r
ri ;-n -i - r| ii i| --i - ii ini ii| ( s)
I left the Madarsa in 1944. I left the Suthati Middle
School in 1945. I was admitted at Forbes Inter College in
1948. I used to go to study there every day from Ayodhya.
2484
At the time of my education, season would change with the
progress of days. I used to go to school by cycle. When I
would go to college, I would offer namaz in Faizabad itself.
I would offer the evening prayer at the mosque situated
near our house. . . .. Till 1949, whenever I was in Faizabad
I would offer Jumma namaz in Faizabad, and whenever I
was at Ayodhya, I would offer namaz at the Babri mosque.
A tank was also built at the Babri mosque to supply
water for vaju. It was 4-5 feet high and would have been
nearly 5 feet in length. That tank was not in use within my
sight; water used to be filled in Matkas (water
pots).(E.T.C.)
2500. About his age, on page 78 the witness (PW-7) says:
-| r| i;i ssz | r l ss || - | ii| srr - r ;
i|| - sr - ri; - i li ii| ss - - ; -l-
- -i ini ii ni il ir | n| r|
ini ii| . . - s i | - - -i i li ii| ( /s)
The correct year of my birth is 1932, not 1934. I was
married in 1955. I passed my high school in 1951. In 1943,
whenever I went to offer namaz at this mosque I did not go
holding the fingers of my father. . . . I started my schooling
at Madarsa at the age of nine years. (E.T.C.)
2501. On page 85, PW 7 stated:
ii | o z,c . . . .- ii | i li r ,
;- s i; n| r ; r| r -| r l ;- l- | n i|
l -ni liii ni r | l -i - nil i r| ii i
; nr r ii ; r n nn r| . . . . . . ;
ii| lri s -i - r| ni l -l- l ii
nr i- i|| ii - nili n-i- -l- | r| i|| . . .
. r nii ni ni -l- - iil- r| ii| ; n
2485
i n i| lr in n i r i|n n r li
n i | . . r ri nn r l n i i| ni|i r l
r r| n - iiii li ri| n i
-r|i r r| ri i |n i ri ni ii| r i |n
in| in r i | l i r| r l ri nii
ii| iiii - -ii lii ri n r ri | r in| i n i
- n|i| | ri n | r- i n -i in i,
ni r in| i n nii i nn i r| n i| r in
iiil i i i-i r| in i | r- | -i
in i ni s, o i r n | nii - r i n i, -- | -i
n r nii i| ii ri in| i|| ( sr)
Site plan (paper no. 2/16 Ka). . . . I have seen the
site plan with some lines drawn therein. It is true that a
graveyard is shown towards the west as well but it was not
so at the site and in this way this site plan is incorrect. . . . .
From this site plan nothing is known about a particular
place where the mosque stood. The disputed property
belonged mostly to the mosque. . . . . This Chabutra,
mentioned above, did not form part of the mosque. Other
people, that is, Hindus, before laying idol, used to perform
Bhajan-Kirtan, etc. on this Chabutra. . . . . . . It is wrong
to say that I had stopped visiting that site15 days before the
day of laying idol. Bhajan-Kirtan had started there a
month before the laying of idols. Bairagis (recluses) were
performing Bhajan-Kirtan. But it is not that leaders were
delivering provocative speeches against Muslims there.
These recluses would be nearly 30-40 in number.
Whenever we would go to offer namaz, these recluses
would not engage in riot, affray or quarrel. These people
would not blow conchs, or ring gongs or bells. When we
would go to offer Asr namaz, we used to be 8, 10 or 15 in
2486
number. This number would rise considerably at the times
of Jumma namaz.(E.T.C.)
2502. PW 8 Abdul Ajij, resident of Shahjahanpur, District
Faizabad claims to have offered Namaz in the disputed building
for hundreds of time starting at the age of ten years. He has
stated his year of birth as 1926. His shop of making shoes is in
Angooribagh, which he opens in the morning at 8, 9 or 10 and
he return therefrom in the evening as is evident from page 4:
-i iiii -i- iir -l- i r| ii| r n| in -
ii ii| r iiii | n| - r| ii| r-ii iiii
i i| l- r- ni in i | r-i| i ii ii r
i- , i , i n| i|| r- iii ii- i
i-n i| ( )
"My workshop was not near Tat Shah Mosque. It was
situated in Angooribagh. This workshop was not in Kanghi
Gali. My workshop was a shop, in which I used to make
shoes. My shop used to open along with the market at 8, 9,
10 AM. I used to return home from my workshop in the
evening." (ETC)
2503. Chowk Faizabad is at the distance of a mile from his
residence while Ayodhya, Sinharhat is about three miles. On
page 19 he said:
- r| lii r - -- iin r l ri -- |
ln| -i | r l oz ni | r| ri n|| -i ss
i | i| r| s r | r | ( s)
Neither have I written it anywhere nor do I properly
remember as to total how many namaz of Jumma were
offered by me over there, but must have offered 10-12.
These namaz include the post 1949 as well. Few are of
earlier period. (E.T.C)
2487
2504. On page 25, he (PW-8) said:
iirri | -l- i - -i - | i|
n|-ii | -l- - | r | n|-iii - | -l- - -
| l| ni ii- -i ni ii| - n r i r| l
ln li i - iirri ir | i| ii i
i i | -l-i - -i i ni ii| ( zr)
After the mosque of Shahjahanpur, I have offered namaz
at the mosque of my Madarsa (school) i.e. the mosque of
Yatimkhana (orphanage). I used to privately offer namaz,
as per my convenience, at the mosque of Yatimkhana
Madarsa (orphanage school). I do not remember as to
after which period thereafter had I started going to offer
namaz outside Shahjahanpur i.e. at the mosques of
Faizabad and Ayodhya. (E.T.C)
2505. He further said:
nn i| ii i - ini r | - ri i r ii ni r| r
l l i| ir | in s ni ni r| ni ;
- n ir|i ii| -n | n i| i
--ii ii ii| li | n l -ni ii| l- | n
- i ii| nn i| ii n-i- | n-i- sn | r ; i|| - n
i r| l sz - iin si i i- i i; ii i ri |
- n i r| l li - i| li - i ; n r| ri i
sr - ii i ; -- - lnii ni ri | - r| i
; -l- - -i ii| r ni ii| - r r| ni
ni l ii| l- ln -r| i i r r| -n i ;
-l- - -i ni ii| r n - n ri | r ;l - r|
ni ni l - r| i ; -l- - i | -i |
i|| - -i -ili | nii r| ln| i - i nii
ni ii nn i| ri ni r| ;l - r| r ni l
-i ln -i| i | - n ;ni i r l - i r|
ii s i n i i| i| - r-i ni in i| i - -io
2488
ir, i | i| iil- i | ii ir i ni |
in - i r| li| - ni i- i li ii i ri
ii i ;ii ir i| i| n -io rili- r| i i
ri in rn i| ri| -r ri i| ir i| ri
-i i| ( zr.zc)
"I know the disputed property. Although I am not a resident
of that place, instead I can give some information
regarding the boundary. Probably in its east, was Ganje-
Shahida. There was road towards north and the
Janamsthan was situated above it. There was a graveyard
towards south. There was a ground towards west. The
entire disputed property was covered by roof. I do not
recollect whether any Quit India movement was launched
in 1942. I do not recollect whether in that period some war
had broken out in the whole world or that in 1945 some
atom bomb had been dropped over Japan. I had gone to
offer namaz in this mosque for the first time before
independence. I cannot give as to how many months or
year before independence, had I gone to this mosque to
offer namaz for the first time. Much time has passed, as
such I cannot tell as to which namaz was first offered by me
in this mosque. I did not count the number of Namazists at
that place at that time and the estimate given by me can
also be wrong. As such, I cannot tell as to how many
Namazists were there at that site. I do remember that I was
not alone and few other persons were also there. They
included people of my village as well. Mohd. Yusuf, Sardar
Ali were also included in them. I did not care about the
people of Faizabad city. Mushtaq, a Chikwa of Faizabad
and Ikhlaq were also present there. At that time, Mohd.
Hashim was not present there. However, he used to visit
2489
that place. Hazi Mehboob was present there. Abdul Ahad
was also present over there. (E.T.C)
2506. On one hand he stated to have offered Namaz in the
disputed building for hundreds of time but simultaneously
repeatedly he has said of not being conversant with Ayodhya:
- i i i ;ni r| i i l - ; i i
i l ;i i i r -i - | |
-l - r i r| | ( z/)
"I am not so much conversant with Ayodhya that I can
answer whether Ekhlak has his own mosque in his
house, or not. (ETC)
- i i i r i i r| l ~ i i i r
i i r | ( )
I am a resident of Faizabad and not Ayodhya. (E.T.C)
- ii - ii i-i r i r| r| ( rs)
"I have not traveled much in Ayodhya." (ETC)
i i i - ii r| s ii| r| ( /)
I do not have much knowledge about Ayodhya. (E.T.C)
2507. For verification of his age on page 16, he said that
he was issued a certificate in 1942 wherein his date of birth is
mentioned and he possess the said certificate and has also
brought it but then he said that the same he has left at the
residence. However, he did not deny that in the last voter-list his
age might have been mentioned as 60 years. On page 37, he
claims to have offered Namaz in the disputed building on the
last Friday before 22
nd
December 1949. He reached there at
12.00 and the Friday Namaz started at 1.00 PM. Razzak Saheb,
Hashim Saheb and Hazi Ahad Saheb were present thereat and
till the time of Namaz, the total attendance became 400-450.
There were 8 or 10 pitchers containing water for Vazoo. On
2490
page 61, he says that the Country became independent in 1947
and before then he had been offering Namaz at the disputed
building for about 13 to 14 years. For the first time, Namaz was
offered in the disputed building when he was 11 or 12 years of
age. Having given his year of birth as 1926, this statement does
not appear to be correct being self contradictory.
2508. PW-9 Syeed Akhlak Ahmad S/o Syed Haji Abdul
Sattar has also deposed to have offered Namaz in the disputed
building prior to 1949. He claims that he used to offer Friday
prayer (Jumma Namaz) but sometimes he offered all five
prayers in the day. He did not offer Namaz after 22/23
December, 1949 since idol was placed thereafter and the
mosque was closed for Namaz. The relevant part of the
examination-in-chief to this effect are:
ss r -- | -i - i| -l- - ni ii|
i|i| - -nl ni - i n | -i i| i| -l-
- | r | ..........zzzs l- ss i - ri -i r|
| r | i l ri n i li ni ii i -l- -i
l | n| i||
Prior to 1949, I used to offer Jummas Namaz in the
Babri mosque. Occasionally, I have offered five times
Namaz in Babri mosque on regular basis. ..... I did not
offer Namaz at that place after 22-23 December, 1949,
because idols had been installed there and the mosque had
been closed for Namaz." (E.T.C.)
2509. His year of birth comes to 1937 as he disclosed his
age 60 years in February, 1997 when his deposition
commenced.
2510. PW-9 has gone to the extent of stating that the
Namaz was offered in the disputed premises even after the
2491
alleged incident of 22/23 December, 1949 and on page 8 he
said:
r i r l ss zz,zs l- i ri i i|
ri ini -i i r| l - n i r| l n
- | - i i|| ( s)
"(I) remember that even after the incident of 22/23
December, 1949, people had offered namaz over there, but
I do not remember at present as to what was my age at that
time." (E.T.C)
2511. Though, he specifically remember about the date
and the time of his Namaz 50 years back but his memory is so
disturbed that his is not able to tell the age of his father at the
time of his death, the age of his sister or how much younger she
is or when his father actually died, as is also evident from page
11 and 12:
- i l i n ri r | - | i l nn| |
ni | i ni ni r , l r r| ni i + ni l
n | i - i | | ( )
"My father has expired. I can give the date of his
death, but I will not be able to tell as to what was his age
at that time." (E.T.C)
- ii|i i r | - | ii| n| sr i r r ; i|| . .
. . - | | ii| n -| - i zz z i | -
r| rin|| - | ii| nin i i i i i - il
ir i ;ni ri ni ii| - l r ni i i i |
- l r l - | r r l | i i | i l r i
r , - n l n| si -| r | l n - il ir i
;ni r i, ni - i ; i- r| ni ii| - n iln ri
i ii, -| - z/ i zs i | i|| z)
I am married. My marriage was solemnized about
35 years ago.. . . . . . . At time of my marriage, my age must
2492
have been around 22-24 years. My father had expired
about 4-5 years after my marriage. It will also be difficult
for me to tell as to how much younger my sister is to me,
reference of whose marriage has been made. When my
father died, I was jobless. At that time I had become major
and my age was nearly 27 or 28 years. (E.T.C)
2512. He has a mosque in his own premises, which,
according to him, is 200 years old but could not explain as to
why instead of offering Namaz in his own premises, he went
elsewhere for offering Namaz and that too a daily Namaz on
22
nd
December, 1949 particularly when the disputed building
was about one and half furlong from his residence. His
admission about a mosque in his own premises and distance
from his residence is on page 16 and 19:
i r-i| -l- ; rin - r r i | ; -i | r ,
i-ln| rn r i - i r i; i i i| r|
; -l- i i ; - n~| r| r| ; -l- i r| i;
n i- r| l-n|| ( c)
"My mosque within this campus, is made of 'Lakhairi'
bricks. It is called Alamgiri and in my opinion, it is about
250 years old. This mosque has no Mutwalli. This mosque
does not receive grant from anywhere." (E.T.C)
- -i liln ii i ii n| i n
ri ni| ( s)
The disputed property would be nearly one a half
furlongs away from my house. (E.T.C)
2513. On page 35, he said that for the first time he offered
Namaz in the disputed building probably during summer time
and it was Magrib Namaz. Then on page 37 he said that when
he went for the first time for offering Namaz in the disputed
2493
building, he was about 13 or 14 year old and when he offered
the last Friday Namaz in this building, he was 14 years of age
whereafter he could not offer Namaz therein since it was closed.
No namaz was allowed to be offered on 23
rd
December, 1949.
r nii n - -l r l - r| i - nili
;-in - -i | n lr | i i i -r|i ii
i l ; in i - n ri | r| - i -i - nii
i| - l r l -i ii r l -i - n-| i ri rini| . . .
. . . ii| l- i ni - n ; -l- - i -i
| in i r r i| n ri n l s| nr| i r|
r| ri n - n i r ii| i i r| -i - ;
-l- - | i| r -nl | i|| l i -i- nii
- -l r| r | ( sr)
It is difficult to tell which month of the Hizri
calendar was going on when I went to offer namaz at the
disputed structure for the first time, because a long time
has passed since then. In my opinion, it is also difficult to
tell the season but I guess that it would have been summer
season. . . . . . . I do remember having gone to this mosque
to offer namaz after attaining independence but I might
have gone even earlier but I do not properly remember in
this respect. As far as I remember, the first namaz that I
offered at this mosque after independence, was Magrib
namaz. But now it is not possible to tell its season.
(E.T.C)
- ; -l- - r| i -nl | -i ni ni
- | - ni s i | i|| r ili| -- | -i
- ; -l- - | ni - | - n| i i|| i |
-i i - ; -l- - -i r| i i l
li ni ii| . . . . .zs l- i ri -i r| |
n|| ( s/)
2494
When I went to offer Magrib namaz at this mosuqe
for the first time, I was perhaps aged 13-14 years. When I
offered Jumma namaz at this mosque for the last time I was
nearly 14 year old. After the namaz of that day, I could not
offer namaz at this mosque because it was closed. . . . . . .
Namaz was not allowed to be offered there on 23
rd
December. (E.T.C)
2514. The above statement would be interesting to see in
the light of the fact that he has disclosed his age as 60 years in
February, 1997 in accordance whereto his year of birth comes to
1937 and if he offered first Namaz in the disputed building at
the age of 13 even then it comes to 1950 though he admits that
after 23
rd
December, 1949 Namaz was not allowed to be offered
in the disputed building. This exercise shows the incorrectness
and unreliability of his statement about the last date of offering
Namaz as 22
nd
December, 1949. About his year of birth, he
himself has stated on page 43 and he tried to make some
improvement about his year of birth on page 48:
l - i i r l - ss/
ii i r i ii| ( s)
But I have heard from my mothers that I was born
in or around 1937. (E.T.C)
- | ii| n | - - r| ni ni
i l - n | i;i i - ni|i -r|i ;~- r| r |
- | i;i ss/ i i | r i l - r r i
r |( s)
I cannot tell my exact age at the time of my
marriage because I do not know the exact date, month and
year of my birth. I was born in or around 1937 as I have
already stated. (E.T.C)
2495
2515. Then we find that he also admits to have gone to
Gonda for education at the age of 8/9 where he stayed for three
years i.e. upto the age of 11/12.
- l n nii ni|- ril ni ni - | -
n| ss i | i|| - ri lr | ni|- n| i
l | i|| . . . . . - n| z i | - - ni i
| ni|- | i i ni ii| ( s)
When I went to Gonda to have schooling I was
nearly 8-9 year old. I had acquired schooling in 'Hifz'
there for three years. . . . . . . . I came back from Gonda
after completing my education at the age of about 11-12
years. (E.T.C)
2516. Taking his year of birth as 1937, we find it
extremely difficult to accept that when he was at Gonda, how
occasion came to offer Namaz in the disputed building at all
particularly when he claims that he offered Namaz in the
disputed building after independence 1947:
; i ni ii iin - -- | -i | r i r
s/ i | n| r| ( ro)
I have mostly offered Jumma namaz with these
persons and I have done so after 1947. (E.T.C)
2517. On page 36 he said that he went in the disputed
building about five or six days earlier to 22/23 December, 1949
for offering Namaz which was a Friday Namaz which again is a
contradiction:
- i ii r l zzzs l- ss ri rc i
r - ; -l- - -i ni ii| r -- | -i i||
( scs/)
I guess to have gone to offer namaz at this mosque
five-six days before the 22nd/23rd December, 1949
2496
incident. That was a 'Jumma namaz' (congregational
prayer of Friday). (E.T.C)
2518. PW-14 Jalil Ahmad son of Mohd. Yakub also
deposed about offering Namaz in the disputed building prior to
1949 i.e. before the placement of idol therein. He however
confined his claim of offering Namaz on Fridays only and said:
- ili| i ; -l- - -i ;- n i r --i
| i | | - -l- - ; ii -i i i | -i |
r|
My last Namaz in this mosque was the Jumma preceding
the installation of idol therein. I have offered both Isha &
Jumma Namaz in this mosque. (E.T.C.)
2519. PW-21 Dr. M. Hashim Qidwai S/o Abdul Mazid
Qidwai had the occasion of visiting Fyzabad between July 1939
to October 1941 when his father was posted thereat. He was a
student at Lucknow and used to visit Fyzabad in holidays during
the period of posting of his father. For the first time he claimed
to have visited Fyzabad in December, 1939. Regarding offering
of Namaz, he said:
l- ss - - li -i ii i| -l-
i ni i r| -nl | -i | i - i -;
n r s - -| - ii ini ri| ; ii - rzo
i -n| | -i i ii i l | -i i i n|
- | -i i| -l- - ||
In December, 1939 I had gone to see the Babri mosque
along with my family members and had offered the Magrib
Namaz there. Thereafter, in every holiday I regularly
visited Faizabad till the year 1941. In this period I offered
the Magrib Namaz for 15-20 times, the Asir Namaz for 4-5
times and 2-3 Jumma Namaz, in the Babri mosque.
2497
(E.T.C.)
2520. On page 16 however he said:
- r| i |n - - ss - -i i li|
I offered Namaz first time in October 1948 at Aligarh.
(E.T.C.)
2521. The witness had mentioned the factum about
offering Namaz since 1942 to 1948 almost six years with such
specification but when he was confronted that where was a
mosque near the residence of his father at Fyzabad and details
were asked he said :
ii - - ri r-i lni | rn i ii|
-l- r | - n ; - -l- i i- i r| r |
l r in co i i| r| (s)
In Faizabad cantt, there is a mosque just ahead of
the place where my father lived. At this moment, I do not
recollect the name of that mosque in as much as this matter
is 60 years old. (E.T.C.)
- -i i ini ii| -l- - - i -
or - | -i | i|| ( s)
I used to go to offer Namaz by car. As far as I
remember, I offered Namaz of Jumma(Friday prayers) 10
to 15 times in that mosque. (E.T.C.)
; - - n -l- i li i r| r ii n r -l-
ln| -| i| r | ( sz)
At this time, I do not recollect the area of the
mosque, that is, its length and breadth. (E.T.C.)
2522. He was in B.A. in Lucknow University during 1939-
41, however, he added further and on page 38-39 said:
- ii liln -i ni ni -i i|
2498
r- ini | i|| r-i r-i ii i| -l- -nl |
-i zs i n i | r-i r-i ii r| i
so | r| i | | i n i| ( ss)
When I went to disputed site, along with my father-
in-law, we offered Namaz there. My father-in-law, along
with me, had gone to Babari mosque twice or thrice to offer
Namaz of Magrib(prayer offer just after sunset). For the
first time, on 1
st
or 2
nd
January, 1940 my father-in-law,
along with me, went there. (E.T.C.)
r- in r| i i i i n i i -nl
i n ri ni ni -i li ii - ii ii i
-l- i ii i i r| ii| i i i i - i i r
i | i i l i - | ri i r i i i |
-l - i i i i i | ( ssss )
It was the time of Magrib( prayers offered just after
sunset) When we arrived at Ayodhya first time, we offered
Namaz, our main purpose was to see Ayodhya and mosque
both. The motive behind visiting Ayodhya was to see the
birth place of Ramchandra Ji as well as Babari
mosque. (E.T.C.)
2523. On page 41, he gave the exact date on which he
visited the disputed building for the first time which reads:
il ii i -i n| i i-i
ni ii| r| i - i | -l - l i l n i i -
ni i i ni z/ l - sss i l i i | ( )
It took nearly forty five minutes in reaching there
from my father's house at Faizabad. It was 27
th
December,
1939, when I visited first time the disputed Babari
mosque. (E.T.C.)
2524. On page 47 he says that on the first and second visit
2499
on the disputed building he saw everything inside and outside
which reads:
- liln i - r| i | i ni ni ri
| -l-i i ir ii ii| -l- n - i
i- i i ii i ri ii - i - oz i- r ri n ||
- ri l -l- - -, -ri i ii| i- - i -
-i i| |- - i r| i | i ; ii n - inl n
i | - n ; n n| i r| r ; n i | ii
-i i i| i i ii i i| n i | ; -ii s
ii| i|| ii l| ii i l r| l~ ii|
i|| r ii| - inl l-- | s -n| ii| i s
n| | i|| ( /)
When I went to the disputed building at first and
second time, I saw all the things inside and outside the
mosque. Inside the mosque there were a dome, pillars, and
a dalan or hall. As far as I remember, there would be 10-12
pillars. Stated that an arch & a member were built in the
mosque. As far as I remember, there were pillars of stone.
They were not made of cement and lime. The pillars were
of different colours. At this moment, I do not recollect in
detail about their colours, but they were of various colours.
One or two stones were of red colour and other one or two
of black colour. There were some engravings on these
stones. There was no painting of any living things but only
engraving on these pillars. Some flowers, leaves , Arayashi
and paintings of different colours were used in this
engraving. (E.T.C.)
2525. Then on page 54 he says:
i ri l - ;n i i- ri -i r|
i | ( r)
On his own stated that at that time pillars were not
2500
present there in such a large numbers. (E.T.C.)
2526. He gave further particulars of his first time visit the
disputed building on 27
th
December, 1939 on page 61-62:
- r| i liln i - | l-| ii ni
ii ni - -nl | -i ri i | i|| - r| i z/ l-
sss - ni ii| r-i ii r-i l-| -- i| -i
i | i| li - | l l-- | r- r| i liln
-i n i ni -| ni| liln i i |
i| l ri l n- | i i| i|| l ri l |
i | i|| ( ccz)
When I, along with my family, went to the disputed
building at first time, I offered Namaz there just after
sunset (Namaz of Magrib). I went there first time on
December 27, 1939. Also, the other members of my family
except my cousin sister offered Namaz, along with me.
When I went to the disputed site at first time, my vehicle
was parked on the eastern road of the disputed building.
Then stated that the vehicle was parked at the eastern gate.
Then stated that it was parked on the eastern road.
(E.T.C.)
2527. His residence at Fyzabad Cantt. was about 5-6 miles
from the disputed building. Subsequently at page 68 said:
- | iin -i ii r| li| ( cs)
But my memory failed me. (E.T.C.)
2528. He also made corrections in his earlier statement
about the topography of the building and on page 73 said:
- i - i i i ni - n i
i i l r r| r| r i i -n - ri n -i
| i i -| i i i | l z l- i i r| - n -ii
l-i ;l ; n~n| i -n l r r| ri|
1
2501
( /s)
Later on when I read my statement, I realized
that it was not correct and in fact there was a partition
by window shaped wall. Since I got opportunity just today
after December 12, I could not say earlier to rectify this
mistake. (E.T.C.)
2529. According to him he did not visit Fyzabad or
Ayodhya after May, 1941.
-; i - i i i i i i i i
r| r i | ( so)
After May 41, I had no occasion to visit Faizabad
and Ayodhya. (E.T.C.)
2530. PW-23 Mohd. Kasim Ansari also said to have
offered Namaz in the building for about 8-9 years before its
attachment in 1949 and last Namaz on 22
nd
December, 1949. He
says:
ii| -n i ri - ss, zz l- i -i | i||
I last offered Namaz over there on 22 December, 1949.
(E.T.C.)
2531. PW-23 is real brother of Mohd. Hashim i.e. PW-1.
This he has stated and admitted on page 3 of the statement.
Some part of his cross-examination may be noticed herein
below to consider the reliability of his statement:
r -| r l zz l- s liln -i
s | nini il in i, --i nni ii l- iiii il
i| rini ii| . . . . . i - ; i i | -i i i n
| i | | . . . . . - -i -l- - i
ni ii i l i i i - ii ii| - - -l- -
nin iii i -i n ri ii| ( r)
It is true that prior to 22
nd
December, 1949, leaders
etc. used to visit upto a short distance of the disputed site,
2502
and gathering used to take place in which speech etc. were
also given. . . . . . . . . .. . . . On that day, I had offered the
Isha namaz at 7.15 PM. . . . . . . . . . . I had gone from my
house to that mosque to offer namaz and had returned
thereafter. I remained in the mosque for about half an
hour. (E.T.C)
- r| -n i liln i - -i ni ni -|
- z i i|| ( s)
When I, for the first time, went to offer namaz at the
disputed structure, I was aged 12 years. (E.T.C.)
liln -l - zz l-, ss i ;ii | -i ii-
| /.so i | i|| . . . . . . ;ii | -i - - ii
ln i i i n iil- i , ;| lnn| i r| r, r|
- lni ii| -ili | lnn| | i ; ii r r| i|,
l~ - - ri n ri | r -i ~|
i - i i | ( ror)
I offered Isha namaz at the disputed site on 22
nd
December, 1949 at around 7:30 PM. . . . . . . . . As regards
how many and which persons participated with me in the
Isha namaz, I now do not remember their number nor did
I count them. There was no particular reason for not
counting the strength of namazists; as a matter of fact, I
hurried back home after offering namaz, due to fear in
mind. (E.T.C.)
- ili| ;ii | -i liln ;-in - ni ii
n i - i i i | . . . . . zz l- ss i i |
n; ;ii | -i - - i i ri -n ~i r i | i | i |
( rrz)
"Farooq was with me when I had gone to offer Isha
namaz at the disputed structure for the last time. . . . . . . . . .
. I was also accompanied by Hashmat Ullah at the Isha
2503
namaz offered on 22
nd
December, 1949." (E.T.C.)
Note:This statement is not corroborated by these two
persons Farooq (PW-3) and Hashmat Ullah (PW-7).
2532. PW-3 on page 23 said:
"zz l-, ss | ; ii | -i - r-i ir i
ir - ii i | ( zs)"
"Rahman Saheb and Unus Saheb were with me at the
Isha namaz on 22
nd
December, 1949." (E.T.C.)
PW-3 therefore, did not corroborate the statement of
PW-23.
2533. PW-7 Hashmat Ullah on page 60 said :
r- -l- - n i i ii rii z l r -
ii| i -i ||
"I had for the last time offered namaz at the mosque
two days before the incident in which the idol was placed
there." (E.T.C.)
Then on page 77, P.W.-7 categorically said:
zz l-,ss i - ; -l- - -i r| | i||
"I did not offer namaz at this mosque on 22
nd
December,
1949." (E.T.C.)
He (PW-7) at page 77 also denied offering of Namaz
on 21.12.1949.
z lo ss i i| - ri -i r| | i||
"I did not offer namaz there on 22
nd
December, 1949 as
well." (E.T.C.)
2534. PW-23 further said:
- r r| ni i+ ni l s - | ri r -
l ili| - - liln -i -i ni| r -| r
l | r - - | -i | i| l r i | ni|i
i| i r i i -i ii r i| r| ni i+ ni ;ni
i r l l -r| - | r ; i| - i i i r
2504
- ri - | -i | i|| ( rcr/)
Now I am not in a position to tell on which Friday,
prior to the 1949 attachment, I had started offering namaz
at the disputed site. It is true that I had offered Friday
namaz before the attachment but I am not in a position to
tell what the date was and which Friday it was. However, I
certainly remember that I had earlier offered Friday namaz
there once or twice in the month the attachment had taken
place.(E.T.C.)
r| i liln i - - i | -i i l
- | i| r r| ni i+ ni| i - - - ri i i|
ii ni ii i ri ni ni -i i ni| . . . .
. . . - | -i - liln i i iin - | i|| . .
. . . . - ii - -in ri -i ini ii ni
ri i i sr ii in ri n i - i ; lnn| r| ln|
i orzo rn i i i| i| ii i| ri in i|
ii n i ri in i| ( rscz)
I am not is a position to tell as to which namaz I
offered at the disputed structure first of all and at what
time. In the beginning, in my childhood, I used to go to play
there but when I grew up I started going there to offer
namaz. . . . . . . . . . . I had offered the Friday namaz in the
inner part of the disputed structure. Besides on Fridays,
whenever I lined up to offer namaz there used to be more
than two or four or six people. I did not count their
number. I guess their number to have been 10-15-20 and
sometimes their number grew even greater, that is, up to
fifty. (E.T.C.)
liln i - - ni| | -i i| | r | - r r|
ni i+ ni l - -ii~i | - - ni| | -i | i|| ni|
| -i -i i| -r| - | in| r| r- i -i
2505
ni| | | i| - i r l - i-- | n| i| ril
-i i r i i i r i i i- i ii - r i| r|
ni i+ ni| . . . . . . - i i - i ; ril i r| r| |
( csc/)
I have also offered Taravi namaz at the disputed
structure. I am not in a position to tell at what age I offered
Taravi namaz. Taravi namaz is offered in the holy month of
Ramzan. In the Taravi namaz which I had read, we were
through the Quran in 15 days. Hafiz was teaching namaz
but I am also not in a position to tell the name of the person
who was teaching it. . . . . . . . . There was no Hafiz at all in
Ayodhya at that time.(E.T.C.)
2535. PW-25 Sibtey Mohd. Nadvi himself has not
claimed to have offered Namaz in the disputed building but
says that he had been visiting Ayodhya in 1948 and thereafter
and had seen people going to Babri Maszid for offering Namaz.
His statement reads as under:
ss r| - -il i i -i l i| -l- in
ii r| -i n r| i i |. . . . . - i i r l
ss r i| i| -l- - -i r i n| i||
Since 1948 I have seen Namazists going to Babri mosque
to offer Namaz. I had not seen them offer Namaz. ....I
have heard that Namaz was offered in Babri mosque even
before year 1948. (E.T.C.)
2536. The statement of PW-25 about offering of Namaz in
the disputed building prior to 1948 is purely hearsay hence
inadmissible. He is not personally aware of the same. His visit
to Ayodhya was in election canvessing during which he roamed
various localities at Ayodhya for about 4-6 days
; i i ll - - i s l ii i -i ii| . .
. . .- i i ii ii - -ri ni ii| (
2506
s)
"I had travelled in Ayodhya for four six days in
connection with the said election campaign. .. . . . .. During
the election campaign, I used to stay at Faizabad.
(E.T.C.)
2537. However, he did not visit any mosque during the
said period.
ss - i i i i r - n ; in |
ii| i| l liln i ii i| i i - li -l-
r| - li -l-i - l| - r| ni| ( r)
"Before proceeding for election of 1948, I knew that
apart from the disputed structure there were tens of
mosques in Ayodhya. I did not visit any of the tens of
mosques." (E.T.C.)
2538. He claims to have visited Ayodhya once or twice
after the election campaign of 1948 but did not offer Namaz in
any mosque.
i i i ss - i i l i i ni ii|
- i i - i | i | l | -l - -i i r|
| | ( r)
After the election campaign, I again visited
Ayodhya on couple of occasions in 1948. I never offered
Namaz in any mosque in Ayodhya. (E.T.C.)
2539. He, however, says that during election campaign
Makbool Ahmad and Mukhtar Ahmad Kidwai went to offer
Namaz and PW-25 stayed back in the vehicle. On page 16,
however, he says:
- l i l n -l - - - i i n
l | i r| i i | ( c)
I did not see anybody entering the disputed mosque
through the main gate. (E.T .C.)
2507
2540. Though he is well educated but did not give date of
birth mentioned in his certificates and said that his real date of
birth is 22
nd
September, 1926:
- n i r| r l -i i i - - | -l nl i i r |
n - | | -l nl i zz l n- szc r | ( s)
I do not remember what is my date of birth in the
certificates. But my actual date of birth is 22
nd
September, 1926. (E.T.C.)
2541. When asked as to whether he was present when
Makbool Ahmad and Mukhtar Ahmad Kidwai went to offer
Namaz, on page 50-51 he said:
;ni lln l ri - ii -i ii r -ii liln
i lsi ii| ( ror)
It is definite that the place where I stood and sat,
was on the back side of the disputed building. (E.T.C.)
2542. This itself shows that with respect to Namaz in the
disputed building, the witness has no personal knowledge and
everything is hearse. Hence, on this aspect, his evidence is
inadmissible.
2543. On behalf of plaintiff (Suit-3) i.e. defendant No.3
(Suit-4) number of witnesses have been produced to assert in
general that they never saw any Muslim visiting the disputed
place or offering Namaz therein. DW 2/1-2 Ram Saran
Srivastava, who was posted as a District Magistrate, Fyzabad in
July, 1987 and remained there for about three and a half years,
in para 23 of his affidavit said that according to his studies and
information, Namaz had not been offered in the disputed
premises inside the disputed building since after 1934 and the
same has not been used by Muslim community collectively or
individually to offer Namaz. DW 2/1-2 appears to have born
sometimes in 1937, his age being 68 years as per his affidavit
2508
dated 20
th
January, 2005, the statement in the affidavit obviously
is based on personal knowledge of the witnesses, therefore,
hearse for this purpose and to this extent is inadmissible in
evidence. However, since he had an occasion to remain in an
official capacity at Faizabad and, therefore, could have an
opportunity to go through the official records also. An extract of
his statement which throw some light on the position as to how
and what manner, Namaz, if any, was offered in the disputed
building or not, we may refer the following extract from pages
158 and 175:
DW-2/1-2, Sri Ram Saran Srivastava
r l i - zs. z. s | r | ; li - - liln i
lin li zz.z.s zs.z.ss | l-iln i ~ i r|
; l i - - z | i | ni i | l n - r
l i i r i r l ni i - i -r i n| i -
l i i i i ni r i ;| i i -l - | i ;
n r i - | -i ri n| r | n - r lii
r i r l i i| -i r nii - -i i n - | -i
l ii i n | -i - i r ri | ;- i
li zs.z.s l ri ni r | ( rs)
This report is of 23.12.1949. This report makes
mention of the position of the disputed building as on
22.12.1949 and 23.12.1949. In the fifth and ninth lines
on page 2 of this report it is written that the lock is
opened only for two to three hours on the day of 'Zuma'
and during this period cleaning etc. of the mosque is
done and the Zuma Namaj (congregational prayer of
Friday) is performed. It is written on the next page that it
is also Friday today and Muslims will certainly come from
Faizabad to offer congregational prayer of Friday. It
cannot be said what will happen. Its 'today' stands for
2509
23.12.1949. (E.T.C)
r r| r l in ri l-| l- ii
,ii l n r |
i n - s | n| | ni i
i i | l ni - r l i i r i r l -l - i i
| -i i i - i si i i l i -
l i - rn| r | ( /r)
It is true that the afore said correspondence has
been done by Deputy Commissioner Faizabad.
In third and fourth lines on page 3 of the afore-
said Annexure-A, it is written that the mosque wears a
deserted look, except for one hour during which
congregational prayer of Friday is offered. (E.T.C)
2544. To the same effect is the statement of DW 2/1-3 as
per para 17 of his affidavit, though he was not even born in
1934, his year of birth being 1944 (he gave his age as 51 years
in affidavit dated 16
th
February, 2005).
2545. DW 3/1 to DW 3/20 in general have denied user of
disputed building as mosque by Muslims and offering of Namaz
in the disputed building but their statement is confined to the
fact that they did not see any Muslim visiting the disputed place
or offering Namaz. The statements in this regard are extremely
vague and throw no light on the specific question as to whether
Friday prayer on 16
th
December, 1949 or 5 times prayer on 22
nd
December, 1949 were offered by any Muslims in the disputed
premises or not.
2546. For the purpose of issues in hand regarding
limitation under Article 142 L.A. 1908, the question is whether
last prayer in the disputed building was offered on 16
th
December, 1949 or 22
nd
December, 1949. In our view, none of
these witnesses could have thrown any light on this aspect. The
2510
other witnesses produced are basically such who either have
deposed about the belief and faith of birth of lord Rama at the
disputed place, and/or the existence of temple, and that they and
other had been visiting the disputed site and building for
worship believing that it was the place of birth of lord Rama.
Some of the witnesses are in the category of Expert Historian,
Archeologist etc.
2547. Most of the witness have sought to give statement in
respect to the events took place more than four and a half
decades ago and even more than that. Most of them have also
ultimately admitted of their weak memory. On one hand they
were very precise to give the date, period and day when they
visited the premises in dispute for offering namaz such long
back but at the end of the day most of them admitted of their
weak memory. Their statements are so contradictory also that
erode the degree of trustworthiness thereof. In State of Bihar
Vs. Sri Radha Krishna (supra) the Apex Court said;
"208. Indeed, as a mortal man is not infalliable so is
human memory. It records facts and events seen with some
amount of precision and accuracy, but with the lapse or
distance of time, unless the facts or events are noted or
recorded in writing, the facts or events fade, sequences get
lost, consistency gives way to inconsistency, realities yield
to imagination, coherence slowly disappears, memory
starts becoming blurred, confusion becomes worse
confounded, rememberance is substituted by forgetfulness
resulting in an erosion of facts recorded by the memory
earlier. This equally applies to facts merely heard by one
from some other person. Thus, if a person having only
heard certain facts or events repeats them after a long time
2511
with mathematical precision or adroit accuracy, it is
unnatural and unbelievable and smacks of concoction and
fabrication being against normal human conduct, unless he
repeats some special or strikingly unusual incident of life
which one can never forget or where a person is reminded
of some conspicuous fact on the happening of a particular
contingency which lights up the past such as marriage,
death, divorce, accident disappointment, failure, wars,
famine, earthquake, pestilence, (personally affecting the
subject and the like) etc., and revives the memory in respect
of the aforesaid incidents. Of course, if the person happens
to be an inimitable genius or an intellectual giant
possessing a very sharp and shocking memory, the matter
may be different. But, such persons are not born every day.
To say, in this case, that all the witness one after the other,
were geniuses is to tell the impossible. Weakness and
uncertainty of human memory is the rule. The witnesses of
the plaintiffs examined in this case are normal human
beings suffering from the usual defects and drawbacks of a
common man."
"209. Describing the vagaries of human memory, Ugo Betti
so aptly and correctly observes:
"Memories are like stones, time and distance erode
them like acid."
(p. 395, The International Theasaurus of Quotations:
Rhoda Thomas Tripp)"
210. . . . . :
"How strange are the tricks of memory, which, often
hazy as a dream about the most important events of a
man's life, religiously preserve the merest trifles."
2512
"211. Similarly, Baltasar Gracian in 'The Art of Worldly
Wisdom' very aptly puts the frailties of human memory
thus:
"The things we remember best are those better
forgotten."
"219. .....there is a tendency on the part of the villagers to
support a case of this kind by overstating their age so as to
introduce an element of personal knowledge in order to
prove old genealogies. On the other hand, the Pleader-
Commissioner, who recorded the evidence being a lawyer
and an educated person, would be in a much better
position to estimate the correct age of the witness.
However, nothing much turns on this discrepancy and we
shall presume that in view of the very old age of the
witness, his evidence merits serious consideration. There is
no doubt that this witness was closely connected with the
family of Bhagwati Prasad Singh, father of the Plaintiff
Radha Kirshan Singh as he has admitted to. have scribed
many documents on behalf of the family of Bhagwati
Prasad Singh. Mukherji, J. also found that the witness was
intimately connected with the family of Bhagwati Prasad
Singh as this witness and his ancestors have scribed
numerous documents for different members of the family
and on this ground the learned Judge thought that he
would be a more competent witness to depose about the
genealogy than any other witness. Assuming what
Mukherji, J. says is correct, the fact remains that being
intimately connected with the family of the plaintiffs the
witness cannot be said to be an independent one and he
was deeply interested in the success of their case.
2513
Therefore, while this may not be a sole ground for rejecting
his testimony his evidence has to be taken with great care
and caution particularly when he is not deposing as an eye-
witness but as a witness to the genealogy which he may
have heard from his ancestors."
"226. Indeed, of this is the primordial and rudimentary
reflex of his memory, then it is strongest possible
circumstance to discredit his testimony and it leads to an
irresistible inference that the story of repeated narration of
the plaintiffs' genealogy is nothing but a pure figment of his
imagination concocted to help and oblige his relation,
friend, philosopher and guide (Bhagwati Prasad
Singh). . . . . How can it be believed that if he could not
even remembe r the names of his own near relations, he
would remember the names in genealogies running into 12
degrees. . . . . we entirely agree with the conclusion of the
dissenting Judge that it is impossible to place any reliance
on the evidence of this witness."
"233. . . . . This important circumstance shows that his
memory is very weak, in which case it is well-high
impossible to believe that he would remember the
genealogy narrated to him by his grand uncle though he
could not give the names of the persons in whose presence
the genealogy was narrated to him. He does not appear to
have made any note of the genealogy on any paper when
his grand uncle repeated the same, nor has he mentioned
any particular occasion on which the genealogy was
narrated to him . . . . Moreover, human memory, faint and
vulnerable as it is not likely to reflect facts of 40-50 years
back unless there is something in the shape of a particular
2514
document, mode, occasion or something to remind him."
"234. ....his evidence is inadmissible under Section 35 of
the Evidence Act on a point of law, viz., being hit by the
doctrine of post litem motam. . . . . He relates the facts of
the battle of Marui which took place as far back as 1719."
"239. . . . . It is not understandable how he could remember
the genealogy narrated to him long before if he could not
remember the facts which were directly within his personal
knowledge, viz., either the year of his marriage or of the
death of his mother. Another person from whom the witness
is said to have acquired knowledge of the genealogy is,
according to him, Vashist Singh. He admits that he does
not remember the time, year or even the occasion for
hearing the genealogy from Vashist Singh nor does he
remember how many other persons were present when
Vashist Singh narrated the genealogy."
"243. Having regard, therefore, to the glaring
inconsistencies arid discrepancies in his statement, the
shortcomings of his memory which has been
demonstratively shown by his subsequent statements as
referred to above, it seems that his evidence regarding the
narration of the genealogy by various persons is nothing
but a cock and bull story."
"244. . . . His evidence also, therefore, us a rule of
prudence has to be examined with great care and caution
because he is interested in making statements which may
go to support his case."
"247. . . . he has been asked to depose parrot like just to
support his case. .. . . and gives a most feeble and
unconvincing explanation that the omission was due to the
2515
fact that Ramruch Singh had gone away to Baraini."
"248. . . . .In this view of the matter, his statement is most
unnatural and improbable and even if believed it does not
prove the vital missing links."
2548. The stand taken by the Government authorities in
their written statement filed in Suit-1 is that due to law and
order situation the inner courtyard premises used to remain
under lock and opened only for 2-3 hours on Fridays enabling
Muslims to offer prayer thereat. No witness, however, has been
produced on behalf of the State authorities.
2549. The evidence produced by the plaintiffs (Suit-4) is
not creditworthy so as to believe what they have said. There is a
report of Waqf Inspector of 10
th
December 1949 (Exhibit A-63
(Suit-1) (Register 8, page 523-527) wherein he has said:

26














2516















"Copy of the report Mr. Mohammad Ibrahim Saheb waqf...
(sic)..... dated 10-12-1949 with regard to Babri Masjid
included in the file 26 U.C. Babri, Faizabad. Masjid Babri
Ayodhya. To the secretary. The previous Mutawalli of
Masjid Babri, respectively Mir Asghar Saheb, Mohammad
Razi Saheb, Mohd Zaki Saheb and Kalbe Husain Naqvi ...
(sic)..... have expired therefore there arises the question of
the successor Mutawalli Rs. ... (sic)..... for the aforesaid
Masjid which is a waqf. It is an old tradition that the
Mutawalli of the Waqf Masjid will be ... (sic)..... the
Numberdar of Mauza Sahanwa. As such the same tradition
is still alive and the Numberdar of Sahanwa becomes the
Mutawalli of the Masjid. From inquiries in the Mauza it
was revealed that the present Numberdar of Sahanwa ...
(sic)..... is Mr. Jawad Husain and he does Tahsil Wasool
2517
and Manages the affairs of the Masjid. Syed Anjar Husain
Saheb Bakhiya Mauza Narhwan stated that the present
Numberdar Jawad Husain who does all the work of Tehsil
wasool and is the Mutawalli of the said Masjid. The
statement of Jawad Husain was recorded where in he
stated that he was the Numberdar and also the Mutawalli.
He further stated that he would work sincerely and
honestly. I will not even touch imbezzle a single paisa of
the Masjid and shall keep proper accounts. I will follow
every instruction of the waqf Board. Under these
conditions it seem proper that the name of Mr. Jawad
Husain may be proposed and accepted as Mutawalli. 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
stay 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 . Sd/- Mr. Mohd. Ibrahim...
(sic)......"
2550. There is another report dated 23.12.1949 also
(Exhibit A-64 (Suit-1) (Register 8, page 529-535) which says:

2518






























2519
















"Copy of the report of Ibrahim Saheb Abul Bakra
dated 23-12-1949 included in the waqf file no. 26 waqf
Babri Masjid district Faizabad. The present condition of
Babri Majid. To the secretary, on December 22, 1949 I
visited Ayodhya to inquire into certain affairs of the Masjid
Babri and Qabristan. It revealed the following facts: About
3 months back ...(sic).... a word was around that there
should be organized path of Ramayan in the Babri Janam
Sthan After Baba Raghudas went back, for about a month
back big number of Hindus, Pujaris and Pandits collected.
The path continued for weeks. During this period the
Bairagis damaged and levelled the land before the Masjid
and Qabristan in south ward, they pitched a Jhandi over
there and placed stones on certain graves. Sufficient police
2520
force was posted at the time of Ramayan Path, even the
certain graves were demolished. The police arrested four
persons who were later bailed out The Mazar of Khwaja
Shabhi which is situated near the Qabristan, has been
demolished and a Bairagi has erected Bairagi Jhanda. On
the door of the lawn of the Majid there was a pucca grave
which has been levelled and the Bairagis are sitting there
placing stones. Near the well of the Masjid a Bairagi is
living under a thatched roof. Before the path was held, the
earthen pot and lota of the masjid was broken. The
Moazzin was beaten up. They tried to dig the wall of the
Masjid Two Muslim pilgrims were beaten up and as such
they received serious injuries. Now there are two tents
outside the Masjid. One of them is occupied by ...(sic)....
police constable. In one of the other tents, constables of
Batallion are living. They would be 8 to 9 in number. Now
the door of the Masjid remains locked. That is to say that
except for Fridays. There held no Namaz or Azaan. The
keys of the Masjid are with the Muslims, but the police
does not allow to open the lock, which is opened only on
Friday for 3-4 hours. During this period dusting of the
place is done and then Namaz is held. After this is over,
the Masjid is again locked. During Friday prayer the
Bairagis make hue and cry. When the Namazis pass
through the stairs, shoes and rubbish is thrown on them
from the adjourning houses. The Muslims are so scared
that they do not protest. After Raghu Das Mr. Lohia also
visited Ayodhya and delivered a lecture in which he urged
the people to grow flower trees in place of graves. After
that some officer from lucknow visited this place. The
2521
Bairagis told him that the Masjid was the Janam Sthan
which should be handed over to them. He warned them
against any violence. On this, Bairagis became angry with
him, so he returned back to Faizabad with police escorte.
Meanwhile Kanak Bhawan Ayodhya ...(sic).... Mahant ...
(sic).... Raghubir, Vedanti ...(sic).... Deo Narain Darsi,
Acharyaji Ashrmi ...(sic).... Bhawan invited Muslims for a
talk. But no Muslim except for Zahoor Ahmad, turned up.
The Hindus told him that the Masjid should be handed over
to them. Then they will be treated as brothers otherwise
enemies. I did not go to Ayodhya in the night. In the
morning I came to know that Bairagis are trying to take
possession of the Masjid forcefully. Today is Friday I
visited the place to see that 10-15 Bairagis armed with ...
(sic).... and phaora ...(sic).... were collected in the lawn of
the Masjid. Many of the Bairagis were collected outside the
door of the Masjid. ...(sic).... City Magistrate Kotwal city
and police force are posted there. What will happen to the
Muslims who would come here for Friday prayers. Now I
am proceeding to Lakar Mandi, Gonda....(sic)...."
2551. This also show that regular prayers could not have
been held in the property in dispute. The overall situation,
evidence etc. however, show that on some days, atleast weekly
prayer on Friday held in the premises in dispute, and, at least, so
far as 16
th
December, 1949 is concerned, it appears that on that
date, Friday prayer was actually held in the inner courtyard but
not thereafter.
2552. DW 2/1-2 Ram Saran Srivastava has stated on the
basis of the official record that the premises of inner courtyard
kept in lock and allowed to be opened only on Friday for Jumma
2522
namaz for about 2-3 hours during which period cleaning and
namaz used to be accomplished. This is also fortified from the
document exhibit A-64 (Suit-1), which is a report of the Waqf
Inspector. The other documents, which we have earlier referred
to, also show that occasionally on certain days Adhan (ajjan)
was called in the disputed building. On the contrary, no reliable
evidence could be placed by the defendants that no Muslim ever
entered building in dispute i.e. inner courtyard from 1934 or
earlier till the night of 22
nd
/23
rd
December 1949. Therefore,
while the visit of Hindu public in the inner courtyard and
worship during the entire period has been proved,
simultaneously it also cannot be said that the Muslims could
never enter the disputed building for offering namaz at any point
of time since 1934 and onwards.
2553. We, therefore, are inclined to believe that on 16
th
December, 1949, Friday prayer was held in the inner courtyard
i.e. in the disputed building but the claim of the muslims that
daily prayers used to be held therein cannot be believed. To this
extent, Muslim parties have failed to prove. This does not mean
that the entire premises in dispute shown by the letters 'ABCD'
in the map appended with the plaint (Suit-4) was in the
possession of the plaintiffs but it is only the inner Courtyard
which remained open for all.
2554. The entire evidence however do not touch upon the
area covered by the outer courtyard except of suggesting that
only for entering inner Courtyard, right of passage was utilised
and nothing more than that. It is evident that the plaintiffs were
never in possession thereof. In the outer courtyard on the south-
east side there was a Ram Chabootara which was in possession
of persons other than plaintiffs and this has continued at least
2523
from earlier to 1885 as is evident from the plaint where
reference has been given to suit 1885 and the decision of the
Court recognising existence of the said Chabootara in outer
courtyard. On the north-west side, there is Sita Rasoi/Kaushalya
Rasoi which is also being worshipped by Hindus continuously.
2555. At the best it may be said that the plaintiffs or other
muslims were exercising right of egress and ingress for offering
prayer in the respective part of the disputed building but
otherwise in respect to the area covered by outer courtyard there
is no averment in the entire suit that it was ever in the exclusive
possession of the plaintiffs. It is not the case of the plaintiffs that
they were dispossessed from the said part of the land at any
point of time within preceding six years or 12 years from the
date of filing of the suit. The possession of the area covered by
Ram Chabutara and Sita Rasoi in outer courtyard, it appears, the
plaintiffs have reconciled that it had been in possession of
Hindus since long and, therefore, in respect to this part, we are
of the view that Suit-4 is barred by limitation.
2556. The written statement of Mohd. Asgar para 3 and 4
filed in Suit-1885 makes it clear that Chabutara was constructed
in the outer courtyard in 1857 and it was never interfered or
obstructed by muslims at any point of time. After the
enforcement of L.A. 1859, the period of limitation, in such a
case, was 12 years and therefore, in 1869 limitation expired for
claiming possession of the said part of the land.
2557. In 1885 suit, the map prepared by the Court Amin
shows three non Islamic structures in the outer courtyard and
against that no action, as permissible in law, was taken by the
Muslims or the said Mutawalli. Assuming that the ownership lie
elsewhere, after expiry of a period of 12 years, the title extinct
2524
by virtue of Section 27 of the Limitation Act, 1877 and
therefore, even before the enactment of L.A.1908, the right, if
any, possessed by the plaintiffs or anyone else in respect to the
premises in outer courtyard extinct and stood conferred upon the
persons who were in possession thereof.
2558. So far as the inner courtyard is concerned, we have
already held that atleast on Friday, if not regularly, then
occasionally, muslims had visited disputed building and that
visit obviously could be for offering namaz. The official
documents, proved by the defendants witness DW 2/1-2 Sri
Ram Saran Srivastava show that Friday namaz used to be
observed therein. OPW-9 has also admitted that both
communities used to worship in the inner courtyard. We find no
reason to disbelieve it. But here is not a case of exclusive
possession since the defendant Hindu parties and Hindus in
general had also been visiting inner courtyard for darshan and
worship according to their faith and belief, hence, it can be said
that the inner courtyard was virtually used jointly by the
members of both the communities, may be to a large extent by
the Hindus since Ayodhya is one of the most prominent, sacred
and reverend place for Hindus, being the city of Lord Rama, and
the place in dispute, they believe to be the birthplace of Lord
Rama, it cannot be doubted that must have been visited in a very
large number everyday, swollen multi-fold on special occasions
of fares that is Ramnavami etc. The importance of Ayodhya
from the point of view of Hindus has fairly been accepted and
admitted by many of the witnesses of even the plaintiffs (Suit-4)
i.e. muslims parties though same thing is not applicable for
others. If Hindu people were already visiting the inner courtyard
and the disputed building for worship etc., we do not find any
2525
occasion of dispossession of muslims from the premises in
dispute or discontinuation of possession as a result whereof
somebody else has taken possession in order to attract Art. 142.
The only thing which is claimed to have occurred on 22/23
December, 1949, is the placement of idol which according to
OPW 1 and some other witnesses is mere shifting of idols of Sri
Ram Chandra from the outer courtyard (Ram Chabutara) to
inner courtyard. This placement of idol by itself cannot be
termed as dispossession of muslims from the inner courtyard or
the disputed building in the light of the meaning of
'dispossession' as we have discussed above. This is also not
covered by the phrase "discontinuation of possession". It is
probably for this reason that in the entire plaint there is not even
a whisper that the muslim parties or the muslims or the plaintiffs
were dispossessed or discontinued of possession by anyone on
any particular date. The averments are different. Most of the
witnesses have admitted that since the idols were kept inside the
building, the did not went to the disputed building on and after
23 December, 1949. In this view of the matter we do not find
that Art. 142 even has any application in this case.
2559. There is another aspect of the matter from which
angle this argument may be seen. Suit has been filed for a
declaration in respect to the entire area of the disputed building
which included inner courtyard as well as outer courtyard. For
the purpose of cause of action, the placement of idols in the
mosque on 23
rd
December, 1949 has been pleaded in para 23 of
the plaint. Sri Mohd. Ayub, counsel for plaintiffs (Suit-4), who
had appeared before the Civil Judge, Fyzabad made statement
under Order X, Rule 2 on 28
th
August 1963 and said:
"Sri Mohd. Ayub states that the mosque lie in A B C D as
2526
shown in the plaint map (sketch map) and the land around
A B C D is graveyard of the Muslims as shown in it."
2560. He again made another statement on 20
th
January,
1964 to the following effect:
"The property in dispute includes Babri Masjid and
appurtenant to its boundary graveyard towards east, north
and south .... On the outer side of railing of Babri Masjid
and inside the boundary of main gate towards east-south,
there is a Chabutara measuring 17 x 21 feet over which a
wooden temple of wooden structure is built. In it, neither
there were any idols of Hindus in past nor are till now.
That place is also a part of mosque of Muslims. He does
not know that the place had ever been any use of Hindus or
not. It is also not known that the place had ever been in use
of Muslims or not. ...."
2561. Therefore, plaintiffs admitted the existence of a
Chabutara measuring 21 x 17 feet in the outer courtyard, which
has a wooden temple structure thereon. This is also admitted by
PW-1 on page 24. Infact it is said in the plaint also. Its
existence, as referred to, was the subject matter of suit 1885
meaning thereby the said Chabutara was existing at least since
1885 and always in the outer courtyard of the disputed building.
Besides, in the north of the disputed building, there existed Sita
Rasoi/Kaushalya Rasoi and on the east-north side, in the outer
courtyard, there was a Chappar which is also called Bhandar.
2562. About the above three structures, statement of
various witnesses of plaintiffs (Suit-4) are:
(a) PW-1 (Mohd. Hashim)
ir| i lii | n i ni r r / x z
l- r | ;| + i; -|- r | ; + s i r| . . .
. . . . ; n lr nii | -ln i ii i lii| r|
2527
n|| ( z)
"Towards the south of the outside gate in the east lies a
chabutra measuring 17x24 feet. Its height is 1 metre. It has
a thatched roofing. . . . . . . . Idols of Hindu deities on this
chabutra are not visible to visitors. (E.T.C.)
i r - ri ii i| n -n i r nn r
ri s i n -n i i r in r| r r i- i-| lr i
i| i ii r| i i n i i r| i| ( z/)
My earlier statement that priests used to sit on the
chabutra, is wrong. Some people used to sit there, and this
fact is true. These ordinary people were Hindus, but not
priests or saints.(E.T.C.)
ss - |nii ; i i i| |nii ; ~ri
i| i ni i i ii i ss - | . . . . . . .i - r-
i n i| i | in i - i ; ni r| ii| |
i- i n |ni i ; rn i| r- r r| ii l i- in i|ni
i ; i i in i| ( z/)
In 1949, Sita Rasoi was on a level with the floor.
The 'chulha' (hearth), 'chauki' and 'belna' (rolling pin) at
Sita Rasoi, was made of lime and brick powder in the year
1949. . . . . . . . In the beginning, we also looked at it from a
close range. There was no tension at that time. People in
general called it Sita Rasoi. We did not see general public
going to have darshan of Sita Rasoi. (E.T.C.)
| i- i ir| |i -n
n -i i s ii r ii ii i r| r r| ni
ni| . . . . . ; s | lr i n rn i - -i i n
r| rn i | . . . . i i ii | ir| |i i
s i ni ii i i | |i - |-
| ii|( ssz)
On coming inside through the eastern gate there
2528
was a spacious shed towards the north inside the outside
wall. I cannot tell whether it was a store house or not. . . .
Those who lived under this shed were Hindus, not Muslims.
. . Inside the exterior wall of the attached property there
were two sheds, of which one was on a chabutra
(rectangular terrace) and the other one was under the
Neem tree adjacent to the eastern wall. (E.T.C.)
. . .r - -i l ni i - ii l r -l ii irn
i | ( /z)
. . . This case was only in respect of the chabutra which
he wanted to change into a temple.(E.T.C.)
i nr ni | n - lr i ni - r l
ri ri lr i i i ; i r| r n-i- nr -l- | r |
( s)
The place being in the shape of chabutra is in the
possession of Hindus. (Then stated) Hindus have no
possession over there; most of the place belongs to the
mosque. (E.T.C.)
n r ii in ,ii i| l n -|i ili
li r ni r r| r| . . . - r r| r ni l i ;- |ni
i ; i ni lii n r r ss - | nr i | n
lii i i| -|i i ni i li ni ii r|
ri ni l r ss i | in r | . . . . . . . .n r
ii i| -|i i r ni r| rini| ( r)
If this map has been filed by the commission
appointed by the Court, it is correct. . . I cannot say that
Sita Rasoi and chabutra existed in the same way in 1949 as
they are shown in it. If Shivshankar Lal was on official
commission, the map filed by him must be correct but it
pertains to post-1949 position. . . . . . . . . If this map is of
the official commission, it must be correct. (E.T.C.)
2529
- n -i - r| l |ni i ; i ni l riin -
ss - ii, | riin - ss - | ri n ri| (
c/)
I do not know that Sita Rasoi and the chabutra
remained to be in the same position in 1949 as they existed
in 1934. (E.T.C.)
(b) PW-2 (Haji Mahboob Ahmad)
|ni i ; i ~ri ii i r- i - ii n i
r- -l- - in i | . . . . . . . . .i n rn i l r |ni
i ; r| - ri l| i i n in r| ii| . . . . r
-l- i| l i n - l rn r| ( rr)
When we went to the mosque, we saw chulha
(hearth), chauka, belna (rolling pin) of Sita rasoi ( Sita's
kitchen). . . . . . . . People said that it was Sita Rasoi. I did
not see anybody going there for darshan. . . . . . It was a
mosque, which other people call temple. (E.T.C.)
r -i - r - n l ir i i, ni i |ni i ; i
- -i ss - i ii|
( cz)
I know that a case went on in 1884 in connection
with the outside lawn, chabutra and Sita Rasoi. (E.T.C.)
. . ri, r -| r l ir| i - i; i| ii ni
ii| ( o)
". . . Well, it is true that anybody could have to-and-
fro movement to the outside lawn. (E.T.C.)
(c) PW-3 (Farooq Ahmad)
ii - lr - rin r l i--|, l -i -i
i i - i, ; - i lr in ;- -i rin r in -l-
i| i ii n r | ; n i i | n r n lr
i - l-- i n i| in r| + ni n - i ni ;- -i
ri i lr in iii ni ; n r| in i l ri
2530
i; ii r| r | - n i| r -r in ni i
in i | ( zs)
Hindu fairs are held at Ayodhya such as
Ramnavami, Parikrama Mela and Sawan Mela. Hindus
gather in these fairs. They also come over to see the
mosque. Many Hindus and Muslims used to come over to
see this platform (Chabutara). The Hindus assembling at
time of the said fairs, did not particularly visit this platform
(Chabutara) because there was no offering (chadhawa).
Even on occasion of the fairs, people of all religions used
to come to see the platform (Chabutara). (E.T.C)
(d) PW-4 (Mohd. Yaseen)
- l| lr i i| i i i ii i
r| + ni n -n| i li| s i ii| ( s )
I never saw any Hindu near the Chakla-Belna nor
near the aforementioned northern or southern thatched
roof. (E.T.C)
(e) PW-6 (Mohd. Yunus Siddiqui)
in i - ri ini ii ni in s - in r
lii; n i | . . . . . . .r - i li ii l r ni ssr
i i ri ii|( )
When I went there during nights, people were often
seen sleeping in sheds. . . . . . . . . . . I came to know that this
chabutra had been in existence since 1885. (E.T.C.)
(f) PW-7 (Hasmatulla Ansari)
-n | n i s ii n r l - ;-i- ri ni
ii| l - i| ri ;-i- i in in i rn r| ii| ;
ir| r - ri n i i| -i r| ni|( so)
It is heard that Imam used to reside in a shed
located towards the north. But I never saw the Imam come,
go or live there. I never went to offer namaz at the place
2531
where these Chabutras (raised platforms) were built in this
outer courtyard. (E.T.C.)
(g) PW-8 (Abdul Ajij)
| n il -n i s - - i| l| i iii
in i ~ri in r| ii| . . . . . s | i n -n
i i -i l- rn i ; ii r i l| ;-n -i - r|
ini ii| ( sc)
I never saw anyone either preparing meals or
lighting stove on the other side i.e. in the northern
Chhapper (thatched roof). . . . . . . . . . Either people or
Muajjim used to sit under that Chhapper, and it was not
used for any other purpose. (E.T.C)
. . . r-i| ii| - i| -l- |ni i ; |
r ; r| i|| r- i n r- i ii l ri ~ri i
i i r i r ri r- ri i lr i| r| i | (
s)
. . . In my knowledge, Sita Rasoi had not been built
inside Babri mosque. Neither did I go in that direction nor
did I see the Chulha, Chakla, Belna and Hudsa (all
kitchen utensils) over there, nor did I see the footmarks
over there. (E.T.C)
ri ni ii i li | n ii i;
| i lri r| ii r ni ii| ii| | i-
ili ri r ni i rii | i ini ii| ( s)
There was a platform towards south. It did not have
any wooden throne over it. The platform was vacant. On
entering through the eastern gate, this platform fell on left
side. (E.T.C)
2563. The site map prepared by Gopal Sahai Amin in Suit
1885 mention all these three structures in the outer courtyard
and that map was never disputed. Exhibit 14 (Suit-4) (Register
2532
10 Page 65) is the copy of the written statement filed by Mohd.
Asgar claiming himself to be Mutwalli of Masjid Babari on 22
nd
December, 1885 and in para 3 thereof he himself said that the
Chabutara was constructed in 1857. Para 5 of the written
statement mention about the existence of Sita Rasoi and Kuti
also. His further assertion is that orders were issued about their
removal but the same was not removed which in effect admits
the existence of these two structures also in 1885 and prior
thereto. The same has continued till 1950, as is evident from the
map prepared by the Court's Commissioner Sri Shiv Shankar
Lal Advocate. That be so, it is evident that virtually the entire
outer courtyard had remained in possession of Hindus who have
regularly visited thereat and worshipped. This is also fortified
from Exhibit 15 (Suit -1), the report of the Deputy
Commissioner Faizabad pursuant to the Commissioner order
dated 14
th
May 1877 which describes the outer courtyard as
Janam Asthan and building as Babar's mosque. Justification
given for providing a separate room is rush of people/visitors to
the Janam Asthan on fair day. This order also refers to the
existence of an image on the Janam Asthan platform for which
one Baldeo Das was ordered by Deputy Commissioner on 10
th
November, 1873 to remove the same. The report, however, does
not show that the same was removed at all.
2564. Therefore, in respect to the outer courtyard, claim of
the plaintiffs is clearly barred by limitation. In fact it stood
barred long back but without making any distinction and
without specifying the area of outer courtyard, the suit has been
filed to claim the entire premises which includes the area in
respect whereto such claim is barred long back and has actually
extinct. We find it difficult to separate it and hence, the suit in
2533
its entirety has to be held barred by limitation. This is another
reason.
2565. In view of the above discussion we have no option
but to answer Issue No. 3 (Suit-4) in negative i.e. against the
plaintiffs. We hold that Suit-4 is barred by limitation.
2566. Issue 10 (Suit-1) reads as under:
"Is the present suit barred by time?"
2567. Nobody pressed this issue before us. In respect to
Suit-1 nobody advanced any argument even to suggest that Suit-
1 is barred by limitation. The cause of action according to the
plaintiffs arose on 5
th
January, 1950 when he visited, for
offering worship, the disputed premises and allegedly
obstructed. The suit having been filed within 10 days thereafter
apparently it cannot be said to be beyond limitation. It is
accordingly answered in negative i.e. in favour of the plaintiff
(Suit-1).
2568. Issue No. 9 (Suit-3) reads as under:
"Is the suit within time?"
2569. The plaintiffs, in para 10 of the plaint dated
17.12.1959 (Suit-3) have pleaded that cause of action for the
suit arose on 5
th
January, 1950 when defendant No. 4 (City
Magistrate, Faizabad) illegally took over the management and
charge of the temple with the articles kept therein and entrusted
the same to the receiver- defendant No.1.
2570. In para 24 of the written statement dated 28.3.1960
filed on behalf of the defendants No. 6 to 8, it is pleaded that the
suit in question is not within limitation.
2571. Defendant No. 9, Sunni Board, has not raised any
separate objection with respect to limitation in Suit-3. In fact it
had filed an application under Section 68 of U.P. Muslim Wakf
2534
Act, 1916 on 17/18 March, 1986 for its impleadment as one of
the defendant and the same was allowed by this Court vide order
dated 23
rd
August, 1990 wherein the statement of the learned
counsel for the defendant No. 9 was also recorded that he adopts
the plaint of suit 4 as a written statement in this suit. Defendant
No.11 Mohd. Farooq, S/o Paddur Ahmad was allowed to be
impleaded by order dated 09.12.1991 passed on his own
impleadment application No.179/Ka-1 dated 01.4.1989. This
Court also recorded the statement of Sri Jilani, Advocate,
appearing for defendant No.11 that he will not file separate
written statement and adopts the written statements filed on
behalf of defendants No.6 to 8 and Sunni Board i.e. defendant
No.9. The Court's order dated 23
rd
August, 1990 is as under.
No objections have been filed against this
application. Apart from it, the applicant has statutory right
to be impleaded under Section 68 of the U.P. Muslim Wakfs
Act, 1960. Accordingly the application is allowed. The
plaintiff shall amend the memorandum of plaint so as to
implead U.P. Sunni Central Board of Waqfs as defendant
No.9. Learned counsel for the plaintiff shall carry out the
amendment in the plaint within twenty four hours.
Sri Jilani, learned counsel for the newly added
defendant has stated that he adopts the plaint of Suit No.4
of 1989 as a written statement of this suit. He states that
no separate written statement shall be filed in this Court.
2572. In the replication dated 13
th
May, 1963, the
plaintiffs, in para 24, while denying para 24 of the written
statement has said as under :
24. The contents of para 24 of the written statement are
denied. The plaintiffs have ever been in possession of the
2535
temple in suit and no question of expiry of the period of
limitation arises.
2573. The defendant No.10-Umesh Chandra Pandey in his
written statement dated 21
st
October, 1991 has also pleaded bar
of limitation in para 10, 16 and 17 as under:
10. That the contents of para 10 of the plaint are not
admitted. On the own showing of the plaintiffs, the cause of
action arose in their favour on 5.1.1950, whereas the suit
was filed by them in the year 1959. Thus the suit has been
filed beyond the prescribed period of limitation. Further
the plaintiffs, being not the Manager or the next friend,
of the Deity, are not entitled to file the suit.
16. That the plaintiffs' suit is barred by the provisions of
Indian Limitation Act, as the same is much beyond the
period of limitation prescribed by law.
17. That the plaintiffs had adequate remedies under the
provisions of the Code of Criminal Procedure (as it then
stood) against the order, passed by the Additional City
Magistrate, Faizabad under Section 145 of the Cr.P.C. The
plaintiffs, having not availed of the said remedy within the
time prescribed therefor and having not filed the suit within
limitation prescribed therefor, their suit is liable to be
dismissed on that score
2574. Here also learned counsel for the plaintiffs could not
dispute during the course of the argument that the suit in
question would not be covered by Article 142 and 144 L.A.
1908 and therefore, it is Article 120 L.A. 1908 which would be
applicable in the case in hand. He sought to rely on Article 47
also. In the light of own averments of plaintiffs (Suit-3) the
cause of action arose on 5
th
January, 1950, the suit having been
2536
filed in 1959, it also suffers the vice of limitation and has to be
held barred by time for the reasons we have considered above
while deciding Issue No. 3 (Suit-4). Article 47 has no
application at all. The learned Counsel Sri Verma also could not
show as to how it would cover this case.
2575. Learned counsel for the plaintiffs, however,
submitted that for the purpose of limitation, the order dated
30.07.1953 of the City Magistrate Fyzabad deferring the
proceedings, should be taken to be the commencement of period
for limitation, but from that also we find that the limitation
expired on 31
st
July, 1959. The suit was filed in October, 1959
and in that circumstance also it is barred by limitation
prescribed under Article 120 L.A. 1908. We, however, would
like to point out some more and different aspects in the matter.
2576. Suit-3 is confined to the premises covered by inner
courtyard. The plaintiffs are neither seeking any declaration
about the title nor claim that they have been dispossessed by
anyone wrongly or illegally. What they actually plead is that the
defendant no. 4 City Magistrate, Faizabad, has illegally taken
over management and charge of the temple with articles kept
therein and entrusted the same to Receiver defendant no. 1.
2577. The City Magistrate, Faizabad, had passed a
statutory order in exercise of his powers under Section 145
Cr.P.C. 1898. Neither any declaration has been against the said
order that it is illegal or bad, nor, in our view, such order could
have been challenged in a suit. Enough remedy was available to
the plaintiffs if aggrieved by the said order, by taking recourse
to the provisions under Cr.P.C. 1898 itself. The plaintiffs did not
avail any such remedy.
2578. We have discussed in detail that possession taken by
2537
a Receiver pursuant to an attachment order u/s 145/146 Cr.P.C.
does not amount to deprivation of possession to the real owner
but the Receiver holds property on behalf of the true owner.
Assuming that any cause of action the plaintiffs had, the same
could have been enforced firstly by showing their title or
seeking a declaration about title, particularly when the title
dispute had arisen, inasmuch as, the Muslim parties had already
filed their objections claiming that the entire premises, i.e., inner
and outer courtyard was a mosque and this was also being
contested in another suit, i.e., suit no.1. The plaintiffs have not
shown anything as to how they got title on the property in
dispute. The prayer in effect made by the plaintiffs is nothing
but a circuitous way of wriggling out of the real question of title
and possession knowing it well that the declaration of title has
already met the fate i.e. stand barred by limitation. There is no
dispossession of plaintiffs by any person, either unauthorisedly
or otherwise. Also there is no question of discontinuation of
possession. The question of adverse possession does not arise.
Therefore, Arts. 142 and 144 rightly have been conceded
inapplicable. In the absence thereof the only provision which
would be applicable in suit-3 is Art. 120.
2579. The question of continuing wrong also would not
apply in the case in hand, inasmuch as, the law laid down by the
Calcutta High Court in Panna Lal (Supra) could have been
applicable if the plaintiffs could have shown to be the true
owner of the property in dispute (i.e. inner courtyard) and not
otherwise.
2580. Sri Verma stated that in the revenue entries, the
name of the Mahant of Nirmohi Akhara was directed to be
entered in 1941 and this shows the title of the plaintiffs over the
2538
entire property in dispute. We find no reason to agree. An entry
in revenue record does not confer any title. When the dispute of
title was already raised, the plaintiffs had to get this dispute
settled in one or the other way failing which they would not
succeed in claiming possession of the property in dispute (i.e.
inner Courtyard). In any case, since Arts. 144, 142 and 47 are
inapplicable and the counsel for the plaintiffs has also not been
able to show any continuing wrong in the matter, we find that
the suit is barred by limitation vide Art. 120 of the Limitation
Act. Issue No. 9 (Suit-3) is accordingly answered in negative
and against the plaintiffs 41(Suit-3).
2581. Issue No. 13 (Suit 5) reads as under:
"Whether the suit is barred by limitation?"
2582. In Suit-5, the plaintiffs in para 36 of the plaint have
asserted that the cause of action for filing the suit has been
accruing from day to day. It reads as under :
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 communalist.
2583. The defendant No.3 in para 36 of written statement
dated 14
th
August, 1989 has denied the contents of para 36 of the
plaint. However, specifically no plea with respect to limitation
has been taken in the written statement. In the additional written
statement dated 20
th
April, 1992 , the defendant No.3 in para 46
has said that the suit is heavily time barred. The defendant No.4
in paras 36 and 42 of written statement dated 26/29 August 1989
has averred, that the suit is barred by limitation:
36. That the contents of para 36 of the Plaint are also
2539
incorrect and hence denied as stated. No cause of action
ever accrued to the plaintiffs to file the instant suit as they
have never remained associated with the management or
administration of the property in question. In any case if
any cause of action in respect of the property in suit can be
said to have accrued to the plaintiff No.3, the same must be
deemed to have accrued in December, 1949 when the
property in question was attached and when the muslims
had categorically denied the alleged claim of the Hindus
to perform Pooja in the mosque in question and that
being so the instant suit is highly time barred. It is also
relevant to mention here that the plaintiff no.3 was
required to give the specific date, month and year since
when the alleged cause of action is said to have accrued
and no such description having been given, the averments
of the cause of action are incomplete and defective and the
plaint is liable to be rejected on account of there being no
cause of action as per averments of the Plaint.
42. That the instant suit is highly belated and the same is
barred by the Law of Limitation and as such the same is
liable to be dismissed on this account alone.
2584. Defendant No.23- Javvad Husain in para 49 of the
written statement dated 18.9.1989 has said that the suit is barred
by limitation and similar is the plea of defendant No.24 in para
32 of written statement dated 4
th
September, 1989.
2585. Sri M.M. Pandey, learned counsel for the plaintiffs
(Suit-5), however, sought to over come the difficulty which has
arisen on account of objection about limitation by relying on
Oudh Laws Act 1876 and contended that it shall override and
have precedence over the statute of limitation. He submitted that
2540
the Hindu Law since ancient time as it stood remain unchanged
either by any Emperor or by any Legislature, hence the law as
found originally in India relating to Hindu Deity must be
applied. In the case of S. Darshan Lal Vs. Dr. R.S.S. Dalliwall,
1952 All 825 (DB), it is stated in para 16: "In an inhabited
country, obtained by conquest or cessation, law already
prevailing therein continues to prevail except to the extent
English Law has been introduced, and also except to the extent
to which such law is not civilised law at all." The Court
reiterated that view in para 18.
2586. This dictum which was laid down in the context of
applicability of English Law in Indian territories
conquered/ceded, constitutes a reasonable premise for
application of then prevailing Hindu law at the time of conquest
by Babar. Indeed, Privy Council held in Mosque known as
Masjid Shahid Ganj Vs. Shiromani Gurdwara Prabandhak
Committee , Amritsar, 1940 PC 116 at page 120 Col. 2, that
"There is every presumption in favour of the proposition that a
change of sovereignty would not affect private rights to
property". It is nobody's case nor any evidence is led that during
the Muslim rule commencing from late 12th/early 13th Century
(Mohd Ghauri/Qutubbin Aibak who established 'Slave Dynasty'
from 1206 AD) modified any of these laws. Similarly, it is
nobody's case nor any evidence that during Mughal rule from
Babar till the advent of governance by East India Company
(from 1757 with the Battle of Plassey) or that of British rule
from 1858 (with Queen's Proclamation), any modification in
these provisions of Hindu Law was made. The British had
established regular COURTS to administer justice; Oudh ceded
to East India Company in 1856 only. OUDH LAWS ACT (18 of
2541
1876) provided what laws were to be administered in OUDH
which includes Ayodhya and Faizabad. This Statute holds good
even today by virtue of Article 372(1) of Constitution of India.
A number of Acts were enacted governing relationships and
situations in the Hindu Society, like Hindu Women's Right to
Property Act, Hindu Succession Act, Hindu Marriage Act,
Hindu Minority & Guardianship Act etc., both during the British
times and post-independence of India, but none was framed to
set out the rights, obligations and antecedents of Hindu Deity;
hence Hindu Law as known to Dharma Shastras continue to
apply to Hindu Deities.
2587. The Code of Civil Procedure covers a variety of
Suits, e.g. relating to persons of Unsound Mind, Minors,
Corporations, State Agencies but is totally silent on Hindu
Deities. The general provisions of Limitation Act would not
over-ride the special and clear Hindu Law found in Dharma
Shastras which had ensured the rights of Deity to hold good in
perpetuity, without interference by the State (King). Only those
provisions of period of limitation laid down by Dharma Shastras
could be affected by Limitation Act which were modified by
any statute on specific subjects of Dharma Shastra provisions.
There has never been any statute law governing Hindu Deity &
Deity's property including the Temple which is 'His house'. The
rights of Deities, Ram Janam Bhumi and Bhagwan Shri
Ramlala, have to be determined exclusively/solely on the basis
of the Hindu Law as known to Dharma Shastras and not
imperfect analogies drawn from imperfect comparisons. He
relied on Bhyah Ram Singh Vs. Bhyah Ujagar Singh, 13 MIA
373, PC which ruled firmly, where a text of Hindu Law is
directly on a point, nothing from any foreign source should be
2542
introduced into it, nor should Court interpret the text by
application to the language of strained analogies.
2588. It is pointed out that at pages 67 to 69 of Mulla's
"Principles of Hindu Law" that in a very early decision (4
MIA 97-98) Privy Council conceded that 'it is quite impossible
for us to feel any confidence in our opinion.founded
upon authorities (Hindu Dharmashastras) to which we have
access only through translations, and when the doctrines
themselves, and the reasons by which they are supported or
impugned, are drawn from religious traditions, ancient usages
and more modern habits of Hindoos, with which we cannot be
familiar". He contended that these suits are very different from
any litigation which figured in the past; they are admittedly of
National importance and must be dealt with on a thorough
scrutiny of what the true law is. With the adoption of
Constitution of India with promises contained in Articles 13, 14
and Preamble, the decisions of Privy Council have only
'persuasive' rather than 'binding' effect: (See 1968 SC 1165,
Nair Service Society Vs. K.C.Alexandar). Full effect must be
given to Hindu Dharmashastras in these cases specially in the
light of Oudh Laws Act.
2589. Preamble to Oudh Laws Act of 1876, "declares and
amends the laws to be administered in Oudh" and only in Oudh.
It is exhaustive of the Laws which the Courts of Oudh must
apply in matters covered by the Act. This position continues
even today by virtue of Article 372(1) of the Constitution of
India. Section 3(b)(1) lays down what laws are to be applied in
questions regarding 'any religious usage or institution, and
requires the Courts to apply "custom applicable to the parties
concerned which is not contrary to justice, equity or good
2543
conscience, or has not been by this or any other enactment,
altered or abolished and has not been declared to be void by any
competent authority". Section 3(b)(2) requires to apply "the
Muhammadan law in cases where parties are Muhammadans,
and the Hindu law in cases where parties are Hindus, except in
so far as such law has been, by this or any other enactment,
altered or abolished, or has been modified by any such custom
as is above referred to". Reading the two clauses together, the
Section sets out the laws which must be applied to 'parties
concerned'. In rights/obligations concerning Muhammadans, the
Muslim law must be applied; in those concerning Hindus, the
Hindu Law must be applied and after determination of those
rights/obligations, if rights/equities have to be judged between
Muhammedans and Hindus, then Equity, Justice and Good
Conscience have to be applied for determination of 'Relief'.
Section 3(f) requires to apply ".all enactments for the time
being in force and expressly, or by necessary implication,
applying to . Oudh or some part of Oudh". This demands
that the Statute Law in force for the time being must be applied.
It would be appreciate that this provision itself is Statutory so
that the provision makes the Hindu/Mohammedan Law, so to
say, to be a Statutory Law akin to 'referential legislation'.
Instead of incorporating specific provisions of
Hindu/Mohammedan Law into the Oudh Laws Act, it simply
require those laws to be applied, wherever they may be found.
2590. Sri Pandey argued that in Bajya Vs. Gopikabai,
1978 SC 793, two categories of referential incorporation are
recognised: (1) provision of another Statute is incorporated and
(2) the 'law concerning a particular subject as a genus' is
incorporated. In later case, the legislative intent is to include all
2544
subsequent amendments made from time to time in the general
law on the adopted subject. Oudh Laws Act belongs to second
category; the important point is that there has never been any
legislation on Hindu Deities, hence the original Dharmashastra
law continues to apply.
2591. Section 3(g) requires that "in cases not provided for
by the former part of this section, or by any other law for the
time being in force, the Courts shall act according to justice,
equity and good conscience". Section 4 says that "all local
customs and mercantile usages shall be regarded as valid, unless
they are contrary to justice, equity or good conscience.."
Simply put, the provision accords primacy to 'personal law'
(subject to any other law for the time being in force) and applies
justice, equity and good conscience only when there is no
personal law and that although local custom shall be deemed to
be valid, yet Custom will have to stand the test of justice, equity
and good conscience. Fundamentally, therefore, Hindu Law has
to be applied on the rights/property and incidental matters
concerning Hindu Deity and Temples unless such law has been
modified by any statute or Custom; no such statute was ever
enacted and no case of any modifying Custom ever arose in
these cases.
2592. He further argued that, Section 16 of Oudh Laws
Act lays down "Rule of Limitation" and applies Act XIV of
1859 to Oudh with effect from 4.7.1862. Act XIV of 1859
provided for one uniform law of limitation for all Courts in
British India, but had not provided for extinction or acquisition
of rights/title on the basis of possession. Section 16 of Oudh
Laws Act goes no further. Even so, Section 3(f) mentioned that
"all enactments for the time being in force and expressly or by
2545
necessary implication applying to the territories.of Oudh or
some part of Oudh" will be applied by the Courts; Limitation
Act of 1871 could fall within this category but for its exclusion
as shall appear shortly. Extinction/acquisition of rights came to
be provided for the first time by Sections 27 to 29 of Limitation
Act IX of 1871 (vide page 8 of Vol. 1 of "Obhrai's Limitation
and Prescription" on Limitation Act IX of 1908 published by
Eastern Law House, Lahore and page 7 of Vol. 1 of Sanjiva
Row's "Limitation Act 1963" Edn 1987 published by Law Book
Co, Allahabad). Since the substantive rights of Deity under
Hindu Law clearly provided that its rights are perpetual and
cannot be extinguished under any circumstance, it must be
treated to be a Statute Law under the Oudh Laws Act; it has
only to be found out whether the provision for extinction under
Act IX of 1871 is such as falls within the restrictive clauses of
Section 3(b)(2) of the Oudh Laws Act. The only restrictive
stipulation in that clause is: "except insofar as such law has
been, by this or any other enactment, altered or abolished".
Firstly, an Act of 1871 cannot alter or abolish any provision of
1876 Act. It is also significant that although Limitation Act
1871, which had provided for extinction/acquisition of
ownership right on the basis of possession, was already on the
Statute Book when Oudh Laws Act was enacted four years later
and gave Statutory status to Hindu Law by 'referential
legislation', Oudh Laws Act did not make a specific provision to
curtail the substantive right of the Deity under Hindu Law.
Secondly, the provision of 'altering/abolishing' enactment must
alter or abolish the Hindu Law, it is not enough to provide for
alteration/abolition of rights 'generally.' Limitation Acts of 1877
and 1908 similarly contained provision for extinction of rights
2546
similar to Act of 1871, which is not enough to alter or abolish
the Hindu Law regarding Hindu Deities. The Hindu Law of
Deities and law of limitation under these enactments need to be
harmoniously construed. In this exercise, the procedure
provided in a Statute for enforcement of substantive rights
conferred thereby should be construed as far as possible so as to
give effect to and not nullify those rights (1941 Mad 158,
Palani Goundan Vs. Peria Gounden). Procedural enactments
should be construed in such a manner as to render the
enforcement of substantive rights effective: (1959 SC 422 (426),
Velluswami Vs. Raj Nainar; 1989 SC 2206, M.V.Vali Press
Vs. Fernandee Lopez). Finally, stipulations of Hindu Law
regarding Deity, recognised by Section 3(b)(2) of Oudh Laws
Act are 'particular' and 'special'; they shall over-ride the 'general'
stipulation of Limitation Acts. There is no essential
Jurisprudential or Constitutional requirement that for every
right/remedy a period of limitation must be enacted; more so in
respect of Hindu Deity which is conceived of by Hindu
Dharmashastra Law as Immortal, Indefeasible, Timeless,
Omnipresent & Eternal. After all, Transfer of Property Act or
Indian Trusts Act admittedly does not apply to Hindu Deity.
Hence, provisions of extinction of rights under any of the
Limitation Acts would be ineffective over the perpetual rights of
Deity under Hindu Law. Here, notice may be taken of Manu's
edict no. 200 of Chapter 8 (at page 174 of "The Laws of
Manu", Penguin Classics, Edn 2000) which lays down: 'If a
man is seen to be making use of something, but no title at all is
to be seen, then the title is the proof (of ownership), not the use;
this is a fixed rule'. Thus, according to Hindu Law, 'title' not
'possession' establishes ownership and that concept cannot be
2547
disturbed summarily through vague interpretations of general
provisions relating to Limitation.
2593. Sri Pandey continued to submit vociferously that
same result seems to flow from the principle of Reading Down a
general provision in the context of the law as a whole, vide All
Saints High School Vs. Govt of A.P. (1980) 2 SCC 478 para
112. Since the plain meaning of Section 3(b)(2) of Oudh Laws
Act specifically confines the laws of Hindu religious institutions
to the Hindu Personal Law, i.e., the Dharmashastra Law, which
unmistakably confers absolute perpetual and indefeasible rights
on Deity and His property, a mere general provision that the law
of limitation would apply to any suit instituted in respect of 'any'
property which may also include Deity and/or His property,
thereby denying right of suit after expiry of a certain period of
limitation will have to be 'Read Down' to prevent deprivation of
Deity's clear perpetual rights.
2594. From the angle of Limitation Act, since the Deity
who is the owner of the property, suffers from physical
disability, its interests have to be looked after in perpetuity.
Reliance is placed on Manathu Naitha Desikar Vs.
Sundarlingam 1971 Mad 1(FB para 20).
2595. In a bunch of WPs, decided by a DB of Rajasthan
High Court, Ram Lal & another Vs. Board of Revenue &
Others, 1990 (1) RLR 161, the DB held in para 8: 'It will not be
out of place here to mention that there are series of judgments
of Hon'ble Supreme Court and the Hon'ble Supreme Court has
held that the Deity or Idol should ordinarily be considered as
minor in perpetuity'. In para 10, the High Court again said: "For
the reasons mentioned above, we are of the view that the
deity/idol should be treated as a minor in perpetuity" When
2548
the offerings are made to the deity, they become property of the
deity and not of the temple. Deity owns the offerings and the
Pujari or the Shebait shall not be the owner of the offerings and
the property of the deity'. This decision was followed in Temple
of Thakurji Vs. State of Rajasthan & others, 1998 Raj 85
(para 11). These decisions also laid emphasis on the obligation
of the State to protect the interests of the Deity as a perpetual
minor. In Sri Banamali Neogi & others Vs. Sri Asoke Kumar
Chattopadhyayay & others, 96 CWN 886 (para 10), Calcutta
High Court held Deity to be a perpetual minor. Similarly, in
Trilochan Das Adhikari & another Vs. Simanchal Rath &
others, 1994(II) OLR 602, Orissa High Court held Deity to be
perpetual minor. In foot-note (j) at page 12 of Mulla's
Principles of Hindu Law, it is stated that grounds of disability
were recognised in Hindu Law, for instance there was
exemption from limitation in case of minors, property of King
and deposits involving the element of Trust; obviously,
dedication to Deity involves "Trust"; Indian Trusts Act does not
apply, vide Section 1 of the Act. In Bishwanath Vs. Radha
Ballabh ji, 1967 SC 1044, it was held that an Idol is in the
position of a minor and when the person representing it leaves it
in a lurch, a person interested in the worship can certainly be
clothed with an adhoc power of representation to protect its
interests.
2596. According to Katyayana, Temple property is never
lost even if it is enjoyed by strangers for hundreds of years
(P.V.Kane Volume III page 327-328); even the king cannot
deprive temples of their properties. In Ramareddy Vs. Ranga
(1925 ILR 49 Mad 543) it is held that managers and even
purchasers from them for consideration could never hold the
2549
endowed properties adversely to the Deity and there could be
never adverse possession leading to acquisition of title in such
cases. The Idol/Deity which is an embodiment of Supreme God
and is a Juristic Person, represents the 'Infinite the Timeless'
cannot be confined by the shackles of Time. Brihadaranakya
Upanishad (referred to in Mulla's Principles of Hindu Law at
page 8) lays down: Om Purnam adah, purnam idam, purnat
purnam udachyate; purnasaya purnam adaya, purnam
evavasisyate ['That is Full, this is Full. From the Full does the
Full proceed. After the coming of the Full from the Full, the Full
alone remains' at page (v) of Brihadaranyaka Upanishad by
Krishnanand, pubished by the Divine Life Society, P.O.
Shivananadanagar, District Tehri-Garhwal UP- 1984 Edn.] In
Mahant Ram Saroop Das Ji Vs. S.P.Sahi, Special Officer-in-
charge of Hindu Religious Trusts, 1959 SC 951 (para10), it
recognised that "a Deity is immortal and it is difficult to
visualise that a Hindu private debutter will fail Even
if the Idol gets broken, or is lost or is stolen, another image may
be consecrated, and it cannot be said that the original object has
ceased to exist". In Idol of Thakurji Govind Deoji Maharaj
Jaipur Vs. Board of Revenue Rajasthan, Jaipur, 1965 SC 906
(para 6), it is laid down: "An Idol which is juridical person is not
subject to death because the Hindu concept is that the Idol lives
for ever " Timelessness, thus, abounding in the Hindu
Deity, there cannot be any question of the Deity losing its rights
by lapse of time. Jurisprudentially also, there seems to be no
essential impediment in a provision which protects the property
rights of disabled persons, like a Deity, to remain outside the
vicissitudes of human frailties for ensuring permanent
sustenance to it and therefore to keep it out of reach of human
2550
beings, including the King. Every law is designed to serve some
social purpose; the vesting of rights in Deity, which serve the
social purpose indicated above since ancient times, is quite in
order to serve social good.
2597. Oudh Laws Act has laid emphasis on application of
principles of equity, justice and good conscience; but it is
necessary to appreciate in what fields or areas, the Act requires
those principles to be applied. Clause (g) of Section 3, lays
down the broad principle that "in cases not provided for by the
former part of this section or by any other law for the time being
in force", Court has to act in accordance with justice, equity and
good conscience. Section 3(b)(2) clearly stipulates that in
matters relating to Hindu religious institutions, the Hindu Law
shall apply; hence Clause (g) will not apply. Justice, equity and
good conscience is made applicable to 'Custom' under Section
3(b)(1), but the law regarding Deity is part of 'personal law'
under Section 3(b)(2) as distinguished from 'customary law'.
Mulla mentions at page 65, that principles of Equity, Justice &
Good Conscience were invoked only in cases for which no
specific rules existed. In Gurunath Vs.Kamalabai 1955 S.C.
206, it has been held that in the absence of any clear Shastric
text, Courts have authority to decide on principles of justice,
equity and good conscience.
2598. It is a settled principle that 'Equity' follows 'Law',
i.e. where Law is applicable, considerations of Equity do not
come into play (vide, Halsbury's Laws of England 4th Edn,
Vol 16, para 1204). Since Hindu Law specifically prescribes
that the rights of Deity are not destroyed by another's possession
howsoever long, 'equity' cannot be applied to deprive the rights
of Deity on the basis of possession.
2551
2599. Since the deities themselves are the Plaintiffs No. 1
and 2, being akin to a perpetual minor, no limitation runs, and
any bona fide group of worshippers or even a single worshipper,
which the Plaintiff No.3 is and represents, can act in the name of
the deity/ deities to defend its/their rights.
2600. In Acharya Maharishi Narendra Prasad ji Vs.
State of Gujarat, (1975) 1 SCC 2098 (para 26), while
upholding the right of State to acquire property of Deity under
Article 31 of the Constitution, laid down an exception by
holding: "If on the other hand, acquisition of property of
religious denominations by the State can be proved to be such as
to destroy or completely negative its right to own or acquire
movable and immovable property for even the survival of a
religious institution, the question may have to be examined in a
different light". This dictum was reaffirmed by Apex Court in
Dr. M. Ismail Faruqui's case, 1995 SC 605 (para 79); it was
further held in para 77: "The protection under Article 25 and 26
of the Constitution is to religious practice which forms an
essential and integral part of the religion"; the law stated in para
78 is: "While offer of prayer or worship is a religious practice,
its offering at every location where such prayers can be offered
would not be an essential part of such religious practice unless
the place has a particular significance for that religion so as
to form an essential or integral part thereof. Places of worship
of any religion having particular significance for the religion,
stand on a different footing and have to be treated differently
and more reverentially". This decision is in this very case and
has to be respected fully. In the summary contained in para 82,
the Court observed: "Obviously, the acquisition of any religious
place is to be made only in unusual and extraordinary situations
2552
for a larger public purpose keeping in view that such
acquisition should not result in extinction of the right to
practice the religion, if the significance of that be such".
Undoubtedly, Asthan Ram Janma Bhumi , Plaintiff No. 2 of
OOS 5 of 1989, belongs to this very category of Deity Class
entirely by itself; hence the State can not acquire either the
Deity or its property.
2601. As an independent special Class of person, there is
no constitutional impropriety or illegality in having laws
exclusively applicable to the Plaintiff-Deities of OOS 5 of 1989.
A recent analogy is provided by The Public Waqfs (Extension)
of Limitation Act, 1959 which accords a privilege to all the
Muslim Public Waqfs in the period of limitation for certain
types of civil suits upto 31
st
day of December 1970 for the only
reason that in the wake of the partition of India Mutawallis of
certain properties had migrated to Pakistan or those who stayed
behind could not institute civil proceedings for recovery of
possession of these properties. On this basis limitation has been
extended in respect of all Public Waqfs. Similarly, laws
exclusively applicable to Hindu deities could be had and read in
the light of Oudh Laws Act, 1876, could apply the Hindu
Dharma Shastra Law, which contains substantive as well as
provisions relating to Limitation qua Hindu Deities. The legal
position under the Hindu Dharma Shastra Law being as the one
indicated above, destruction of Hindu Temple at the site of
disputed structure or erection of Babri Masjid over it could
never deprive the two Deities, Ram Janma Bhumi & Bhagwan
Shri Ramlala of their ownership of the disputed property/area;
the Indian Law of Limitation is not applicable at all. Decision of
Supreme Court in Shah Bano's case was upset by the Parliament
2553
on the ground of sensitivities of Muslim Community for Muslim
Personal Law. Muslim Personal Law (Shariat) Application Act,
1937 was framed to apply personal law to Muslims. Sensitivities
of Muslims stand even today in the way of adoption of a
Common Civil Code for India envisaged by Article 44 of
Directive Principles of State Policy in our Constitution. The
Constitutional protection, if any, for such laws should also
support special laws in the case of Hindu Deity, on principles of
equality, particularly in view of Oudh Laws Act 1876 and
Article 372(1) of the Constitution, he submitted.
2602. He relied on The Hindu Law of Religious and
Charitable Trusts by B.K. Mukherjea para 4.10, page 158
which says:
"A Hindu idol is, according to long-established authority,
founded upon the religious customs of the Hindus, and the
recognition thereof by courts of law, a 'juristic entity.' It
has a juridical status, with the power of suing and being
sued. Its interests are attended to by the person who has the
deity in his charge and who in law is its manager, with all
the powers which would, in such circumstances, on
analogy, be given to the manger of the estate of an infant
heir. It is unnecessary to quote the authorities; for this
doctrine, thus simply stated, is firmly established."
2603. He refers to the History of Dharma Shastra by
P.V. Kane, Vol. III Page 327-328Narad IV, Page-83, where it
states that womens property (Streedhana) and state property
(land) is not lost even after hundreds of years when it is enjoyed
without title. Katyayana (330) adds to the above list Temple
Property and what is inherited from the father or mother.
2604. Akin to an infant, in law the rights of the deity
2554
cannot be extinguished by limitation and he fortified this
proposition referring to Pramatha Nath Mullick Vs.
Pradyumna Kumar Mullick (supra), (Page 140) and Bimal
Krishna Ghosh Vs. Shebaits of Sree Sree Ishwar Radha
Ballav Jiu (supra) (Page 340).
2605. Referring to K. Manathunaitha Desikar Vs.
Sundaralingam, AIR 1971 Madras 1 (FB) Sri Pandey
submitted that since deity who is the owner of property suffers
from physical disability, its interests have to be looked after in
perpetuity.
2606. Sri Pandey also referred to Chapter 7 of the "Laws
of Manu" (Penguin Classics, Edn 2000) at page 149, Manu's
edicts nos. 201 to 203 lay down that on conquest, the King-
conqueror "should make authoritative their own laws (i.e. of the
vanquished) as they have been declared"
2607. Ram Janmabhumi continued to exist as a
Swayambhu Deity, owning Itself and the Temple, hence no
question of extinction of title by Limitation or dispossession
could arise. The important aspect of Hindu Law relating to
Deities, thus, is that the Deity is never divested of its rights in its
property; in the case of self-revealed Idol, coupled with the faith
of its followers, there is no independent consecration and the
real owner of the property dedicated to a Temple, is deemed to
be God Himself represented through a particular Idol or Deity
which is merely a symbol.
2608. Sri K.N. Bhat, Senior Advocate sought to argue that
the deity being a minor, is entitled to have the protection under
Section 6 of the Limitation Act and hence Suit-5 in the case in
hand cannot be said barred by limitation.
2609. Sri Bhat contended that Suit-5 was filed seeking a
2555
declaration for the entire premises described and delineated in
Annexures 1, 2, and 3 of Sri Ramjanambhumi at Ayodhya as
belong to plaintiff-deities but after the decision of the Apex
Court in Dr. M. Ismail Faruqui (supra), the land in dispute
would automatically confine to that which is occupied by the
disputed stricture, i.e., inner and outer courtyard. Suit was filed
in July 1989 and, hence, for the purpose of limitation it would
be governed by LA 1963. Article 58 thereof is relevant which
deals where a suit is filed to obtain any other declaration and
limitation prescribed therefor is three years from which the
period begins to run, i.e., right to sue first accrues. He submits
that this period prescribed is subject to Section 4 to 24 of LA
1963. Section 6 (1) deals with legal disability and reads as
under:
Where a person entitled to institute a suit at the
time from which the prescribed period is to be reckoned
is a minorhe may institute the suitwithin the same
period after the disability has ceased.
2610. For the purpose of attracting Article 58, the relevant
date is when the right to sue first accrues. In this regard Sri Bhat
submits that in the long history of this case on what date
according to the defendants the period began to run is the moot
question. Unless the defendants prove otherwise the plaint
averments as to the cause of action should be the basis for
applying the provisions about limitation. Plaint paragraph 18
explains why the present suit was filed despite the pendency of
several other suits. In paragraph 30, it is pleaded, among others,
that the Hindus were 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
2556
family of architect 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. The plaint also
sets out the details of the pending proceedings under Sec.145
Cr.P.C. and before any of the steps mentioned in paragraph 30
could be taken like laying of the foundation stone, the title of the
plaintiffs had to be declared. That is why on July 1, 1989, the
suit was filed. Paragraph 36 of the plaint has to be read along
with the other relevant averments. The defendant No.4 in
response to the above paragraphs have asserted that the whole
Rama temple was imaginary. It is no longer imaginary. It is a
matter of public knowledge that the agitation for building a
temple at the disputed area had gathered momentum throughout
India, particularly from about the year 1989 culminating in the
destruction of the structure on December 6, 1992. The averment
that in 1989, there was a particular reason why the suit had to be
filed is properly pleaded and justified. Therefore the suit is
within the prescribed period of limitation."
2611. Per contra learned counsels for pro mosque parties
submitted that it has been held by a Division Bench of this
Court in Chitar Mal Vs. Panchu Lal (supra) that an idol is not
a perpetual minor hence Section 7 of the Limitation Act (now
Section 6) has no application and this view has also been
followed by a Division Bench of Orissa High Court in
Radhakrishna Das Vs. Radha Ramana Swami (supra), there
is no question of giving benefit of Section 6 to the plaintiffs 1
and 2 (Suit-5). They further submit that the building in dispute
having been constructed several hundred years ago, the suit in
question is ex facie barred by limitation.
2557
2612. Sri Siddiqui, learned counsel appearing for the
Muslim Parties, whose submission on the question of limitation
has been adopted by Sri Jilani, contended that the entire reading
of the plaint of Suit-5 does not show any accrual of right to sue
within the period of limitation and, therefore, firstly there is no
cause of action, whatsoever, and secondly in any case, the suit is
ex facie barred by limitation. He submits that even if there
existed any temple at site in dispute and as claimed by the
plaintiffs (Suit-5) that it was demolished in 1528 so as to
construct the disputed structure, a mosque, is taken to be correct,
that shows that the right to sue accrued in 1528. The building
had continued to exist at the site in dispute till Suit-5 was filed
and when for the last four hundred years no remedy, as
permissible in law, was availed by the plaintiffs, the same could
not have been availed by the plaintiffs in 1989. He further
submits that the latest cause of action, if any, at the best accrued
on 29
th
December 1949 when the premises constituting inner
courtyard was attached by the Magistrate in the proceedings
initiated under Section 145 Cr.P.C. and if that be so, the point of
commencement of limitation is the date of order passed under
Section 145 Cr.P.C., i.e., 29
th
December, 1949. The suit having
not been filed within the period of limitation of six years, as
provided at that time under Article 120 of LA 1908, the present
suit is ex facie barred by limitation particularly in the absence of
any fresh cause of action having accrued to the plaintiffs as no
such fresh cause of action has been demonstrated or specified in
the plaint.
2613. Whether Suit-5 is barred by limitation or not is
really a vexed question in the peculiar facts and circumstances
of this case. We have already held that the two plaintiffs no. 1
2558
and 2 are juridical persons and have decided the concerned
issues accordingly. The question as to whether the disputed
structure was constructed in 1528 by Babar or any of his agent
has also been decided by us holding that the parties concerned
have failed to prove the said issues.
2614. Be that as it may, it cannot be disputed that by the
time Father Joseph Tieffenthaler visited the area of Avadh
between 1766 to 1771, the disputed structure had already come
into existence. As per local belief, it was caused by Aurangzeb
after demolishing the then existing temple of Lord Rama at that
very place. Though we have not expressed any final opinion as
to whether it was actually constructed during the reign of
Aurangzeb or not, but once it is certain that the disputed
structure had come into existence by the time Father Joseph
Tieffenthaler visited Ayodhya i.e. before 1766, even from that
date more than two hundred years have passed. The question
would be, can an issue be raked up after more than two centuries
particularly when nothing governed at that time by any codified
law but it was the rule of the King and his command was law of
the land.
2615. Lots of authorities have been cited before us to
suggest as to what is said in law of Shariyat when a Ruler
conquer a territory vis a vis the subject of that territory.
Similarly, what is said in Hindu laws in similar circumstances
has also been placed before use. In the context of the modern
International law also, various charters of United Nations
dealing with the rights of the two sovereign authorities, dealing
with the matter of transfer of power etc. have been cited. It is
said that by mere change of King, the laws by which the subject
governed or was being governed would not automatically
2559
change and shall continue to be governed by the then existing
personal laws. On behalf of plaintiffs (Suit-5), it is pointed out
that under Hindu law the rights and privileges of the deity are
well protected and it is also the obligation of the King to extend
such protection since a deity is treated to be a minor and,
therefore, the obligation of protection of minor's right has been
imposed upon the King. The law of Shariyat also does not make
any change. Further at that time there was no period of
limitation prescribed under the statute, hence, the present suit
cannot be said to be barred by limitation.
2616. First of all, let us examine the occasion and the
purpose for which Suit-5 has been filed. Paragraphs 3 to 10 refer
to various suits filed regarding to the property in dispute
between 16.1.1950 to 18.12.1961 in the Court of Civil Judge,
Faizabad and the interim injunction orders passed therein. Paras
11, 12, 13 and 14 complain about non disposal of those matters
despite passage of more than 25 years since the first suit was
filed. It also says that the plaintiffs deities and their devotees are
unhappy with the prolonged delay in disposal of those cases and
distorted affairs of temple in the hands of Receiver. A large
amount of money offered by worshippers is being
misappropriated by Pujaries and other temple staff uncontrolled
by Receiver. The devotees of plaintiffs deities desire to
construct a new temple at the disputed site after removing the
old structure. Then para 15 to 17 relates to creation of a Trust,
its object and purpose. In para 18, it says that in pending suits,
the deities who are juridical persons have not been impleaded
though they have a distinct personality of their own, separate
from their worshipers and servers etc. Considering the events of
previous four decades, the plaintiff-deities feel that the point of
2560
view of the plaintiffs deities also need be placed before the
Court for a just determination of the dispute relating to Sri
Ramjanambhumi, Ayodhya and the land and building and other
things appurtenant thereto. It is in these circumstances that the
plaintiffs are advised to file a fresh suit of their own. Then in
paras 19 to 23 certain historical facts have been averred which
we have already given, thus not repeating. In para 24, it is said
that building constructed in the shape of mosque could not have
been so for the reason that it did not conform to tenets of Islam
in various ways. Para 25 and 26 deny the averments that despite
construction of the building and called as Mosque, prayer was
never offered therein by the Muslims and on the contrary, the
plaintiffs deities continued to be worshipped thereat by Hindus.
Para 27 and 18 relates to the incidence of 22
nd
/23
rd
December,
1949 when the idol of Bhagwan Sri Ram was installed under the
central dome of the building and there was no obstruction by the
Muslims since neither any one resided near the place in dispute
nor otherwise they offered any resistance. The facts regarding
attachment proceedings under Section 145 Cr.P.C., handing
over premises within the inner courtyard to the Receiver are also
mentioned. Para 29 says that the deities being legal persons own
the property in dispute also and having been placed in inner
courtyard from 22
nd
/23
rd
December, 1949 have perfected their
title by all means since they are not party to any of the
proceedings. It is also said that in the absence of impleadment of
deities, if somebody otherwise is claiming title, the possession
of plaintiffs is adverse since 22
nd
/23
rd
December, 1949 and they
have perfected title as the others' title, if any, extinguished after
twelve years from 22
nd
/23
rd
December, 1949. Having said so,
para 30 and 31 say that Hindu public and devotees of plaintiff-
2561
deities having decided to proceed for construction of a new
temple and since the plaintiff-deities are not party in the
litigation pending in the Court, they are not bound by those
proceedings in any manner, but in order to remove any doubt or
obstruction in the path of fulfillment of desire of the
construction of a new temple, the present suit has been advised
to be filed. Thereafter, it is said that the defendants 4, 5 and 6,
i.e. the Muslims parties and Sunni Board, have confined their
claim in Suit-4 to the building and area encroached in the inner
courtyard. It is also said that the right of management of a
Mosque, Muslim waqf, is within Mutwalli and the defendant no.
23, Late Javvad Husain was disclosed to be Mutwalli of the so
claimed Mosque upto 1940 and hence he has been impleaded in
the present suit, but he did not file any suit or joined as plaintiff
seeking possession of the property in dispute being its Mutwalli.
This also shows that there existed no Mosque according to
Shariyat law. Thereafter, History from 1990 to 1995 including
the enactment of Act, 1933 and the Apex Court's decision in Dr.
M. Ismail Faruqui (supra) is mentioned. Then in para 36, it is
said that cause of action for suit is accruing from day to day,
particularly, since recently when the plan for re-construction of
temple is sought to be obstructed by violent action from the side
of Muslim community. Based on the above pleadings, the two
reliefs have been sought; one is for declaration and another for
perpetual injunction.
2617. The facts, as are pleaded, in fact, are a bit puzzle-
some and make it very difficult at first flush to understand as to
what really cause of action was which the plaintiffs claim to
have accrued day to day and how the suit is protected from the
clutches of the statute of limitation.
2562
2618. To understand the things, let us first summarize the
facts as pleaded, mostly whereof, we have already referred and
some of which already considered in the earlier part of this
judgement.
(a) The place in dispute is believed by Hindus as the
birthplace of Lord Rama. Since time immemorial
continuously being visited and worshipped by Hindus.
(b) At the place in dispute a non-Hindu structure was
raised by or on behalf of or at the command of a Muslim
Ruler before the visit of Tieffenthaler, i.e., 1766-71 AD in
Oudh. This structure was treated and called as 'Mosque' by
the local people throughout and others also.
(c) Despite construction of a building by Muslim Ruler,
called and understood by the local people as 'Mosque',
Hindu people continued to visit and offer worship
according to their faith and belief that the place is where
Lord Rama was born and, therefore, sacred and pious.
(d) Construction of the building, which though treated
as Mosque, caused no impact on the belief of Hindus
about the sacredness or piety in any manner.
(e) Within the premises of the undivided Mosque, there
existed a non Islamic structure, i.e. a Bedi which was
noticed by Tieffenthaler in his Traveller's Account when
he visited Avadh area between 1766 to 1771 and the travel
account published in 1786.
(f) This place of worship and non Islamic structures
added with the passage of time, i.e., Sita Rasoi/ Kaushalya
Rasoi/ Chhati Pujan Sthal, Chhappar/ Kuti/ Bhandar and
Ram Chabutara.
(g) These structures were noticed in 1858, 1873, 1885,
2563
1949, 1950 and continued till demolition of the entire
disputed structure on 6
th
December 1992. (This is as per
the record of this case.)
(h) Despite the entire disputed structure called Mosque,
the British Government also recognised the rival claims of
two communities; inasmuch, to pacify violent dispute
among the two communities, they divided the disputed
area in two parts so that two sections may separately offer
their prayer/ worship and may not have any occasion to
clash with each other.
(i) Despite this division, on one hand Hindus kept
possession of the portion for which Britishers allowed
them to continue their worship i.e. outer courtyard, but
also continued to enter the portion meant for Muslims for
their religious activities (i.e. inner courtyard). Entry of
Hindus in that area (inner courtyard) continued unabashed
despite repeated complaints, removal orders, actions etc.
(Record from 1858 to 1885 fortify it.)
(j) The disputed structure, treating a Mosque, the
Britishers, allowed a Nankar/ grant to two Muslim
persons, namely, Mir Razzab Ali and Mohd. Asghar, who
claimed to be the fourth/fifth in succession of the alleged
founder Mutwalli of the building in dispute, i.e. Syed
Abdul Baki and pursuant to that grant the said persons
claimed to have incurred expenses on the maintenance of
building in dispute such as white washing, cleaning
repairing etc.
(k) On 22
nd
/23
rd
December, 1949, the idols of Ram Lala
were kept by Hindus in the inner courtyard i.e. the
premises meant to be used by Muslims by the Britishers
2564
after dividing premises sometimes in 1856-57.
(l) Thereafter, on 29
rd
December 1949 though the
internal part of the disputed premises, i.e. inner courtyard
was attached by the Magistrate by an order under Section
145 Cr.P.C. yet the fact remains that he also ensured
worship of the idols kept under the central dome in the
inner courtyard according to Hindu Shastrik laws and to
the same effect an injunction order was also passed by
Civil Court on 16.1.1950 clarified on 19.1.1950,
confirmed on 3.3.1951, which attained finality after
dismissal of F.A.F.O. No. 154 of 1951 by this Court on
26
th
April 1955.
(m) Worship, as permitted, has continued by Hindu
people and admittedly since 23
rd
December 1949 no
Muslim either has entered the entire premises in dispute or
offered Namaz thereat.
(n) However, worship by Hindus in general since
29.12.1949 also had continued from the iron grilled door
of the dividing wall and only priests/ Pujaries were
allowed to enter the premises for worship in accordance
with Shastrik procedure.
(o) In 1986, the District Judge Faizabad by order dated
1.2.1986 directed for removal of locks, to open the doors
so that the Hindu public may worship the idols under the
inner courtyard by entering the site.
2619. The above facts show that despite several litigations,
in one or the other way, so far as the plaintiffs in the present suit
are concerned, their status or their worship continued to be
observed and followed in one or the other manner. No action or
inaction in the meantime was such whereagainst the plaintiffs
2565
could claim a grievance and a right to sue which ought to have
been availed by them within a particular period of limitation. It
is an admitted position that under Islamic laws, no concept of
limitation is recognised while in Hindu laws, the rights earned
by prescription on certain matters are provided which excludes
deity.
2620. In this entire episode, taking it back to a few
hundred years, the only occasion which to some extent could
have been said to be adverse to the plaintiffs was when the
disputed structure was raised. Neither at that time the concept of
legal principles, as we have today under the codified laws of
British India and thereafter, was recognised and/or known, nor
the plaintiffs, in view of the subsequent events, had any cause of
action. Moreover, as a matter of fact, the place in dispute
continued to be visited by the Hindus for the purpose of
worship, Darshan etc. The religious status of plaintiff-deities
remained intact. We do find mention of the factum that despite
construction of the building as Mosque, the Hindus visited there
and offered worship continuously, but we find no mention,
whatsoever, that the Muslims also simultaneously offered
Namaz at the disputed site from the date it was constructed and
thereafter till 1856-57. At least till 1860 we find no material at
all supporting the claim of the Muslim parties in this regard. On
the contrary, so far as the worship of Hindus in the disputed
structure is concerned, there are at least two documents wherein
this fact has been noticed and acknowledged. There is nothing
contradictory thereto.
2621. Father Joseph Tieffenthaler in his book
"Description : Historique Et Geographique : Del'inde" has
written:
2566
"Emperor Aurengzebe got the fortress called Ramcot
demolished and got a Muslim temple, with triple domes,
constructed at the same place. Others say that is was
constructed by 'Babor'. (Page 253)
"On the left is seen a square box raised 5 inches
above the ground, with borders made of lime, with a
length of more than 5 ells and a maximum width of
about 4 ells. The Hindus call it Bedi i.e. 'the cradle.
The reason for this is that once upon a time, here was
a house where Beschan was born in the form of Ram.
It is said that his three brothers too were born here.
Subsequently, Aurengzebe or Babor, according to
others, got this place razed in order to deny the
noble people, the opportunity of practising their
superstitions. However, there still exists some
superstitious cult in some place or other. For
example, in the place where the native house of
Ram existed, they go around 3 times and prostrate
on the floor. The two spots are surrounded by a low
wall constructed with battlements. One enters the
front hall through a low semi-circular door."
(Page 253-254)
2622. Same thing has been said in the Edward Thornton's
Gazetteer (supra) published in 1858. It also said as under:
"A quadrangular coffer of stone, whitewashed, five
ells long, four broad, and protruding five or six
inches above ground, is pointed out as the cradle in
which Rama was born, as the seventh avatar of
Vishnu; and is accordingly abundantly honoured by
the pilgrimages and devotions of the Hindoos."
2567
2623. The factum that in the premises within the inner
courtyard, Hindus used to worship for hundred of years has been
admitted by the alleged keeper of the disputed structure namely,
Mohammad Asgar who in his complaint application dated 30
th
November 1858 (Exhibit No. 20, Suit 1) has said:


- i- - -ii i ri lii i rni ii
r r i n i (Hindi Transliteration by the
Parties)
"Previously the symbol of Janam had been there for
hundreds of years and Hindus did puja." (E.T.C)
2624. The first document, which mention about the
worship in the disputed structure by Muslims also is P.
Carnegi's Historical Sketch (supra) published in 1970 where
he has mentioned:
"It is said that up to that time the Hindus and
Mahomedans alike used to worship in the mosque-
temple. Since British rule a railing has been put up
to prevent disputes, within which in the mosque the
Mahomedans pray, while outside the fence the
Hindus have raised a platform on which they make
their offerings."
2625. In "Gazetteer of Oudh" by Mr. W.C. Benett
(1877) (Book No. 11) (Supra) what was observed by Carnegy
has been repeated verbatim as is evident from the following:
"It is said that up to that time the Hindus and
Muhammadans alike used to worship in the mosque-
temple. Since British rule a railing has been put up to
prevent disputes, within which, in the mosque, the
2568
Muhammadans pray; while outside the fence the Hindus
have raised a platform on which they make their
offerings."
2626. Same thing was repeated in A.F. Millitt's "Report
on Settlement of Land Revenue of the Faizabad" (supra)
(para 669); "Fyzabad A Gazetteer being Vol. XLIII of the
District Gazetteers of the United Provinces of Agra and
Oudh" (supra) (at page 174); Fyzabad-A Gazetteer being
Volume XLIII of the District Gazetteers of the United
Provinces of Agra & Oudh" (1928) (supra) (at page 180)
2627. In "Uttar Pradesh District Gazetteers-Faizabad"
(1960) (supra), however, there is slight difference and it says as
under:
"Attacks and counter-attacks continued, culminating in the
bloodshed of 1855 under the leadership of Maulvi Amir Ali.
As a result, in 1858 an outer enclosure was put up in
front of the mosque and the Hindus, who were forbidden
access to the inner yard, had to perform their puja on a
platform outside. Since 1949 the position has changed and
the Hindus have succeeded in installing the images of
Rama and Sita in the mosque owing to which the spot has
become the object of much litigation. Now the inner yard is
protected by an armed guard and only a few Hindu pujaris
(priests) are allowed access to the inner sanctum."
2628. The facts mentioned by P. Carnegy recognise this
fact that so far as the Hindus are concerned, their visit and
worship at the disputed site and disputed structure continued
unabated and uninterrupted despite having been raised threat a
structure which was known and treated by the local people as
Mosque. Even the new structure did not in any manner
2569
influenced the belief and faith of Hindus on the disputed area.
This continued to constitute core of their belief and faith about
birthplace of Lord Rama, its continued sanctity, status and piety
and that it had not lost merely on account of that construction.
That is how their worship continued throughout.
2629. After 1956-57, when partition wall was raised, the
administrative intention was that Hindus should stay in outer
courtyard and not enter in the inner courtyard but in fact that
could not accomplish as is evident from several complaints
made by Mohammad Asgher, self claimed Mutwalli of the
Mosque in dispute.
2630. If we look the entire issue in the light of the above
facts, we find that there was no occasion for the plaintiffs to feel
aggrieved that on a particular date, any right has accrued to sue.
Article 58 of LA 1963 provides the period of limitation, which
is to commence from the date right to sue first accrued. Unless it
is shown as to when right to sue first accrued, the suit in
question cannot be thrown on the ground of limitation. While
considering Issue No. 3 (Suit-4), we have already discussed that
right to sue does not mean a mere fanciful apprehension but it
ought to be a substantive threat to the very sustenance of the
plaintiff concerned leaving with him no option but to approach
the Court, failing which he is bound to loose all kind of his
interest. It may happen that in a particular case, unsubstantial
occasions may arise frequently pursuance whereto if a person
files a suit asserting that the same has given him an occasion to
sue, the suit may not be dismissed on the ground that
apprehension or the possible injury is so negligible that he/she
ought not to have filed the suit. That is the choice of the
plaintiff, but, in our view, the "right to sue" accrued for the first
2570
time would be when there is a substantial threat necessitating
the person concerned to seek remedy and only then it can be
said that the limitation would start running which shall not stop
thereafter. In the present case, the defendants have not been able
to show any such occasion. Therefore, we are of the view that
the plaintiffs cannot be non suited on the ground of limitation.
In these circumstances, to avoid any misconception in the mind
of others and to place the record straight, if they approach a
Court of law seeking a declaration of their rights which are
continuously, unabatedly have continued, it cannot be said that
the suit is impermissible by attracting any particular provision of
the limitation. It cannot be said that the Suit-5, in the above facts
and circumstances, is bad on account of the statute of limitation
and any provision thereunder.
2631. There are some more angles. The first, the Gods are
described in view of the hymns and meaning, human attributes
in necessity of the human mind and language but it does not
necessarily follow therefrom that images of these Gods clothe in
such human attributes were artificially prepared and
worshipped. It is to the Puranik age that we owe their existence.
2632. In the ancient Hindu scriptures, temples or idol's
property is said not to be lost even if enjoyed by strangers for
hundreds of years. Katyayan says that temple's property is never
lost even if it is enjoyed by strangers for hundreds of years. In
P.V.Kane's History of Hindu Shastra Vol.3 it is said that even
the king cannot deprive temples or their properties. Under
Hindu laws though right based on prescription to some extent
are provided but they are not applicable in the case of women,
minor and king's property.
2633. "Manusmrti", Discourse VIII, Verse CXLIX (149)
2571
says:
"A pledge, a boundary, minor's property, a deposit, a
property enjoyed by favour, women, King's property, and
the property of a Vedic scholar are not lost by adverse
possession."
2634. In "Brihaspati Smriti" says, "Female slaves can
never be acquired by possession, without a written title; nor does
possession create ownership in the case of property belonging to
a King, or to a learned Brahman, or to an idiot, or infant.
2635. "The Naradasmrti", says:
"73. A pledge, a boundary, the property of children,
unsealed and sealed deposits, women, the King's property,
and a learned brahman's property are not lost through
possession."
"75. The property of women and kings is never lost,
even if it is, possessed without title for hundreds of years."
2636. "Yagyavalkyasmritih", says:
ilii -i li iil i|
nii llii-|iliii i l||zr||
iiii ili (i), |-i, li , ( - l ,) , i
i i , lli, ii, -| i , il i i ,ii i
| i n iin i i| -i-| lii r| r| ri n
r||zr||
2637. "Shukranitih"Chapter IV, Part 5, Verse 225 says:
ili |-i ii li i lli-nii|
i- il- iin iln||
lr| i i| n; -n , ni | |-in i l-, i i l n i
i , ii r, -| i , ii nii i -| i r -i i
i r| i ; i r| ni|
2638. It may be noticed that the Sanskrit word 'i' has
been defined in Sanskrit-English Dictionary of Sir Monier
2572
Monier Williams, first published in 1899, corrected Edn. 2002,
reprint Delhi 2005 by Motilal Banarsidass Publishers, Delhi at
page 728 and reads as under:
i- young, childish, infantine, not full-grown or
developed (of persons and things); simple, foolish, child,
boy (esp. one under 5 years); a minor (minors are
classified as Kumara or boys under 5 years of age; Sisu
under 8, poganda from the 5
th
to the end of the 9
th
or till
the 16
th
year, and kishora from the 10
th
to the 16
th
year); a
fool, simpleton
2639. The first meaning which is applicable on persons
and things includes within its ambit a "deity" also.
2640. In the area of Oudh, British Rule came into force in
1856 and not prior thereto. During Muslims Rulers, Governors
were appointed but no material has been brought to our notice
that in the matter of Hindu Laws, any interference was made by
the Islamic Rulers. It is mostly in the administration of criminal
justice, to some extent, there was an interference and control by
Islamic Rulers otherwise the people used to approach the locally
constituted bodies like Gram Panchayat etc. for resolving their
disputes in accordance with their personal laws. It do not appear
to be interfered or altered by the command of the king.
2641. When Subedar of Oudh declared himself an
independent ruler and conferred Nawab Wazir in the second half
of 18
th
Century, then also with respect to the dispute redressal
system there was no major change and the personal laws and
tenets continued to occupy high position as it was. In 1801, East
India Company entered into a treaty with the Nawab of
Lucknow but even that treaty did not cause any impact upon the
personal laws of Hindus within the territorial area of Oudh
2573
province with which we are concerned. It is only in 1856 AD,
when the area of Oudh or the Oudh province was annexed to the
East India Company, the Britisher's Laws came to be imposed
upon the citizens of Ayodhya and Faizabad. But then also so
long as the matters were not caused by statutory laws, the two
communities continued to be governed by their personal laws.
2642. The first Limitation Act was enacted in 1859 AD
which did not contain any provision regarding prescription or
extinction of right which was introduced vide Limitation Act
1871. In 1876, in the peculiar nature of the territory of Oudh as
also considering different circumstances prevailed thereat, Oudh
Laws Act, 1876 was enacted which was applicable only to
Oudh. Section 3 thereof talks of the statutory law to be
administered in Oudh and says as under:
Statutory law to be administered in Oudh.- The law to
be administered by the Courts of Oudh shall be as
follows:--
(a) the laws for the time being in force regulating the
assessment and collection of land- revenue;
(b) in questions regarding succession, special property of
females, betrothal, marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions or any religious usage or
institution, the rule of decision shall be-- (1) any custom
applicable to the parties concerned which is not contrary
to justice, equity or good conscience, and has not been, by
this or any other enactment, altered or abolished, and
has not been declared to be void by any competent
authority;
(2) the Muhammadan law in cases where the parties are
2574
Muhammadans, and the Hindu law in cases where the
parties are Hindus, except in so far as such law has been,
by this or any other enactment, altered or abolished, or
has been modified by any such custom as is above referred
to:
(c) the rules contained in this Act:
(d) the rules published in the Official Gazette as provided
by section 40, or made under any other Act for the time
being in force in Oudh:
(e) the Regulations and Acts specified in the second
schedule hereto annexed, subject to the provisions of
section 4, and to the modifications mentioned in the third
column of the same schedule:
(f) subject to the modifications hereinafter mentioned, all
enactments for the time being in force and expressly, or by
necessary implication, applying to the territories which,
immediately before the 1st November, 1956, were
comprised in Part A States and Part C States or Oudh, or
some part of Oudh:
(g) in cases not provided for by the former part of this
section, or by any other law for the time being in force, the
Courts shall act according to justice, equity and good
conscience.
2643. Section 16 thereof provides for Rule of Limitation
and reads as under:
16. Rule of limitation.- The Judicial Commissioner's
Circular No. 104 of July, 1860, shall be held to have been
a notification within the meaning of section 24 of Act 14 of
1859, and such Act shall be deemed to have been in force
in Oudh from the fourth day of July, 1862; and all
2575
orders and decrees passed under the rules contained in the
said Circular, or under the said Act, shall be deemed to
have been passed under a law in force for the time being.
Nothing in this section affects the provisions of section 102,
104, 105, 106, 107 and 108 of the Oudh Rent Act (19 of
1868) with regard to the limitation of suits under that Act.
2644. Thus the personal Laws in the matter of religious
usage of institution and also in the matter of minority etc. were
to continue. Hindu idol or the deity was always treated as a
person to be protected by the king like a minor or women and
that legal position has not been shown to us having gone under
change by any authority by any point of time. We have some
earliest judgments on this aspect and do find nothing contrary.
2645. In Prosunno Kumari Debya & Anr. Vs. Golab
Chand Baboo 1875 L.R. 2 I.A. 145, a decision of Privy Council
dated 3
rd
February, 1875 in para 18 said:
The authority of the sebait of an idol's estate would
appear to be in this respect analogous to that of the
manager for an infant heir, ...
2646. It also held in para 14 that the debuttor property in
Hindu Law is unalienable:
There is no doubt that, as a general rule of Hindu law,
property given for the maintenance of religious worship
and of charities connected with it is inalienable.
2647. However, in the interest of the idol, for its
maintenance etc. it found that if the Shebait, the person
responsible for managing the affairs of the idol, is not given
power to deal with the property to the extent it is required for
meeting necessities of the deities, that would be against the
interest of the deity and its sustenance. In para 19 of the
2576
judgment, accordingly, it says:
It is only in an ideal sense that property can be said to
belong to an idol; and the possession and management of it
must in the nature of things be entrusted to some person as
sebait, or manager. 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 the
necessary funds to preserve and maintain them.
2648. The Privy Council relied on an earlier decision in
Hunooman Persaud Panday Vs. Mmsumat Bdbooee Manraj
Koonweree 6 Moore's Ind. App. Ca. 243 in observing the idol
as 'infant heir'.
2649. Then Division Bench of Calcutta High Court in
Girijanund Datta Jha & Anr. Vs. Sailajanund Datta Jha 1896
ILR 23 Ca1. 645 considered the question as to whether 'Charao'
to the idol would be the property of the priest or shebait or not.
It was noticed that about the religious endowment virtually
nothing has been said in the religious scriptures, may be for the
reason that it was sought to be managed by the person who had
highest respect and belief that they shall deal with the situation
effectively. The court rejected argument that an idol is only an
emblem of God, and offerings made to the God, not for use of
the idol but for the use of the God's creatures and by priests in
particular and said it cannot, we think, prevail in its broad
generality in a Court of law at the present day. Decisions too
clear and authoritative to be doubted or disregarded have
2577
repeatedly laid down that an idol in Hindu law is capable of
holding property, and that property dedicated to an idol
belongs to an idol.
2650. Again in Palaniappa Chetty and Anr. Vs.
Deivasikamony Pandara 1917 L.R. 44 I.A. 147 in para 7 the
Court said:
In Prosunno Kumari Debya v. Golah Chand Baboo L.R. 2
Ind. Ap. 145, 151 the Rajah Baboo, the shebait of an idol, a
man of profligate habits, having spent the income of the
debottar property on his own pleasures, borrowed a sum of
Rs. 4000 from the respondent, and, by a bond and
rahinama, pledged the debottar property for the payment of
this sum. In both these securities it was stated that the
money was borrowed for the services of the idol and the
expenses of the temple. The Zillah Judge before whom the
case was tried held as a fact that the money had been
borrowed and expended for these purposes. Two decrees
were obtained by the respondent, the lender, against the
shebait, each directing that the debt should be paid by the
shebait personally, or else be realized out of the profits of
the debottar land. The appellant, the successor in office of
Rajah Baboo, instituted a suit to set aside these decrees
and have the debottar property released from an
attachment issued in execution of them. The point decided
was that the decrees, being untainted by fraud or collusion,
and having been passed after the necessary and proper
issues had been raised and determined, had the force of
judgments of a competent Court and were binding on the
appellant, the succeeding shebait, who was a continuing
representative of the idol's property. Though the question
2578
was not raised whether the debottar lands themselves could
be sold under the above-mentioned decrees, the passage
from the judgment of Knight Bruce L.J., above extracted,
was quoted, and some observations were made by Sir
Montague E. Smith, who delivered the judgment of the
Board, touching the alienability of debottar land which
have been relied upon. First, the learned judge said :
"There is no doubt that as a general rule of Hindu law
property given for the maintenance of religious worship
and of charities connected with it is inalienable," and
then, after quoting a passage from the judgment of Lord
Chelmsford in a case to be presently referred to, he
proceeds thus: "But notwithstanding that property devoted
to religious purposes is, as a rule, inalienable, it is in their
Lordships' opinion competent for the shebait of property
dedicated to the worship of an idol, in the capacity as
shebait and manager of the estate, to incur debts and
borrow money for the proper expenses of keeping up the
religious worship, repairing the temples or other
possessions of the idol, defending hostile litigious attacks
and other like objects. The power however to incur such
debts must be measured by the existing necessity for
incurring them. The authority of the shebait of an idol's
estate would appear to be in this respect analogous to that
of the manager for an infant heir as denned in a judgment
of this Committee delivered by Knight Bruce L.J." On the
next page he adds : "It is only in an ideal sense that
property can be said to belong to an idol; the possession
and management of it must, in the nature of things, be
entrusted to some person as shebait or manager. It would
2579
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 the necessary funds to
preserve and maintain them."
2651. The status of idol as a minor has not been disputed
or challenged in any authority whether of High Court or judicial
committee/Privy Council in the pre-independent period or
thereafter in the Apex Court. It is only with respect to Section 7
or Section 6, as the case may be, in various statutes of limitation
where special provision in respect to legal disability have been
made, some of the authorities have said that for the purpose of
the aforesaid statutory provision idol cannot be considered 'a
minor' for all the purposes i.e. in perpetuity.
2652. In Kuarmani Singha Vs. Wasif Ali Murza
1915(28) I.C. 818; Rami Kuar Mani Singh Vs. Nawab of
Murshidabad AIR 1918 PC 180; Sarat Kamini Dasi Vs.
Nagendra Nath Pal AIR 1926 Cal. 65 and Deutsch Asiatische
Bank Vs. Hiralal Burdhan & Sons 1918 (47) I.C. 122 it was
observed that Section 6 of the Limitation Act recognises only
three classes of persons being under legal disability namely
minor, insane and idiot and thus it cannot be extended any more.
A Division Bench of Patna High Court in Naurangi Lal &
Others Vs. Ram Charan Das AIR 1930 Patna 455 noticing the
above decisions and also that there appears to be some
deficiency in the existing law of limitation, held that the Court is
bound by the said decisions and therefore, benefit of section 6
2580
cannot be made available to a minor. This decision of Patna
High Court was set aside in appeal by the Privy Council in
Mahanth Ram Charan Das. Vs. Naurangi Lal (1933) L.R. 60
I.A. 124.
2653. What we find is that three kinds of legal disability
provided in the Limitation Act do not talk of the nature of
person whether legal or natural. We have referred to some of
ancient Hindu scriptures to throw some light on the concept,
status and position of idol in Hindu religion for the purpose that
the idol was treated to be in the position of a minor not because
of the recognition or declaration by British Indian Courts about
its being a legal person or juridical person but because of the
then existing and continuing position of the idol in Hindu law
being treated as minor and capable of holding and acquiring
property and in furtherance thereof, its recognition as legal
person was granted. Therefore, the idol enjoyed the status of a
minor not by virtue of subsequent declaration of law but on
account of the recognition of its pre-existing status before the
application of the codified laws during British regime whether it
was prior to the take over by the British Government or
subsequent thereto.
2654. No decision has doubted the status of idol as a minor
or infant. Then the next question comes up if it enjoys the status
of minor or infant, can it be said that this status is good for a few
purposes and not for others, and, if so, what is the logic or
rationality of this differentiation and the basis thereof.
2655. It is true where an idol's property is being looked
after by a Shebait, the law expected him to discharge duties
effectively and honestly. Similarly, beneficiaries of the deity i.e.
the worshippers can also take appropriate action for protection
2581
of idol and its property, as and when they found something
wrong. But in a case where both do not act to the degree of
expectation, or where there is no Shebait at all, and the
worshippers simply confine their attention to the benefits and
not to the moral duties of protecting the idol's property etc., can
it be said for that reason, the idol shall suffer though it is an
admitted position that it being a legal person or a juridical
person in law cannot act on its own. The maxim contra non
valentem agere non currit praescriptio (Prescription does not
run against a person who is unable to act) comes into effect and
should be made applicable in the case of idol. We find no reason
as to why in such a case it should not be observed. Here we are
not concerned with all the juridical persons or legal person and
it is not necessary for us to consider whether every juridical
person or legal person would enjoy the status of minor or infant
or not. Suffice it for us to concentrate only to the case of idol or
deity in respect to Hindu law where its status is well recognised
under the ancient Hindu scriptures which had continued and
recognised as such by the British Indian Courts also. The only
exception is that a restricted alienability of the debuttor's
property has been allowed and that too for the benefit of the idol
so that the necessary expenses and funds for maintenance of
deity may be available without any obstruction. In fact this
restricted alienability of debuttor's property is consistent with
the rights of minor.
2656. This is how in various authorities, status of 'deity' as
minor has been considered. In K. Manathunainatha Desikar
Vs. Sundaralingam AIR 1971 Madras 1, a Full Bench of
Madras High Court in para 20 of the judgment, observed:
"The deity, a juristic entity, is the proprietor who never
2582
dies but labours under physical disability which renders it
necessary that its interests should be looked after in
perpetuity. ...."
2657. Following the decision of the Apex Court in
Bishwanath Vs. Sri Thakur Radha Ballabhji, AIR 1967 SC
1044, a Single Judge of Rajasthan High Court (Hon'ble
Dr.B.S.Chauhan as His Lorship then) in Temple of Thakurji
Vs. State of Rajasthan & Ors. AIR 1998 Rajasthan 85 in para
10, said:
"there is no doubt that by fiction, the deity/idol is to be
treated as minor and physically disabled person. It has
been recognised by the Court from time and again ....."
2658. The Court followed an earlier decision of Rajasthan
High Court in Ram Lal (Supra).
2659. A Single Judge in Trilochan Das Adhikari & Anr.
Vs. Simanchal Rath & Ors. 1994 (11) Orissa Law Reviews
602 has also said:
"Defendant No.9 (Sri Madan Mohan Swamy Bije) is a deity
who is a perpetual minor."
2660. The plaintiffs 1 and 2 are deities and juridical
persons, as we have already held. A juridical person cannot act
in the materialistic world on its own but has to be represented by
a natural person. In the context of a Hindu deity, normally it is
represented and managed by a Shebait who has the right to
manage the affairs of the deity and in furtherance thereof take
all such actions, as are needed for discharge of its obligations of
maintenance of a deity, which includes right to file suit or be
sued also. This, however, does not mean that the basic right
vested in the deity stands disappeared or extinguished and the
deity becomes, in its status, subordinate to Shebait as if right of
2583
protection which every owner possess stands transferred to a
person who has authority to manage and possess on behalf of
deity. These two things are different and on this aspect some of
the authorities we have already discussed while considering
Issue No. 3 (Suit-4) and issues relating to juridical personality of
plaintiffs 1 and 2 (Suit-5). Though it may be a bit repetition at
this stage also but we find no escape therefrom in order to avoid
any confusion in the matter and also realising the importance
and wide ramifications. It is rather more important as the
learned counsels for the Muslim parties have raised serious
doubt. Thus also, it needs to be dealt with carefully in detail
hereat despite bearing criticism of repetition which normally a
Court of law avoid.
2661. An idol or deity in Hindu law enjoys a different
status and class in itself. As we have already noticed, the Apex
Court In Jogendra Nath Naskar (supra) and Deoki Nandan
Vs. Murlidhar (supra) recognised that an idol is a juridical
person capable of holding property. A Full Bench of this Court
in Jodhi Rai Vs. Basdeo Prasad (supra) held that a suit
respecting the property in which the idol is interested is properly
brought and defended in the name of the idol, although ex-
necessitate resi the proceedings in the suit must be carried on by
some person who represents the idol usually the manager or
shebait.
2662. To be more precise, it is not disputed before us that
an idol/deity is like an infant or minor and, therefore, has to be
acted through a guardian but what is contended is that the
provisions specially made for minor like Order XXXII Rule 1
C.P.C. and Section 6 LA 1963 would not apply to the case of an
idol/deity since it is not a minor in perpetuity.
2584
2663. Let us consider first the authorities cited against the
proposition that a deity is not a minor in perpetuity as to what
reasons have been assigned therein. We intend to proceed with
Division Bench decision of this Court in Chitar Mal Vs.
Panchu Lal (supra). This has been relied on in support of the
contention that an idol is not under disability under Section 7 of
the Limitation Act (Section 6 in the existing Act) since it cannot
be deemed to be a perpetual minor for the purpose of limitation.
This Court relied on two decisions of Privy Council in
Jagadindra Vs. Hemanta (supra) and Damodar Vs. Lakhan
Das (supra). The former is a decision rendered in 1904 and later
was handed down in 1910. These two decisions have been
followed in some other cases subsequently also. Therefore, it
would be necessary to consider them also in detail.
2664. In Chitar Mal Vs. Panchu Lal (supra) one Ram
Narain brother of Jai Narain made gift of his share in a joint
house property to the idol of Shri Chaturbhujji Maharaj installed
in a temple in Ajmere. This gift was executed on 9
th
January,
1903. The Manager of the temple sold the gifted portion to Smt.
Bishni, widow of a son of Ram Narain. On 5
th
December 1908
Chitar Mal, son of Jai Narain sued for a declaration that the
property in suit consisting of half the house formerly owned by
his father was trust property and transfer of the said property to
Smt. Bishni was null and void and that the property be made
over to the trustees of the temple of Shri Chaturbhujji after
dispossessing the defendant. The suit was filed after 12 years
from the date the Manager of the temple sold the gifted portion
to Smt. Bishni. It was pleaded in para 11 of the plaint that bar of
limitation is saved by virtue of Section 10 of the Limitation Act.
This plea was decided against the plaintiff and Section 10 of the
2585
Limitation Act was held inapplicable. The matter came up
before this Court in a reference made by the District Judge
formulating three questions under Section 17 of Regulation No.
1 of 1877 Regulations. The applicability of Section 10 was not
subject matter of reference, as is evident from following:
The suit was instituted more than 12 years after the date
of sale, so it was pleaded in para. 11 of the plaint that
under the provisions of Section 10 of the Limitation Act the
bar of limitation was saved. This plea was decided against
the plaintiff and the ence to us does not cover that point.
2665. Three questions formulated by the lower Appellate
Court in Chitar Mal (supra) where as follows:
(1) Whether the deed, dated the 17th April, 1905,
could constitute an alienation of the dedicated property
(318Twaqf) which was under the management of the
Marwari faction of the Biradri of Agarwals at Ajmere and
thereby give rise to adverse possession.
(2) Whether Respondent No, 1 could acquire any title
to the said property.
(3) Whether in the circumstances of the present case
Respondent No. 1 could claim the benefit of the law of
limitation especially in view of paras. 1 and 2 of he written
statement.
2666. In respect to issue no. 2, the argument put forth on
behalf of the plaintiff, Chitar Mal, before the Court was that idol
suffered the disability of perpetual minority, so any suit by idol
at any period of time after the date of transfer would be saved
from bar of limitation under Section 7 of LA 1908. It is this
argument which was to be dealt with by this Court in the facts of
that case.
2586
2667. Reliance was placed on the comments of a learned
author in Sastri's Hindu Law, 5
th
Edn., Chapter XIV on page
726 which says:
As regards limitation it should be considered
whether S. 7 of the Limitation Act is not applicable to a suit
to set aside an improper alienation by a shebait 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.
2668. It was not disputed before the Court that idol
enjoyed the status of a minor. This Court also noticed that a
transfer by minor is void ab-initio and in that case the question
of proper or improper alienation would not arise. For this
purpose reference was made to Mohori Bibee Vs. Dharmodas
Ghose (1902) 30 I.A. 114 (P.C.). Thereafter, the Court
proceeded to consider two judgments of the Privy Council in
Jagadindra Vs. Hemanta (supra) and Damodar Vs. Lakhan
Das (supra) so as to refute the argument of the plaintiff's
counsel on the applicability of Section 7 of the Limitation Act in
that case.
2669. In the first case, i.e., Jagadindra Vs. Hemanta
(supra), what we find is, at the time of wrong alienation of
property, the person entitled to manage the dedicated property
of the idol, i.e., Shebait himself was a minor. After attaining
majority, he brought a suit for restoration of the property and
this suit was filed within three years from the date of attaining
majority by the Shebait. Privy Council held the suit within time
by referring to Section 7 of Limitation Act observing that it is in
ideal sense the property is owned by the idol but in effect the
right to sue and be sued vests in Shebait or Manager of the
2587
property and, therefore, if he was minor at the time when cause
of action with respect to dedicated property arose, on attaining
majority, he could have filed suit. It appears that in some of the
later cases, these words that it is only in ideal sense that the
property vests in the idol and being a juridical person, he can
sue or be sued but in effect the right is vested in Shebait have
been read by as if the Shebait has snatched away the vested right
and status of the idol and everything would only be governed by
the status of Shebait with respect to the property in debuttar. In
fact, in subsequent authorities, where the above decision was
relied, the Court read it by saying that the right is vested in
shebait and not in idol. This negative declaration of the right of
a idol to file a suit or not in its own name was neither in
consideration before the Privy Council in Jagadindra Vs.
Hemanta (supra) nor any such declaration was made but it
appears that the above sentence was read as a natural corollary
that the idol loses any right, whatsoever, to sue or be sued. With
great respect, we find that it is this addition of the words which
has resulted in some authorities denying something to idol
which otherwise probably never intended by the Privy Council.
2670. We find it difficult to chew this decision for more
than one reason. The observations are in respect to the
practicability of the thing since by its very nature, the idol
neither can move nor can act in a particular manner nor can
think or understand as to what is good or bad, being a legal
person and not a natural person. The faith of the people on the
power and status of idol is well known and is beyond the pale of
judicial review. It is the spirit and the existence of the Supreme
Being which is worshipped in the symbolic form of image but
otherwise the existence of Supreme Being is not dependent on
2588
the existence of the images or idols. The worshippers believe in
existence of such Supreme Being which is capable of providing
all kind of happiness, salvation etc. to the worshipper but then in
respect to the worldly affairs, the rights, obligations, privileges
whatever may be of the idol, they have to be looked after by
some natural person. To this extent, the position is same in
respect to all legal persons. Their right of sue or be sued is
always looked after and acted upon by an individual or group of
individuals of natural persons. It does not mean that every thing
which is vested in the legal person, can be deemed to be actually
vested in the individual natural person to the effect of excluding
the legal person to any extent or divesting him of his own right.
Besides every legal person or juridical person whether is a
minor or not, is a matter which is yet to be considered but qua a
Hindu idol, it can not be disputed that in Hindu Laws, it has
always been treated a minor, and this has neither ever been
doubted nor found otherwise. Earlier British India Courts
normally used the word 'Infant'.
2671. In the matter of idol, one can presume a situation
where there is no Shebait or Manager or an identified person for
managing the affairs. By its very nature, the people on their own
go and worship and the procedural aspect of worship is looked
after by a section of people on their own. For example where
Hindus go for worship at a place where there is no individual
who work as Shebait but a section of the people called Pandas
etc., who, on their own take care of the procedural aspects of
worship and for that purpose get remuneration called Dakkshina
or Dan. If a property dedicated to such place in the name of the
idol or deity exist thereat and there is no identified Shebait or
Manager, would it mean that the property shall not vest in
2589
anyone and that if somebody occupy the dedicated property of
idol unauthorizedly, the plea of adverse possession can be taken
against the idol which being not a person cannot take care of
property of its own.
2672. Similarly, even where a Shebait or Manager is there,
but if he or she itself indulge in some unauthorized act or
mismanagement of the property of the idol and wrongly alienate
or allow a possession to continue in collusion with a third party,
can it be said that the idol is bound by such act of the Shebait
and after lapse of certain period, a well wisher of the idol or the
idol itself though a bonafide worshipper cannot take action on
account of the application of provisions of limitation.
2673. In both the two cases of Privy Council which were
relied on in Chitar Mal (supra), we find that there was a
Shebait for managing the affairs of the property of the idol. He
entered into certain transactions of dedicated property of idol
with third person. It was not a case where the Court found that
the act of Shebait was unauthorized in the sense that it was not
initiated for the benefit of the idol. No case of fraud, collusion
etc. found. The attempt on the part of the parties, who initiated
litigation later on, was to wriggle out of such transaction of
property which was entered by earlier Shebait within their own
rights on behalf of idol.
2674. To our mind, a contract with minor is void but
where the guardian of a minor or guardian of an infant has dealt
with the property of minor/infant and alienate some part of the
same for the benefit of the minor or infant, such transaction of
guardian has always been upheld otherwise very purpose of
having a guardian or caretaker would stand frustrated and may
result in serious consequences to the very existence and
2590
subsistence of the minor. In none of the two cases of the Privy
Council which were relied on by the Division Bench in Chitar
Mal (supra), these questions were involved and as a matter of
proposition of law, the Privy Council in none of these two cases
has said that an idol cannot be treated to be a perpetual minor.
To us it appears that this inference has been read in by the Court
in the above decisions considering the provisions of limitation
relied by the Privy Council in the two cases but that was in the
context of the facts of those cases and not as a matter of legal
proposition as to whether idol is a perpetual minor or not.
2675. Though we are not doubting the correctness of the
decision of the Privy Council nor it is necessary for us to
suggest that the judgments of the Privy Council are not binding
upon us in the absence of otherwise law declared by the Apex
Court, but it would be necessary to consider as to what was the
issue before the Privy Council and what has been decided by it
and whether it constitute a binding precedent upon this Court.
2676. In Jagadindra Vs. Hemanta (supra), the Calcutta
High Court held that the idol being a juridical person is capable
of holding property. Limitation, therefore, would start running
against it from the date of transfer and a suit filed beyond the
period of limitation from that date is barred by limitation. It
does not appear that the question as to whether idol is a minor or
not was considered by the Calcutta High Court. The Privy
Council in absence of any such issue before it, obviously had no
occasion to look into this question but then from the facts of that
case it found that the Shebait himself was a minor at the time
when the property in suit of idol was transferred. He had filed
suit on attaining majority within the period of three years as
contemplated under Section 7 of the Limitation Act. Privy
2591
Council held that since the person who was managing the affairs
of the idol himself was minor, considering the peculiar
circumstances that a legal person itself cannot take action but
has to be acted by a natural person who also was under
disability, Section 7 would apply to such natural person and held
the suit within time.
2677. The matter in effect was decided in favour of the
idol though the reason may be different. But a strange question
arises. Can there be a guardian of a minor who himself is a
minor. The law of the land on the date, as applicable to minor,
does not contemplate a guardian or a care taker of a minor who
himself is minor. In other words, it is inconceivable that a minor
can be assigned duties to take care and manage the affairs of
another minor. Such a situation may have arisen more than
hundred years back and what were the reason behind it, we need
not to go into that. We are satisfied that such a situaiton cannot
arise in law of independent India governed by the Constitution
where such right of management can be exercised by a guardian
who has to be, by necessity, a major and not a minor. Secondly,
the judgment in Jagadindra Vs. Hemanta (supra) nowhere
says that an idol is not minor, what to say of perpetual minor or
not.
2678. Now we come to the second case of Damodar Das
Vs. Lakhan Das (supra). There it appears that the idol again
was being looked after and managed by a Shebait, i.e., Senior
Chela or Mahant of the Math. Under an agreement with another,
who has been termed as Junior Chela, half of the property of the
Math was transferred to him. The successor in the office of
Senior Chela/Mahant of the Math, filed a suit against Junior
Chela for recovery of the transferred half of the property. This
2592
suit was filed after twelve years from the date of transfer. Privy
Council held it barred by limitation on the ground that from the
date of agreement, the possession of the property by Junior
Chela, by virtue of terms of agreement, was adverse to the right
of the idols and that of the Senior Chela representing that idol.
Therefore, the suit is barred by limitation. Here again what we
find is that the property was transferred to Junior Chela by
Senior Chela, i.e., Shebait of the idol under an agreement. While
observing that the possession became adverse from the date of
transfer under the agreement, with great respect we find that the
very ingredients of adverse possession were not being in issue
before the Court hence the same were not addressed inasmuch
whether such transfer can constitute adverse possession or not, it
does not appears to be an issue raised, argued and decided
before the Privy Council. The Apex Court in a catena of
decisions, which we have considered in detail, while discussing
the issues relating to possession/adverse possession, has held as
to what constitute adverse possession in law. It is a well settled
dictum that in order to constitute adverse possession there has to
be a hostile possession with the animus possidendi, open,
peaceful and continuous. An intention to possess the property
against the owner against his interest is one of the necessary
ingredient held by the Apex Court in a catena of decisions to
constitute adverse possession. In Damodar Vs. Lakhan Das
(supra), the property was transferred to Junior Chela under an
agreement by a person who was competent and duly authorized
to manage the property of the idol, a minor. The intention on the
part of the transferee to hold the property adverse against the
owner obviously was lacking. Junior Chela got possession under
an agreement that was a permissive possession. This aspect has
2593
not been raised, argued and decided. It appears that proceeding
on the assumption that there existed an adverse possession on
that date, the matter has been decided. In the matter of adverse
possession, we are bound by the law laid down by the Apex
Court in view of Article 145 of the Constitution and in such a
case, the judgment of Privy Council is not binding on this Court.
2679. Moreover, it does not appear that the questions as to
whether the idol is a minor or whether Section 7 has any
application in the matter were at all raised and decided. On the
contrary, the Court has upheld the finding of the High Court that
in law, the property is vested not in Mahant, but in the legal
entity, i.e., the idol and the Mahant is only its representative and
manager. Once this finding is accepted, the transfer of a
property unauthorizedly or possession of a property by another
even otherwise can not be treated to be adverse to the idol, a
minor, when it cannot act on its own and protect itself from such
unauthorized act. In any case, it need not be necessary to go into
this aspect for the reason that if a transaction has been made by
a proper and validly appointed Shebait or a person about whose
status there is no dispute, on behalf of minor, one may not
wriggle out of the transaction on the ground that the contract
was on behalf of minor and, therefore, void for the reason that
the guardian of a minor can enter into certain transactions for
the benefit of minor. The said proposition has nothing to do
where it is not shown that the minor or the idol has any Shebait
at all to look after its interest.
2680. In our view, the decisions of this Court in Chitar
Mal Vs. Panchu Lal (supra) has extended the two decisions of
the Privy Council in Jagadindra Vs. Hemanta (supra) and
Damodar Vs. Lakhan Das (supra) to the extent of a
2594
proposition in so many words which do not appear to have been
laid down therein and, therefore, with respect to the Hon'ble
Judges, we find ourselves unable to agree with the same.
2681. Relying on Jagadindra Vs. Hemanta (supra) an
argument was raised in Shree Mahadoba Devasthan Vs.
Mahadba Romaji Bidkar and others, AIR 1953 Bombay 38
that since the right to file suit is vested in the shebait or manager
as observed by the Privy Council in Jagadindra Vs. Hemanta
(supra) hence a suit by idol is not maintainable. This was
exactly what has been read by some of the High Courts in the
above two judgements which was sought to be argued before the
Bombay High Court also. The Division Bench, however,
rejected the submission. It said that it is only an extension of the
principle of responsibility from the image or idol of the
manager, or to use the other words, from the principal to the
agent to vest the right of protection of the property which is
incidental to the right of possession and management thereof by
way of filing a suit in connection with the same, in the shebait.
The extension of the right in the shebait however does not mean
that the right which the image or the idol as a juridical person
has by virtue of its holding the property to file a suit in regard
thereto is by any process eliminated.
2682. Be that as it may, in our view, reference to Section 6
of LA 1963 need not at all be necessary. It is not required in this
case to go into the question whether a deity suffers a "legal
disability" to attract the aforesaid provision or not. The matter
can be decided without going into this aspect and without
considering the question as to whether the judgements taking the
contrary view, which one thereof is correct and ought to be
followed by us. The nature of the Hindu idol/deity and its
2595
various facets have been considered by us while dealing the
issue pertaining to juridical personality and above also. What we
are now going to discuss may at times reflects on repetition to
what we have already said but in this case we have not much
bothered about it for the reason that the issue involved is of
extraordinary nature and we do not want to leave any occasion
or doubt or confusion particularly when the judgement in this
case is already so voluminous.
2683. We may crystalise hereat what are settled notions
qua an idol/deity, its property as also the rights powers and
duties of a Shebait as argued by the other side also. They are:
(i) A Hindu idol duly consecrated is a juridical person, can
acquire property, sue and be sued and enter into
transactions with others like a natural person;
(ii) By its very nature since an idol or deity is a fictitious
person cannot act on its own. It has to work on being
represented by a natural person. In the case of Hindu idol,
it is the Shebait who has right to possess and manage
property of the idol and also to discharge duties of daily
services to be rendered to the idol. Its position is that of a
custodian of a property and the idol itself but it does not
mean that he is the owner. In case of necessity, i.e., for the
benefit of the idol i.e. for necessity, the property of the
idol can be alienated by the Shebait but no more no less.
The Shebait is a peculiar kind of office with which attach
duties and obligations. Only in a very restricted sense it
can be transferred;
(iii) Qua the property of the idol, the position of Shebait is
that of a manager or guardian of an infant or minor;
(iv) The position of idol as a minor though recognised for
2596
some purposes but not for all purposes since they are
considered to be a major from the date of its consecration
but for entering into transactions with natural persons it
needs to be represented by a natural person, i.e., Shebait
and none else; (5) The right to file suit for the benefit or
on behalf of the idol vests in a Shebait but with certain
exceptions namely, where the Shebait is guilty of
maladministration etc. or where there is no Shebait, in
such a case a worshipper as a next friend may bring a
cause representing the idol but not otherwise; (6) The
difference between Shebait and next friend is that a
Shebait is under an obligation to take such steps as are
necessary for the protection of an idol but a worshipper
may be permitted to represent idol for its benefit but has
no legal obligations as such to do so. Moreover, a
worshipper must be such who is a beneficiary and not
more benevolent.
2684. It is in the context of these principles we may
consider the question of limitation vis a vis Section 6 of LA
1963 but before doing so we feel it expedient to have a glance
over some of the relevant well considered authorities throwing
light on the above propositions.
2685. Deity is 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. In Rambrahma Chatterjee Vs. Kedar Nath
Banerjee (supra) Mookerjee, J. recognised the above concept of
Hindus and observed that the normal type of continued worship
of a consecrated image includes the sweeping of the temple, the
process of smearing, the removal of the previous day's offerings
of flowers, the presentation of fresh flowers, the respectful
2597
oblation of rice with flowers and water, and other like practices.
It also observed that 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 religious customs of Hindus in
respect to Hindu idol have been recognised by the Court of Law
life a juristic person under the English system. A juristic person
under English system has no body or sole. It has no rights
except those which are attributed to it on behalf of some human
beings. But in the concept of Hindus belief the lump of metal,
stone, wood or clay forming the image of Hindu idol is not a
mere moveable chattel. As already observed it is conceived by
Hindus as a living being having its own interest apart from the
interest of its worshippers. The observations of Mookerjee, J. in
Rambrahma Chatterjee Vs. Kedar Nath Banerjee (supra)
were approved by the Judicial Committee in Pramath Nath
Mullick Vs. Pradhyumna Kumar Mullick (supra). It can thus
be said that a Hindu idol/deity is a juristic person of a peculiar
type.
2686. The various services of a deity, some of which we
have referred above, cannot be performed or observed by deity
itself for the simple reason that it is not a natural person.
Besides, the daily services of the deity in a case where the deity
has been dedicated with some property moveable or
immoveable, its possession, management and protection is also
needed to be cared by a natural person. After dedication of the
property to the deity the proprietary title to the property is
vested in the idol. But because of its very nature it may not
actually possess or manage the said property hence the need of
2598
Shebait arises. It is also a well recognised custom amongst
Hindus.
2687. Sheba (i.e., in Hindi 'Sewa') means 'service' and the
person who render it is called 'Shebait' (i.e., in Hindi 'Sewaiat'),
i.e., "one who render service".
2688. It is true that the ancient Hindu scripture is mainly
silent on the subject of Shebaity rights and duties but in the last
almost one and half century and more, a lot of judicial
precedents have come throwing light on the subject and many of
the propositions laid down therein have also got approval of the
Apex Court in the post independent era. In normal course
whenever an image or idol is set up and consecrated, there must,
needs be a Shebait to serve and sustain the deity whose
tabernacle the image is.
2689. Duties and privileges of a Shebait primarily are
those of one who feels it sacred. He must take the image into his
charge and custody; he must see that it is washed, fed, clothed
and tended and that due provision for its worship is made. The
main concern of a Shebait appears to be to carry out duly the
sacred duties of its office which he may perform personally or if
permitted by the customs may appoint a qualified assistant to
help in his stead. As already observed when an image is
consecrated, usually property is also dedicated to its use. This is
a common practice. Such property vest in the idol but the right
to possess and the duty to manage the property vests in the
Shebait. It would be important to mention the distinction that the
right to possess and duty to manage does not cloth the Shebait
with the right of ownership or title over the property but what
we have said should be taken no more and no less. It is only the
right to possess and duty to manage and nothing else. With
2599
regard to such property the position of Shebait is that of a
trustee though in true sense he cannot be said to be a trustee as
per the provisions of the Indian Trust Act or like.
2690. But then there has to be seen distinction between the
property owned by a deity and the deity itself. With regard to
the service of deity and duties appertained to it a Shebait is in
the position of the holder of an office in the dignity.
2691. In Maharanee Shibessouree Debia Vs.
Mothornath Acharjo (1869) 13 M.I.A. 270 an issue was raised
whether a Shebait entitled to sell certain Jammas connected with
a Taluk. The Judicial Committee held that Taluk itself, with
which these Jammas were connected by tenure, was dedicated to
the religious services of the idol. The rents constituted,
therefore, in legal contemplation, its property. The Shebait had
no legal property, but only the title of a manager of a religious
endowment. In the exercise of that office, it could not alienate
the property, though it might create proper derivative tenure and
estates comfortable to usage.
2692. Then came in 1875 another decision in Prosanna
Kumari Debya Vs. Gulab Chand (supra). In this case the
powers of Shebait were considered qua debutter property and
the Judicial Committee observed that the Shebait had no title to
the legal property but has a title of manager of a religious
endowment. In the exercise of that power, it may not alienate
the property, but may create proper derivative tenures and
estates conformable to usage. It said that it is competent for the
Shebait in the capacity of Shebait and Manager of the estate, to
incur debts and borrow money for the proper expenses of
keeping up the religious worship, repairing the temples or other
possessions of the idol, defending hostile litigious attacks, and
2600
other like objects. The power, however, to incur such debts must
be measured by the existing necessity for incurring them.
Judicial Committee referred to a judgment of Lord Justice
Knight Bruce in Hunooman Persaud Pandey Vs. Mussumat
Babooee Munraj Koonweree 6 Moore's Ind.App. Ca. 243
observing:
"The power of the manager for an infant heir to charge an
estate not his own is, under the Hindu law, a limited and
qualified power. It can only be exercised rightly in a case
of need or for the benefit of the estate. But where, in the
particular instance the charge is one that a prudent owner
would make in order to benefit the estate, the bona fide
lender is not affected by the precedent mismanagement of
the estate. The actual pressure on the estate, the danger to
be averted, or the benefit to be conferred upon it, in the
particular instance, is the thing to be regarded. But, of
course, if that danger arises or has arisen from any
misconduct to which the lender is or has been a party, he
cannot take advantage of his own wrong to support a
charge in his own favour against the heir grounded on a
necessity which his own wrong has helped to cause.
Therefore the lender in this case, unless he is shewn to
have acted mala fide, will not be affected, though it be
shewn that with better management the estate might have
been kept free from debt."
2693. In this context, the Judicial Committee in Prosanna
Kumari Debya (supra) said:
"there is no doubt that, as a general rule of Hindu
Law, property given for the maintenance of religious
worship and of charities connected with it is inalienable. . .
2601
. . . . But, notwithstanding that property devoted to
religious purposes, is as a rule, inalienable, it is, in their
Lordships' opinion, competent for the shebait of property
dedicated to the worship of the idol, in his capacity as
shebait and manager of the estate, to incur debts and
borrow money for the proper expenses of keeping up the
religious worship, repairing the temples or other
possessions of the idol, defending hostile litigious attacks,
and other like objects. The power, however, to incur such
debts must be measured by the existing necessity for
incurring them."
2694. The disputes which have arisen before the Courts
time and again are mostly in two context, i.e., (1) Relating to the
transfer of property of idol; and, (2) Relating to the
assignment/transfer/ alienation of the rights, duties, obligations
or tests with the Shebait. The various authorities, therefore, from
time and again have dealt with these issues in the context
thereof differently for the simple reason that they did not find
any specific answer on these questions in Hindu religious
scriptures and, therefore, mostly rely on the common law of the
land as well as principle of equity, justice and good conscience.
We would refer hereafter both the sets of authorities to give a
clear idea of the distinguishing features of the two.
2695. There is a third aspect also on which some
authorities have come, i.e., the alienation of the deity or its
temple itself. In Pramath Nath Mullick Vs. Pradhyumna
Kumar Mullick (supra) the Privy Council held that the idol
cannot be regarded a mere chattel. It is not property in true sense
and their destruction, degradation or injury is not within the
power of their custodian. An idol is extra commercium. It can
2602
never be the subject matter of commerce as also held in Khetter
Chunder Ghose Vs. Hari Das Bundopadhya (supra).
2696. In Smt. Panna Banerjee and Ors. Vs. Kali Kinkor
Ganguli (supra) Justice Deb in his concurring judgement
observed that a deity is not a chattel but a juridical person. No
custom can ever validate sale of any deity. Even legal necessity
of the deity cannot destroy the very existence of the deity by
selling it in open market. His Lordship said that the very thought
of it is opposed to the fundamental concept of Hindu
jurisprudence. It is against public policy. It is wholly
unreasonable. It is absolutely repugnant to Hindu law. It is so
repulsive to the judicial mind that every court is bound to strike
it down in limine. In para 66 of the judgment His Lordship
observed:
"66. No one has ever heard that a deity can be
served or be sold by hits and bits. The deity is indivisible.
It is the Supreme Being. The deity is not a property and
no one can be its owner not even its founder. The
shebaits are the managers of the deities though in reality
they are its glorified servants. No shebait can ever be the
owner of any deity. He is the custodian of the idol but
this custody does not nor can it ever confer any right on
him to sell the deity."
2697. This judgment was confirmed by the Apex Court in
appeal and is reported in AIR 1974 SC 1932 holding that the
transfer of Shebaity rights was illegal for the principal reason
that neither the temple nor the deity nor the Shebaity right can
be transferred by sell in pecuniary consideration. The transfer by
sell is void in its inception. We may mention hereat that various
reasons were assigned in the concurrent judgment but they have
2603
not been approved by the Apex Court except the reason that the
transfer of Shebaity rights of temple of deity by way of sell is
illegal.
2698. What was observed with respect to deity, the same
sanctity was extended to the abode of deity, i.e., the temple in
which deity live and it has been distinguished from other
endowed property of the deity. This we find, recognised by this
Court in Mukundji Mahraj Vs. Persotam Lalji Mahraj
(supra). Therein the plaintiff deity was installed in a temple at
Mathura. Defendant purchase half of the temple in execution
sell and took its possession. Deity brought action for recovery of
possession of the said part of temple from the defendants. The
Division Bench of this Court observed:
"Whatever may be said about a permanent alienation
of endowed property other than a temple, in the very nature
of things, having regard to the duties of a Manager or a
Shebait towards the idol or institution, there can be no
necessity of alienating the temple or any portion of it in
which the idol is installed. The maintenance of the entire
building is the prime concern of the Manager or the
Shebait.
The temple has a special sanctity distinct from other
endowed property. To alienate the temple itself is to cut at
the root of the very existence of the idol in the habitation
intended by the founder. Hindu Sentiment views the
alienation of a temple as a sacrilege. Not until the idol has
been removed from the temple in accordance with shastric
rites and has assumed a new habitation and the temple
abandoned as a place of worship may the temple be
alienated or sold in execution of a decree...."
2604
2699. To the same effect is another decision in Madan
Mohan Saha Banik and Ors. Vs. Rakhal Chandra Saha Banik
and Ors., AIR 1930 Calcutta 173.
2700. Here we may understand the meaning of the term
temple. The meaning of the word "temple" vide "Concise
Oxford Dictionary", page 1261 is "edifice dedicated to service
of God; or place in which God resides." The "New English
Dictionary, Vo. IX, Part II" says, "an edifice or place regarded
primarily as the dwelling place or 'hose' of a deity; hence an
edifice devoted to divine worship. Historically, the word is
applied to a sacred building of Egyptians, Greeks, Romans, etc.
but now to those of Hinduism, Budhism, Confucianism, Todism,
Shudasm, etc."
2701. The legal principle which are applicable to the
endowed property have to be distinguished from the case where
such power of alienability is sought to be conceived or pleaded
in respect to the very deity itself or its temple in which it is
consecrated or which is the permanent abode of the deity. The
preservation and not destruction of the deity and its property is
the paramount and highest duty of each and every Shebait is the
general law laid down by the Judicial Committee in pre-Indian
constitutional era and thereafter to the same effect is the law laid
down by the Apex Court also. The legal necessity of a deity
cannot be so unruly that it can rule over the deity. The alienation
of the endowment as a whole is not bounded by Hindu Law. The
endowment as a whole can never be the subject matter of
alienation even for the legal necessity of a deity for it would
destroy the very purpose and the object for which the
endowment is created. It will not only destroy the endowment
but will devour the deity too. The temple is the residential house
2605
of a deity. The deity is entitled to be worshipped in its
permanent abode. Its permanent residence cannot be disturbed.
The idol cannot be removed like a chattel. The temple cannot be
vivisected. It is impartible. No part of it can be sold even for the
deity's legal necessity. It is res extra commercium. Every Hindu
regards it as a sacred place. To sell a part of the temple is to
endanger the very existence of the consecrated idol and to put an
end to the sanctity attached to it.
2702. This is how the distinction of the property owned by
deity and its temple where it is consecrated needs to be
considered and seen.
2703. The Apex Court also in Shiromani Gurdwara
Prabandhak Committee, Amritsar Vs. Som Nath Dass
(supra) recognised the relationship between an idol and Shebait
and said:
"When an idol was recognised as a juristic person, it
was known it could not act by itself. As in the case of minor
a guardian is appointed, so in the case of idol, a Shebait or
manager is appointed to act on its behalf. In that sense,
relation between an idol and Shebait is akin to that of a
minor and a guardian. As a minor cannot express
himself, so the idol, but like a guardian, the Shebait and
manager have limitations under which they have to act."
2704. In Jogendra Nath Naskar (supra) while
recognising the juridical personality of an idol consecrated in a
Hindu temple the Apex Court quoted with approval the
following extract amongst others of West J. in Manohar
Ganesh Tambekar & Ors. Vs. Lakhmiram Govindram
(supra):
"A Hindu who wishes to establish a religious or charitable
2606
institution may according to his law express his purpose
and endow it and the ruler will give effect to the bounty
or at least, protect it so far at any rate as is consistent
with his own Dharma or conception or morality."
2705. An idol is a juridical person because it is adored
after its consecration in a temple. The followers recognise an
idol to be symbol for God.
2706. Here we may also keep in mind that all these cases
are in the context of a Pratisthit idol and not Swayambhu. In the
context of Swayambhu its juridical personality and concept of
juridical person would remain the same but therein the concept
of appointment of Shebait etc. may be a little bit different. In the
case of a Swayambhu, i.e., self created deity since there is no
founder or creator of endowment the question of appointment of
Shebait by founder does not arise. Either by custom or otherwise
by intervention of the Court, as the case may be, a Shebait may
be appointed or that a Swayambhu deity if continued to be
worshipped by believers without having any identified Shebait,
there may be a section of persons performing duties of Shebait
without any formal appointment or undertaking such job and in
such a case it cannot be said that the idol cannot be dedicated
any property but whenever a property is dedicated for the
purpose of possession and management someone has to be
appointed and if necessary by the Court also. Non appointment
of Shebait, however, in case of Swayambhu deity will not either
destroy the deity itself or will nullify or make ineffective the
very existence of such deity. Deity will continue since it is the
belief of the followers of the worshippers who come with the
believe that there exist a Supreme Being which is bodiless and
shapeless and is capable of fulfilling all their wishes and to
2607
provide them happiness and salvation. It is a deity which the
worshippers discover. Therefore, in order to consider a case
where the deity is in the form of a Swayambhu more particularly
in the form of a place, the concept of alienability whether under
the statutory law or otherwise is to be seen in the light whether it
pertains to some property constituting part of the endowment or
the very existence of the deity. When something relates to the
very existence of a deity, since it is a juridical person the
question of alienability does not arise as a juristic person like
Hindu deity cannot be alienated though in respect to several
other judicial person like commercial etc. the position may be
different but that will not apply to a case of deity governed by
Hindu Laws.
2707. Now we proceed to consider, in this context, the law
vesting right to sue or be sued upon the Shebait. The Shebait
since was entitled to possess and manage the property of the
deity, it was observed that normally the debutter's property is
inalianable but for the benefit of the deity the Shebait may
transfer the property, create charge thereupon. In Jagadindra
Nath Vs. Hemanta Kumari (supra) the Judicial Committee
observed that the only person competent to act or sue on behalf
of the idol is the Shebait or in the case of Math the manager.
This observation has been approved subsequently by the Apex
Court in Bishwanath Vs. Sri Thakur Radha Ballabhji (supra).
2708. The right to sue on behalf of idol, therefore, is
conferred on a natural person and if that is so the question
would be whether the provisions of limitation would apply to a
case where there is no such person who possess right to sue or
be sued. It is true that this decision of Privy Council in
Jagadindra Nath Vs. Hemanta Kumari (supra) has been
2608
doubted by a Single Judge of Calcutta High Court in Nagendra
Nath Palit Vs. Robindra Narain Deb, AIR 1926 Cal. 490 and
this has also been noticed by the Apex Court in Sarangadeva
Periya Matam Vs. Ramaswami Goundar (supra) but the Apex
Court has not expressed any final opinion either way.
2709. We also mention at this stage another decision in
Damodar Das Vs. Adhikari Lakhan Das (supra) wherein the
Privy Council gave benefit of Section 6 though otherwise the
limitation had expired on the ground that on the date when the
cause of action accrued the Shebait was minor and as soon as he
attained majority he file suit within the period of limitation
provided under Section 6 hence the suit was not barred by
limitation. If it is presumed that whether there existed Shebait or
not but once the property is alienated or cause of action has
accrued the limitation must be held to commence and shall not
stop, it would be difficult to understand the legal proposition
laid down in Damodar Das Vs. Adhikari Lakhan Das (supra)
by taking recourse to Section 6 of the Limitation Act when it
held that the Shebait on attending the majority can file the suit.
We find that the decision of the Patna High Court in Naurangi
Lal & Others Vs. Ram Charan Das (supra) was reversed by
Privy Council in appeal in Mahanthram Charan Das Vs.
Naurangi Lal and others, (1933) LR 60 IA 124. The Patna
High Court took the view that Article 144 of the Limitation Act
shall attract from the date of alienation of property which was
illegal and, therefore, the possession became adverse from that
very date. But the Privy Council reversing the judgment held
that the Mahant was at liberty to dispense the property of a Math
during the period of his life and, therefore, it was good to the
extent of Mahant's life interest and the possession would
2609
become adverse thereafter since for the subsequent period the
alienation was bad. We have no doubt in our mind that
whenever a suit is filed for and on behalf of an idol or deity it is
the idol or deity which is normally a party though represented
through a Shebait. But in a case where no Shebait is available,
the deity or idol being in a position of minor since the right to
sue vests in the Shebait, as such may not go unless some
beneficiary comes forward to undertake to file a suit as next
friend. The difference between Shebait and next friend is that
the Shebait is under a kind of obligation to protect the interest of
the idol or the deity but the worshipper is not under any such
obligation though if he comes to the Court and show his
bonafide i.e. approach to the Court for filing a suit for the
benefit of an idol, his suit cannot be dismissed as not
maintainable.
2710. Basically we have got two sets of decisions. Though
on our own we do not find much difficulty in reconciling them
but it appears that sometimes due to non raising of the relevant
issues in the matter and sometimes as obiter the decisions have
gone in wider terms creating a difficult situation in a given case.
2711. In the case of Jagadindra Nath Vs. Hemanta
Kumari (supra) and its follow up are those where right to sue
were held vested in the manager alone or in other words it is the
manager who is entitled to represent the juristic person and can
speak or act on its behalf. The second set of decisions where the
temple or math are juridical personality, and said that the
property is not vested in the manager but in the idols or
institutions, i.e. Jodhi Rai Vs. Basdeo Prasad (Supra),
Pramath Nath Mullick Vs. Pradhyumna Kumar Mullick
(Supra), etc.
2610
2712. In the second set of cases it is quite obvious that an
argument could have been raised that the limitation must be held
to start from the date of alienation irrespective of the non-
existent or incapacity of the Shebait or manager. The reason is
that in Jagadindra Nath Vs. Hemanta Kumari (supra) the
Privy Council says that the possession and management of the
dedicated property belong to Shebait and this carries with it the
right to bring whatever suit are necessary for the protection of
the property. Every such right is vested in the Shebait not in the
idol. The declaration is quite clear. This decision has been
referred to with approval Bishwanath Vs. Sri Thakur Radha
Ballabhji (supra). Dwijendra Narain Roy Vs. Joges Chandra
De (Supra) in the matter of application of limitation the Court
held:
"The substance of the matter is that time runs when the
cause of action accrues, and a cause of action accrues
when there is in existence a person who can sue and
another who can be sued. . . . . The cause of action arises
when and only when the aggrieved party has the right to
apply to the proper tribunals for relief. . . . The statute (of
limitation) does not attach to a claim for which there is as
yet no right of action and does not run against a right for
which there is no corresponding remedy or for which
judgment cannot be obtained."
2713. These observations receive approval of the Apex
Court P. Lakshmi Reddy Vs. L. Lakshmi Reddy (Supra).
2714. Be that as it may, all these authorities which make
observations in one or the other way relates either with the
property of the idol/deity or a math or the rights of the office of
Shebait but in no case the question arose as to what would
2611
happen when it is a case pertaining to the very existence of the
deity and no natural person in the form of Shebait is available.
Now it is beyond doubt that in order to be a temple or deity, test
of public religious worship on that place as a matter of right
needs to be satisfied and nothing more than that. In Ram
Jankijee Deities (supra) the Apex Court has observed:
"It is further to be noticed that while usually an idol is
consecrated in temple, it does not appear to be an essential
condition."
"If the people believe in the temples' religious efficacy no
other requirement exists as regards other areas."
"It is a human concept of a particular divine existence
which gives it the shape, the size and the colour."
2715. While considering the applicability of limitation in
the case of the deity and its property a distinction has to be seen
in a case where the endowment's property is involved and where
the very deity or the corpus of the deity itself is involved. Where
the corpus of the deity is involved it being a juridical person, the
Limitation Act as such would have no application. It applies to
the rights and obligations of the parties concerned but not to the
very person and its personality. If a dispute arose whether a
person is alive or dead, it cannot be said that the dispute arose
10 years or 20 years back but he is seeking a declaration after
expiry of the period of 6 years or three years, therefore, the suit
is barred by limitation or he cannot seek declaration. Such a
case, in our view, would be a case of continuous wrong and,
therefore, no limitation will stand in his way. Similarly, where
the very existence of a juridical person like deity or idol comes
into picture or that it seeks declaration about itself from a Court
of Law, the position would be different.
2612
2716. We may point out that earlier when the suit was
filed it was in respect to a much wider area which included not
only the place which we have held as deity, but also appurtenant
land which was claimed by the deity as property belong to it.
But now the matter is confined only to the place which is being
claimed by Hindus that according to their belief and faith, it is
the most revered, sacred and pious place being birthplace of
Lord Rama over which they have been visiting since time
immemorial, offering their worship continuously despite change
of structure or no structure, as the case may, over the said land.
Here the nature of the deity is different as it is in the form of a
place, can never be destroyed nor could be destructed, therefore,
if the deity claims a declaration from the Court, the plea of
limitation, in our view cannot be made applicable. There is thus
no question of taking recourse to Section 6 or 7 of the
Limitation Act. In Bishwanath Vs. Sri Thakur Radha
Ballabhji (supra), the Court in respect to the capacity in which
a deity can act observed that it is in the position of minor but
there is nothing to suggest that the Apex Court sought to undo
all judgments otherwise wherein to certain other aspects the
statutory provisions had been made applicable observing that it
cannot be treated to be a minor in perpetuity for the purpose of
those provisions only.
2717. It would be useful to refer a Division Bench decision
in Tarit Bhusan Rai (supra) where the point of similarity and
dissimilarity between a natural minor and a Hindu idol had been
noticed in para 12 and 13 as under:
"12. 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
2613
properties and protecting their own interests, (a) 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 Section 11 and Order 9, Rule 9, Civil
P.C, applies to both of them.
13. 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 (Subs-tantive 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."
2718. But this decision also makes it clear that the physical
capacity is lacking in an idol to sue as it is vested in Shebait.
The Court also referred to an earlier decision in Bimal Krishna
Ghose and Ors. Vs. Shebaits of Sree Sree Iswar Radha Ballav
Jiu (supra) stating:
"In India, the Crown is the constitutional protector of all
infants and as the deity occupies in law the position of an
infant. . . "
2719. Drawing parity with infant Calcutta High Court in
Tarit Bhusan Rai (supra) held:
"The case of an idol is similar to that of an infant only to
2614
this extent that both must act through some agents. But the
analogy does not seem to extend beyond this. An idol from
its very nature is a perpetual dependent and its incapacity
in this respect is perpetual. It would therefore be
reasonable to expect that the law which recognised its
personality must have made some provision for
supplementing this perpetual incapacity. As has been
pointed out above, the law recognises the shebaits for this
purpose and appoints them, as it were, to be the persons
who are to represent the idol for all juridical purposes. In
fact, though the idol is recognised as the owner, it is owner
only in an ideal sense. The right of suit is really in the
shebait." (para 49)
2720. If further said in para 50 of the judgement referring
to the Judicial Committee in Masjid Shahid Ganj v. Shiromani
Gurudwira Parbandhak Committee (supra):
"50. As has recently been observed by the Judicial
Committee in Masjid Shahidganj v. Shiromani Gurdwara
Parbandhak Committee, Amritsar, 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 shebait. No doubt an
idol is recognized as a, juridical person capable of having
interests demanding legal protection. But this is so only in
an ideal sense. Strictly speaking, the law of the present age
at least does not concern itself with anything outside
human interest and all the recognitions and protections
accorded to the idol must have been thought necessary
because of the existence of some ultimate human interests."
2721. To some extent the care in this context has been
taken by making provisions like Section 92 in the Code of Civil
2615
Procedure. The fact remains where the question of deity or the
idol itself comes and it seeks a declaration for itself, the
provisions of Limitation Act, in our due consideration, would
not be attracted.
2722. The Fourth angle: It is a deity which has filed the
present suit for enforcement of its rights. The religious
endowment in the case in hand so far as Hindus are concerned,
as they have pleaded in general, is a place of a peculiar and
unique significance for them and there cannot be any other place
like this. In case this place is allowed to extinguish/extinct by
application of a provision of statutes, may be of limitation or
otherwise, the fundamental right of practicing religion shall
stand denied to the Hindus permanently since the very
endowment or the place of religion will disappear for all times
to come and this kind of place cannot be created elsewhere.
2723. In Ismail Farooqui (supra), Supreme court has
considered the plea of validity of acquisition of land under Land
Acquisition Act that once a waqf of mosque is created, the
property vest in almighty and it always remain a waqf hence
such a property cannot be acquired. While negativing this plea,
the Apex Court said that a plea in regard to general religious
purposes cannot be said to be an integral part of religion which
will deprive the worshippers of the right of worship at any other
place and therefore, such a property can be acquired by the
State. However, the position would be otherwise if the religious
property would have been of special significance and cannot be
one of several such kind of properties. It will be useful to
reproduce the relevant observation in this regard:
"78. It appears from various decisions rendered by this
Court, referred later, that subject to the protection under
2616
Articles 25 and 26 of the Constitution, places of religious
worship like mosques, churches, temples etc. can be
acquired under the State's sovereign power of acquisition.
Such acquisition per se does not violate either Article 25 or
Article 26 of the Constitution. The decisions relating to
taking over of the management have no bearing on the
sovereign power of the State to acquire property."
"82. While offer of prayer or worship is a religious
practice, its offering at every location where such prayers
can be offered would not be an essential or integral part of
such religious practice unless the place has a particular
significance for that religion so as to form an essential or
integral part thereof. Places of worship of any religion
having particular significance for that religion, to make
it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and
more reverentially."
2724. The above observations show if the religious
endowment is of such nature, which is of specific significance
or peculiar in nature, could not have been found elsewhere, the
acquisition of such property by the Government will have the
effect of depriving the worshippers their right of worship under
Article 25 of the Constitution and such an acquisition even
under the statutory provision, cannot be permitted. We find
sufficient justification to extend this plea to the statute of
limitation also, inasmuch as, if the statute pertaining to
acquisition cannot be extended to a religious place of special
significance which may have the effect of destroying the right of
worship at a particular place altogether, otherwise the provision
will be ultra vires, the same would apply to the statute of
2617
limitation also and that be so, it has to be read that the statute of
limitation to this extent may not be availed where the debutter's
property is of such a nature that it may have the effect of
extinction of the very right of worship on that place which is of
peculiar nature and specific significance. This will be infringing
the fundamental right under Article 25 of the Constitution.
2725. In fact this reason could have been available to the
plaintiffs (Suit-4) also had it been shown by them that the
mosque in question for them was a place of special significance
but this has already been observed by the Apex Court in respect
to this particular mosque that like others it is one of the several
mosques and by acquisition of the place it will not have the
effect of depriving such fundamental right of Muslims. It is
always open to them to offer prayer at any other place like they
could have done here but Hindus are not placed on similar
footing. According to Hindus, this is a place of birth of lord
Rama and that be so, there cannot be any other place for which
such belief persists since time immemorial. Once this land is
allowed to be lost due to the acts of persons other than Hindus,
the very right of this section of people, as protected by Article
25, shall stand destroyed. This is another reason for not
attracting the provisions of limitation in the present case.
2726. The fifth angle: Last aspect is also an important
one. The suggestion is that the first cause of action arose when
at the disputed site the structure was raised but no action for
redressal of grievance was taken within reasonable time.
Thereafter the cause of action must have arisen when the
property in dispute was attached and the suit for declaration
having not been filed within six years thereafter. Hence the suit
is barred by limitation. If we take as if the disputed structure
2618
was raised in 1528 AD, whether any remedy was available to
the plaintiffs 1 and 2 and whether inaction on their part cause
any irreparable loss to the extent of preventing from raising the
dispute after a long time. The reign of Babar in India was only
for four years i.e. from April, 1526 to 1530. We have not been
informed as to what changes he made in the judicial system and
in what way a dispute could have been raised by the idol at that
time. The king, normally, enjoyed all powers whether
legislative, judicial or administrative except only to the extent
he authorises somebody to exercise his power otherwise. His
command was supreme and constituted law. Even the religious
law could have prevailed at that time only to the extent the king
would have permitted it. None could have sought justification of
the king's action before any authority. At least nothing has been
brought before us to show otherwise. Some light has been
thrown on this aspect in India During Muslim Rule by
Maulana Hakim Syed Abdul Hai translated by Mohiuddin
Ahmad published by Academy of Islamic Research and
Publications, Lucknow first edition in English in 1977 (Series
No.111) Chapter II page 77 which deals with the
Administrative System of Muslim Monarchs.
2727. About the political system, it says that the muslim
kings follow the rule governed by 'Shariah' and also policies
guided by political exigency. For the period of Chingiz Khan, it
says that he himself formulated a code of laws:
"Chingiz Khan had also formulated a code of laws,
called Yassafrom which Siyasah meaning politics is
derived-which continued to be the supreme law of the lands
ruled by his progeny. They scrupulously adhered to the
Yassa until they captured the sough eastern lands of
2619
Kirghiz steppe, Iran, Iraq and other countries. But by the
time Mangols entered India they had accepted Islam and
had become conversant with the Shariah, the teachings of
the Quran and Islamic way of life. Nevertheless, instead of
accepting the Shariah as the only rule of conduct
governing both public and private life, they contrived an
amalgam of laws, some divinely ordained and others
upheld by their national conventions. On the one hand,
they allowed the Qazis to guide them in religious matters,
to administer the trusts and settle personal affairs having a
direct bearing on religion, such as, marriages, inheritance,
etc. But, on the other hand, they continued to follow the
Yassa in political affairs and other matters taken out of the
purview of Shariah as, for example, interdiction of quarrels
amongst them. The Mongols used to appoint another
dignitary known as Hajib for the administration of these
customary usages.
Theft, adultery, wilful lies, lying or giving of false
evidence, sorcery, spying were punishable by death under
the Yassa. It dealt with in a similar manner with those who
caused loss to their business partners thrice or did not
restore the runaway slave to his owner. If the arms left
behind or dropped by a soldier were not restored to him by
the man following him, he too was to be put to death.
The code of Chingiz Khan treated matters of religion
indulgently. Religious teachers, mendicants, physicians,
criers of the mosque and persons performing burial
ceremonies were exempt from taxes and all religions were
equally respected."
2728. The muslim dynasties of India can be termed as
2620
Slaves, Khiljis, Tughlaqs, Saiyids, Afghans and Moghuls. The
administrative system followed by them, which included the
dispute settling forum, is mentioned as follows:
"(1) Slave and Khilji Dynasties
The Slave and Khilji kings followed more or less the
same type of administrative system with a fairly extensive
official hierarchy, of which the important offices are
mentioned here.
Wazir-As the head of the imperial secretariat, he
held the highest post and was next only to the King. His
functions included administration of the realm, supervision
of the state revenues and expenditure and all other
important matters related to these. The Wazirs were
assisted by Mushrif (accountant) and Mustaufi (auditors)
who used to keep him posted with the necessary details of
income and expenditure. The Wazirs were also known as
Khwaja-i-Jahan.
Arz-ul-Mam-lik-The post was equivalent to Chief of
the Staff of modern times. Being responsible for the
maintenance and administration of armed forces, he also
inspected the troops and approved the appointment to all
ranks. Anybody desiring recruitment as an archer had to
bend the different types of bows kept by the 'Arz-ul-
Mamalik. The rank of the candidates depended on his
ability and prowess to bend these bows. Similarly, an
intending horsemen had to strike a drum while riding a
galloping horse. The candidate for archer horseman had to
shoot an arrow into a ball lying on the ground from the
galloping horseback. The more expertise one showed in
taking the correct aim, the higher one rank was given.
2621
Hajib-There were different grades of Hajibs. Under
the Chief Hajib were his deputies call Naib Hajib, and then
Sharaf-ul-Hujjab, Saiyid-ul-Hujab and their assistants.
Quazi-The Qazis were required to enforce the rules
of the Sharian and decide the civil and criminal suits of the
people. A Qazi was appointed in every pargana while the
Chief Justice or Qazi-ul-Quzat had his headquarters in the
imperial capital. He was a member of the imperial court
and was known as Sadr-i-Jahan.
Amir Dad-The officer was charged with the
responsibility of deciding the disputes between the
grandees of the king. The expenditure on this office, paid as
remuneration to the officer, was 50,000 dinars annually.
Kotwal-Combining the duties of committing
magistrate and police, the officer was required to maintain
law and order as well as to punish the criminals.
Amir Kalid-dar-A noble was appointed for the safe
custody of the keys of royal apartments. It was his duty to
open the gates, when required, and keep a watch over
imperial Haram and its officers.
Amir-Wakil-dar-As the Chief dignitary of the royal
household, he supervised the royal kitchen, managed the
supplies and held the charge over the imperial household
servants.
Amir Jamdar- The officer was responsible for the
preparation of royal dresses and all purchases relating to
it.
Amir Salahdar-The officer held the charge of royal
armoury as well as commanded the royal bodyguards
during public and private audience of the king.
2622
Amir Tuzak-Amir Tuzak was the master of
ceremonies. It was his duty to notify the royal audience,
make arrangements for functions and ceremonies and
allocate seats to the dignitaries according to the ranks
held by them.
Diwan-i-Arz-He presented the incoming despatches
before the king and acted as an intermediary through
whom the king communicated with his officials and the
grandees.
Dabir-All the edicts, proclamations and books on
which royal seal had to be affixed were presented to the
king by Dabir. He also dictated letters on behalf of the king
in accordance with the directions given to him.
Mushrif-He were charged with the duty of keeping
an account of all State expenditure.
Al-Mustaufi or Mustaufi-ul-Mamalik was the
Accountant General who checked all accounts and kept a
record of State expenditure.
Majmua'dar-The officer was the book-keeper
responsible for maintaining accounts of both the incomings
and outgoings of the State exchequer.
Aqt adar-was the governor or deputy of the king in
the provinces. He held the command of the troops stationed
in the provinces and supervised the collection of revenues.
Muqatta was the administrative head of the
parganas.
Akhor Begi. Was the dignitary who headed the
officers and servants attached to royal stables and grazing
grounds reserved for the royal animals.
Shahna-e-il. was the superintendent of royal
2623
elephants who controlled the expenses on elephant stables,
mahawants, etc.
Shahna-e-marat. The officer equivalent to Engineer-
in-Chief was responsible for the execution of public works
specially, the castles and palaces.
(ii) The Moghuls
The administrative set-up of the Moghuls practically
remained unchanged during the long period of their rule.
They, too, had a long list of dignitaries which has been
given here under two categories.
In the first category were included those nobles and
dignitaries who always accompanied the emperor in camps
and cantonments, and counselled him in the management
of the State affairs.
Wakil-i-Mutlaq. He was the prime-minister, and
one of the highest grandees, who was the custodian of the
royal seal. The importance of his office placed him only
next to the emperor, above all other nobles and dignitaries.
Wakil-i-Mutlaq normally held one of the ranks
between Panj-hazari and Nuh-Hazari.
Madar-ul-Muham held the rank of a Wazir and his
business was to keep a watch over State expenses. The
officer could be deemed as the Chief Secretary of the
emperor, He was assisted by a number of Mustafis.
Nobles holding the rank of Chahar-hazari to Haft-
hazari were appointed as Madar-ul-Muham.
Ddiwan-i-Ala was the auditor of State revenues and
expenditure. An officer holding the rank of a Hazari was
appointed to this post.
Mir-Bakshi supervised the administration of armed
2624
forces, approved the appointment of new recruits,
presented them before the emperor and fixed their ranks
and pay. The Mir-Bakshi had three more Bakshis under
him, one each for the horsemen, archers and artillery. The
Mir bakshi was also appointed from amongst the nobles
holding the rank of the commanders of a few thousand
troops.
Sadr-us-Sudur. The function of the Sadar-us-Sudur
was to look after the welfare of religious teachers, men of
piety, orphans, widows and other poor and needy persons,
to sanction stipens for them and to appoint the Qazis. He
had also to be a grandee holding the rank of the
commander of a few thousand troops.
Qazi-ul-Quzat was required to enforce the rules of
the sharian and ensure their observance by the people in
their daily lives. He also decided cases relating to
dissolution of marriages, payment of loans etc. Qazi-ul-
Quzat was also a dignitary of the State holding a high rank.
Mufti-ul-Askar. Appointed from amongst the
grandees of rank and authority, his function was to
pronounce juristic opinion in accordance with the Hanafite
school of jurisprudence.
Muhtasib acted as the censor of public morals. It
was his duty to check the use of intoxicants like liquor,
opium and hashish, to suppress immoral practices and to
interdict the entry of women of dissolute character in
public gatherings and fairs. He was also required to
control the market and put down hoarding, fraud and other
malpractices.
Daroga-i-Adalat. Acting as a special court of appeal
2625
for those who could not gain access to the king, he held the
court daily from morning till noon and decided the law-
suite in accordance with the rules of the Shariah or the
customary usages, as the case required. Such cases as he
thought fit to be decided personally by the king, were
referred to the latter for hearing in the imperial court held
on each Wednesday.
Dabir was the royal amanuensis who took down the
royal orders and edicts which were later copied by
calligraphers. Such letters or orders bore king's titles as
the top in golden letters and the royal seal was affixed by
the Amir-ul-Umra before being despatched.
Mir Tuzak was the Lord Chamberlain responsible
for enforcing court etiquettes and making arrangements for
the royal functions. It was his duty to obtain the orders of
the emperor and notify the holding or cancellation of such
functions.
Mir Atish-As the lord of Artillery, he supervised all
the affairs relating to the established of the imperial heavy
and light artillery.
Mir Saman looked after the royal wardrobe,
jewellery and ornaments.
Khan-i-Saman, a trusted grandee; had the charge of
the imperial kitchen.
Darogha-i-Ibtiya. The officer was responsible for
the purchases required for the royal household.
Darogha-i-Jawahirkhana A Darogha was
appointed for the imperial treasury of precious stones. The
officer had to be a skilful jeweller capable of classifying the
jewels and other precious stones.
2626
Darogha-i-Kutub Khana. It was his duty to properly
maintain the royal library.
Darogha-i-Ghusalkhana. This officer was charged
with the responsibility of informing the emperor about the
presence or absence of dignitaries entitled to attend the
Diwan-i-Khas (court of private audience).
Darogha Arz-i-Mukarrar. The cases relating to
revenue affairs and grant of jagirs requiring a revision of
the earlier orders were brought to the notice of the
emperor by Darogha Arz-i-Mukarrar.
Darogha Dak Chauki. He read out all letters and
communications to the emperor received from outlying
areas and subas.
Darogha-i-Khawasan. He was the superintendent of
all the menial and maid servants attached to the royal
household.
Akhor Begi was responsible to the emperor for
proper maintenance of royal stables, grazing grounds
reserved for them and the establishment required for these.
Shahna-i-Fil was responsible for the royal stables of
elephants and all matters relating thereto.
Kotwal was the custodian of law and order with
extensive powers to protect the life and property of the
citizens and to root out theft and brigandage.
The provincial set-up of the Moghul administration
consisted of the following officers:
Subedar was head of the civil administration as well
as the armed forces stationed in a suba. Holding a mansab
between she-Hazar and Haft-Hazari, he had the overall
charge of provincial administration ranging from
2627
maintenance of law and order and collection of revenues to
the maintenance of imperial forces. Normally the Subedars
were paid 24 lakh rupiahs annually but they were also
granted a Jagir and were occasionally rewarded for
meritorious work. The Subedars had their headquarters in
the capital of the provinces or in some important and
central town of the Suba.
Bakshi was also a mansabdar, appointed by the
Emperor. His duties comprised selection and posting of
military personnel, superintendence of the mustering for
branding and verifying the troopers' horses and similar
other matters connected with the armed forces.
Diwan. Being the book-keeper of the provincial
government, he was responsible for keeping the accounts of
income and expenditure of the suba. The Diwan was
appointed by the emperor but the order for his appointment
was issued under the seal of the prime-minster. He was
assisted by a Peshkar (Personal Assistant), Darogha
Kachehri (Court Inspector), Mushrif Daftar (Accountant)
and Tahwildar (Treasurer). These officers were provided
with a contingent of subordinate staff consisting of Munshi
Kachehri, Huzur Nawis, Suba Nawis, Muharir Khalsa,
Muharir Daftartan, Muharir Daftar-pai-baqi and Muharir
sar-rishta.
Faujdar. He was the officer, at the provincial level,
charged with the responsibility for maintaining law and
order, imposing punishment on the criminals and gangs of
the robbers and putting down rebellions.
Sadar. He was an officer appointed by the emperor
on the recommendation of the Sadr-us-Sadur, and was
2628
attached to the Subedar to look after the welfare of
theologians, mystics and the poor. He was authorised to
grant stipends to such persons.
Qazi. A Qazi was appointed in every pargana for the
administration of Justice. His office consisted of a Mufti
(Legist), Wakil Shara'I (expounder of the SharI'ah laws),
Muharir Munaskha (registrar of law suits) and Mushrif
(accountant).
Muhtasib. Like the Muhtasib of the imperial capital,
one was appointed in each city or a Mohal, by the Sadr-us-
Sudur. His monthly remuneration was one hundred and
fifty rupiahs in addition to a horse allowance of ten
rupiahs.
Darogha-i-Adalat was required to hold his court
from early morning till afternoon for the hearing of cases
instituted against nobles and dignitaries so that the persons
who could not approach the king or the governor should
not be deprived of justice. The plaintiffs were allowed to
present their cases in person or through their attornies.
The Darogha tried to compound the cases through mutual
agreement of the parties but if his efforts failed, he asked
the witnesses to be produced and communicated his
decision to the civil authorities for execution of his
judgement. The civil authorities were also required to
devote two days in a week for this purpose.
Waqa-i-Nigar. Reporters were appointed in each
suba, sakar and pargana to inform the centre about every
event, big or small. They sent two despatches every day; in
the evening covering the news of the day and in the
morning covering the happening during the night. These
2629
despatches were delivered to Darogha Dak Chauki who
immediately sent them to the capital for the perusal of the
monarch. Thus the emperor kept himself informed of all
happenings from Qandahar to Bengal. Since the Waqa-i-
Nigars could distort or misrepresent any event, four other
officials holding different ranks viz. Special Waqa i Nigars,
Sawaneh Nigars (biographers), Khufia Nawais (Secret
agents) and Karkaras (postmen) were also required to send
their reports. If any discrepancy was found in the reports
received from different sources, the emperor instituted
enquiries through other agencies.
Kotwal was posted in a each city by the Mir Atish.
His duties were analogous to the Kotwal in the Capital.
Thanakar performed the duties of the Kotwal in the
parganas.
Amal Guzar. It was his duty to collect Ushr and
Khiraj as well as to adopt measures for the improvement of
the quality of land and bringing waste land under
cultivation.
Khazanadar. The officer was the local custodian of
state income and was responsible for remitting it to the
imperial treasury.
Qanungo. A qanungo or registrar of cultivated lands
was appointed in every pargana to supervise the
measurement of area sown and to maintain necessary
records in this connection.
Tipakchi. A junior official was charged with the
responsibility of recording the units of cultivated area,
quality of land, name of cultivators, the yield harvested and
the revenues assessed thereon. One tipakchi was appointed
2630
for each big village or a group of villages."
2729. Then on page 100, in the aforesaid book, he has
mentioned about the judicial policies which reads as under:
"As stated elsewhere, the administrative policy of the
Muslim monarchs, from the very beginning, was based on
the canons of the Shraiah and what they called Siyasat, the
principles devised by them from usage for running the
administration. Accordingly, they gave over the
administration of religious matters to the Qazis but kept
their own grip over temporal affairs like punishment of the
criminals, social justice and fair deal to their subjects. The
sultans of the Slave dynasty as well as the kings succeeding
them allowed the Qazis only to enforce the five
fundamental religious duties enjoined by Islam, to look
after the trusts and welfare of orphans and to try cases
relating to marriages, inheritance and loans. Qazi-ul-
quzat, holding charge of the Qazis at lower levels was a
grandee of the king. Similarly, an Amir-ul-Umra was
appointed over the grandees of the State. He had to be a
man of piety with commanding personality, for, acting as
Amir-i-Dad, he was empowered to hear the cases against
persons of rank and authority. Kotwal was responsible for
enforcing social security and maintenance of peace in the
realm. Another officer, known as Muhtasib, kept in check
the unsocial practices like gambling, drunkeness,
promiscuousness, supervised wieghts and measures and
took action against short weighing and fraudulent
practices in business affairs. All such cases were also
brought to the notice of the king or the Subedar in the
province.
2631
Reform By Sher Shah
In addition to the Qazis, Muftis and Kotwals, Sher
Shah appointed another officer, known by the name of
Amin, to decide the revenue and criminal cases and also to
see that the populace was not oppressed by the
administrative wing. Such Amins, appointed in each
pargana, had a Sadar Munsif in the district to supervise
over them. If any such case was brought before the Sadar
Munsif, he decided the matter and then sent a report to the
King.
Reforms of the Moghuls
During the Moghul period, a Qazi was appointed in
every city, big or small. At the top was Qazi-ul-Quzat, a
dignitary of the state and counsellor of the emperor. Since
he always accompanied the king, he was also called Qazi-
ul-Askar. All religious matters were entrusted to his charge
and he was assisted by a Mufti, Wakil Shara-i, Muharir
Manakhsha, Mushrif and few other officers.
In the provinces the Sadar Qazi was the
superintendent of the Qazis in the districts, parganas and
cities, Similarly, the provincial Kotwal had the charge of
Thanedars in the parganas. Another officer, normally a
man known for his piety and wisdom, was appointed by the
Central Government to supervise the working of the
religious courts of the Qzais. Known as Darogha-i-Adalat,
he held his court daily from morning till afternoon so that
all those persons who could not approach the king or a
grnadee could appear before him. Darogha-i-Adalat, either
himself decided the cases in accordance with the Shari'ah
law or customary usage or referred them to the Subedars
2632
or Faujdars. The last mentioned officers were also
required to devote one or two days in every week for
deciding all cases referred to them after making due
enquiries.
Imperial Court
The mughal emperors held a court of justice once in
a week. Wednesday was earmarked for the purpose when
they sat in the Diwani-i'Am attended by a group of Qazis,
Muftis and religious doctors. Nazir-i'Adlia or Mir'Adl, a
special officer appointed for the purpose, presented the
complainants one by one before the emperor who
sympathetically listened to the grievances of the subjects
and decided the cases on the advice of theologians.
If the case produced before the emperor pertained to
a far off place, and edict was issued to the Subedar to
restore justice to the plaintiff or produce both the parties
before the emperor.
The French traveller Bernier writes that 'the emperor
(Alamgir) used to hold a court of justice once in every week
when Nazir ' Adlia presented the petitions before him one
by one'.
Aurangzeb's sense of Justice
Aurangzeb gave the highest priority to the
dispensation of justice. In addition to holding the Imperial
Durbar daily, he sat in a special court known as Daulat
Khana, every day after the afternoon prayers where Nazir-
i'Adlia presented the petitions of complainants before him.
Thereafter the emperor held courts in the Diwan-i-'Am and
Diwan-i-Khas, where again Nazir-i-Adlia produced the
plaintiffs deserving a personal hearing before the emperor.
2633
The emperor gave a patient hearing to them and either
wrote the orders with his own hand or dictated the orders
passed by him. His industry in administration of justice was
marvellous; for he often devoted the entire period between
the afternoon prayers and the 'asr to decide the cases
brought to him, and then attended to other official matters
with a smiling and cheerful countenance.
Wakalat-i-Shari'ah
Aurangzeb was the first monarch of India who
appointed Wakil-i-Share'is in all suba courts with a wide
jurisdiction over the subordinate courts in the districts and
parganas. He always selected just and pious men for this
post and charged them with the responsibility of making
enquiries in all cases including even those brought against
his own Imperial majesty. He had also allowed the
populace, through an imperial proclamation, the
permission to lodge cases in the courts of Qazis against the
Emperor. He improved and systematised the practice
followed in the appointment of Muhtasibs."
2730. We do not find any system in the above which
empower at that time, subject to challenge a Firman of the king
or an order of the king particularly in the matter of desecration
of religious place of idolaters by the king himself or under his
command or with his approval. In any case, it is nobody's
suggestion that at that time there existed any provision of
limitation. The Nawab Subedar of Oudh separated sometimes in
the later half of 18
th
century from Mughal kingdom but so far as
the policy towards religious matters qua Muslim and Hindus are
concerned, there does not appear to be any change. Moreso, in
the meantime, as we have already shown, the Hindus continued
2634
to enter the disputed structure, offer worship and Darshan
thereat and therefore, vis a vis plaintiffs, the piety and
sacredness as also the belief of Hindus continued along with
worship.
2731. The Hindu worshippers tried to enforce their right to
the exclusion of Muslims some times in 1853-55 but with the
intervention of the British Government, sometimes in 1856-57,
a partition wall said to have been raised dividing the area
between the two communities. However, this arrangement could
not detain Hindus as we have noticed from several documents.
They continued to enter the arena provided for Muslims (i.e.,
inner Courtyard) and it appears therefrom that Hindus
continuously worshipped in the inner courtyard also though at
time the Muslims Friday prayers were also held thereat, may be
under the safety provided by the administration. In 1949, though
it is true that the property was attached, but simultaneously it is
also true that the worship of deities in the disputed structure has
continued not only in the outer courtyard but also in the inner
courtyard.
2732. Thus for all practical purposes, since the
worshippers continued to be benefited by worship and darshan
for which the public temple is meant, it cannot be said any cause
of action accrued to the plaintiffs to file a suit at any stage
earlier.
2733. The benefit of a temple or deity is not for the idols
but the real beneficiaries are the worshippers and the purpose of
endowment is the maintenance of that worship for the benefit of
the worshippers. We have already referred to the relevant
authorities on this aspect and add one more i.e. Kapoor Chand
& Others Vs. Ganesh Dutt and others 1993 (Supp.) 4 SCC
2635
432 where following the earlier decision in Deoki Nandan Vs.
Murlidhar 1956 (1) SCR 756, the Court said as under:
The temple has been found to be a public temple. In
respect of a public temple, the law is well-settled 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 worshippers have a right
to file a suit to set aside a transfer of immovable property
comprised in a Hindu religious or charitable endowment
made by a manager thereof for valuable consideration.
2734. The pleading in the suit for filing the same is that a
decision was taken by majority of the worshippers to construct a
new temple but apprehending some dispute thereupon, to have
clarity in the matter, the present suit has been filed.
2735. A person can always approach a Court seeking
declaration whenever there is some doubt though in true sense it
may not be said that any of his right has been infringed by the
other side giving a cause of action to file a suit. From the
pleadings of the defendant also we have not been able to find
out as to how and in what manner they claim that the limitation
arises for the purposes of the present suit on a particular date
and commencing therefrom the suit is barred by limitation.
2736. Coming to the submission of Sri M.M.Pandey that
on account of the Oudh Laws Act, the limitation statute would
not be applicable to the present matter we find difficult to agree
for the reason that a bare reading of Section 3 shows that if the
matter is covered by the statute, that will prevail. Where the
personal laws and statute operate in the same field, it is the
statute which shall prevail as also held by the Privy Council in
2636
Mosque known as Masjid Shahid Ganj (supra) which has
been approved by the Apex Court in Ismail Farooqui (supra).
2737. In this particular and peculiar case, one most
important aspect is that the disputed place is believed to be the
birth place of Lord Rama by Hindus. We have already held that
it is a deity and therefore, a legal person. Thus the position of
the place in this case is in dual capacity. This constitute a legal
person and simultaneously it is also the property of the legal
persons i.e. a deity. The possession can be on a property and not
the person. Regarding the declaration, which the plaintiffs 1 and
2 have sought before us, we have not been shown the exact date
from which such period would have commenced so as to non-
suit the plaintiffs on the ground of limitation. Neither the
plaintiffs 1 and 2 were disturbed at any point of time in 1949 or
even prior thereto. The only one occasion which at the best
could have been there of disturbance is the structure of the
temple which is said to have been disturbed sometimes in the
late 17
th
century or early 18
th
century. However, that disturbance
does not appear to have caused any interference in the
maintenance of worship of the place in dispute and that is how
the worshippers continued to be benefited. This has continued
even when the property was attached on 29
th
December, 1949
but it was ensured that the worship by Hindus shall continue.
We, therefore, find no period of commencement wherefrom it
can be said that the suit stand barred by limitation. Mere filing
of some other suit by some other persons, in which the deity is
not impleaded, cannot necessarily give a cause of action to the
deity necessarily to file a suit or to suffer the cause of limitation.
2738. In the entirety of the matter, we are of the view that
suit in question cannot be dismissed on the ground of limitation.
2637
The Issue No.13 (Suit-5) is answered in negative i.e. in favour
of the plaintiffs. The suit is not barred by limitation.
(I) Issues relating to Possession/Adverse Possession:
2739. Issues no. 7 (Suit-1); 3 and 8 (Suit-3); 2, 4, 10, 15
and 28 (Suit-4); and 16 (Suit-5) fall in this category.
2740. The issues no. 7 (Suit-1) reads as under:
"Have the Muslims been in possession of the property
in suit from 1528 A.D. continuously, openly and to the
knowledge of plff and Hindus in general? If so, its effect?"
2741. The related pleadings are in paras 9, 10, 16 and 17
of the written statement filed by defendants no. 1 to 5, which
read as under:
i s. r l l ii i - ; ii li r r
iriir lr i iir | ni-| i -l- -i -i i| -l-
r . li iriir - i n ri| lr -ni ii i-
ii | - i -i ri- -| i| r n-i-
rzs ; o - ni-| ii i ni-| n-i- - -i l
i - l i . l - n-i - - -i i r
;i n r .
Para 9. That the property which has been claimed by the
plaintiff is the Babri Mosque built by Babar Shah,
Emperor of India in his name, who got it built through his
Minister and Commander Mir Baqi in 1528 AD on his
arrival at Ayodhya during his expedition of conquering
India and thereafter he made a waqf and consecrated to
Muslims wherein Muslims have right of worship.
(ETC)
i o r l i ni-| -l - iriir i
-l - | linin ---n |n ;iiin l - o
co o iii i lni iii iir| - li| i
2638
i i i- nn - nli -l- - i i l-ni ri|
i -ii i nn - nli i| i i| ; lni
i i- ii i -ii r -n - - lni - i
;ii - o soz o s ii c io iii ni i -
li i - i ;ni nn i l l-i n - - i| i|
ii i -ii i -n - n - - ni li - nl~i
i i lni - -ilin ii | ri
- nli i i ni -i| li - il -l i| ni
li|
Para-10 That after construction of the disputed mosque,
emperor Babar made a grant of Rupees 60/- per annum
from his royal treasury towards Khitabat (recitation of
Khutb), repair and miscellaneous expenses of the disputed
mosque, which was continuously paid to the disputed
mosque during the Mughal regime and even after the
Mughal regime, this grant was maintained by the Nawabs
of Awadh and in their period this amount of grant was
enhanced to Rupees-302, Anna-3, Paisa-6 per annum,
which was maintained by the British Government even
after the Awadh regime, and at the time of the First
Settlement, the land of Villages-Sholapur and Bahuranpur,
Mutkhil (situated) at Ayodhya, were Mafi (exempted)
for the expenses of the Babri mosque. (E.T.C)
i c r l i - -i i ni -l
i | rzs ; o i n - i i ni
r | ; r n l| -i - - ; i i ; i l r
r i l n i | l -l i | | ni -| r
i ; -l - i - -l - - i i l
- i r - - | i n ; i r | ni rin - i|
i - -ii i oo i i r n i z
i ;~- inir| - ; -i r lr ni -l-
2639
i- i ini r| ; r r l r |
- ; i i ; r i | r| ri |
Para-16 That the possession of Muslims over the
Babri mosque as a Waqf, has been continuous till date
since the year 1528 AD. As such, even if the plaintiff or
any other Hindu establishes that there was any temple at
the site of the disputed mosque prior to construction of
Babri mosque, which is wholly denied by the answering
opposite party. Then in that situation also the possession
of Muslims has been existing over the property for 400
hundred years and for 12 years in the knowledge of
plaintiff and other Hindus, as a universal Waqf mosque.
Due to this, no right of the Hindus or personal right of
the plaintiff subsists.(E.T.C)
i / r l - ; i i i i ; r ;-i n
- ni l i - i | i i i r | ; r ii
;-nili r i z i i| ii iil |i;
in r |
Para-17 That no right or possession of the plaintiff
ever existed nor exists over the disputed property. Due to
this the suit is barred under section 42 and is not fit to be
allowed by the court. (E.T.C)
2742. In the replication filed by the plaintiff, para 10 of the
aforesaid written statement has been replied as irrelevant. Para
16 has been denied and para 17, as pleaded, has been denied. It
is said that Section 42 of the Specific Relief Act has no
application in the matter. In para 31, possession of Muslims of
the disputed premises atleast since 1934 has been denied stating:
iii s i l lni|ni rn r l r i| -l- r | ;
-ilin - l r i| ri ni i| i l ss ; o
i | i ; - -i ; -l i | n i r|
2640
i i | i lr i i r| n li- --n - ln
ni - lii i ri| ;l l ni | ni i i
l | - -i i l i ; r ri i | ri ni
i n ri ni i r r l i n ri ni | ; -i i
i -l -i l r ri i n - l r -
i i ni i ni ri r | l -l i ri i l l n
l ri ni r | l i| l| - -i s i|
r li n i - li ni r i -|i n r
lr i liin -ii - r ii i -i inii| ni
i r l - -ii -n i| nii | i|
lii n l| ll ;i - i ln s |
i i;i i; r| l i| i ;i r| i i i; ii
; ri r| ni r| li in l l| lr i
i ni i| ii| i ir| | | n; r | lii n
inin l~ i ln r| l| i i| ; ri - -i
i r| r |
Para-31 That the defendants claim that it is Babari
mosque, and even if they succeed in establishing the same,
then also in view of failure of Muslims to enter this
temple after the year 1934 AD and in view of continuance
of the right of Hindus in the knowledge of all, the rights of
the defendants or any other Muslim, if any, stood
extinguished. Every Hindu has been regularly visiting
the said place as a Hindu by taking it to be a temple,
which has certainly made it a temple. If any Muslim ever
tried to exert his right then by denying the same, the
Hindus, particularly the locals, drove them away. It has
come to knowledge that the Muslims have got some fake
proceedings carried out from the court of Civil Judge by
filing a farzi and collusive suit, which is denied by the
plaintiff and it has no bearing over him particularly so
2641
when the Hindus had no knowledge of the same. The entire
proceeding is fake. The papers of that case are irrelevant
and not acceptable under any circumstance. (E.T.C)
2743. The defendant no. 6, in para 12 of his written
statement has said that the disputed premises was known as
Babari mosque and for a long period has been used as mosque
for the purpose of worship by Muslims. It has not been used as a
temple of Sri Ram Chandraji. The defendant no. 8 has not said
anything in the written statement on this aspect while defendant
no. 9 in para 12 has taken the same stand as that of defendant
no. 6. The defendant no. 10 in its written statement has taken a
stand similar to that of defendant no. 1 to 5 and in paras 11, 15,
17 and 18 has further pleaded:
11. That the Emperor Babar had given a grant of Rs.
60/- per annum for the maintenance and annual repairs
and other expenses relating to the said mosque which had
remained being paid during the Moghal regime, and
during the regime of Nawabs of Avadh the said grant was
enhanced and the British Government had also continued
the said grant and at the time of the First Settlement, the
land of Mauza Sholapur and Bahuranpur was settled as
Mafi for the expenses of the said mosque.
15. That muslims had all along remained in possession
of the said mosque right from 1528 upto the date of
attachment of the said mosque under section 145
Cr.P.C. made in December, 1949.
17. That as the plaintiff has never remained in
possession or occupation of the building in suit, he has
no right, title or claim over the said property and as such
the suit is even barred by the provisions of Section 42 of the
2642
Specific Relief Act.
18. That the plaintiff's suit is even barred by the Law of
Limitation as the muslims have remained enjoying the
possession over the property in suit at least from 1528
A.D.
2744. The issues no. 3 and 8 (Suit-3) read as under:
"Have plaintiffs acquired title by adverse possession
for over 12 years?" (Issue 3)
"Have the rights of the plaintiffs extinguished for
want of possession for over 12 years prior to the suit?"
(Issue 8)
2745. Paras 2, 4 and 5 of the plaint says:
2. . . . . plaintiff no. 1 who through its reigning Mahant
and Sarbrahkar has ever since been managing it and
receiving offerings made there at in form of money, sweets,
flowers and fruits and other articles and things.
4. That the said temple has ever since been in the
possession of the plaintiff no. 1 and none others but
Hindus have ever since been allowed to enter or worship
therein and offerings made there which have been in form
of money, sweets, flowers and fruits and other articles and
things have always been received by the plaintiffs through
their pujaris.
5. That no Mohammadan could or ever did enter in
the said temple building. But even if it be attempted to be
proved that any Mohammadan ever entered it, which would
be totally wrong and is denied by the plaintiffs, no
Mohammadan has ever been allowed to enter it or has
even attempted to enter it at least ever since the year
1934.
2643
2746. The defendants no. 6 to 8 have denied the above
paragraphs of the plaint and in paras 15, 16, 22 and 23 have
pleaded:
iii r r l ii i - i ii li r r iriir
lr i iiir ni-| i -| -i - i| -l r
li iriir - | -i -iri- -|i|
rni- rzs ; o - ni-| ii| i - -ii l
i - l i l - n-i- - -ii i r rin r |
Section 15 That the plaintiffs claiming the property
have contended that it is the Babri Masjid, which was built
by Emperor Babur. The said emperor got it constructed
through his secretary and commander, Mir Baqi, in 1528
and it was given as a public waqf to the Muslims in which
the right of Muslims in general is vested. (E.T.C.)
iii c r l i ni-| -l - iriir i r- n~i
r -l - | lrin ---n |n iiin
l - o co i iii i lni ii iir| -
li| i ii i- nn - nli -l - i i
l-ni ri| i -i i nn- nli i i| i i|
; n| i i- ii i -i r -n - - ln
- i ;ii - o soz s ii c i; iii
li| i - i in ni- nn i l l-i n - - i|
i| ii| i -i - i -n - n -- nili
- nli i i lni - - illin i i |
i ri - n| ii ni -ii| li -iln
-l i| ni li|
Section 16 That Emperor Babur had granted Rs. 60 per
annum, from his Royal Treasury, for safety and
maintenance of the said mosque and to meet other
expenses incurred on it. The said grant continued to flow in
to the said mosque during the Mughal rule. Even after the
2644
Mughal Rule, Nawabs of Awadh also continued this grant
and during their regime they enhanced the said grant to
three hundred two rupees three annas six paise per annum.
The British government also continued the grant of the said
amount. At the time of the First settlement, the British
government, instead of giving the said grant in cash,
settled the land of Ayodhya-situated villages, namely,
Sholapuri, Ghooranpuri and Bahoranpur as Mafi, to meet
the expenses of the said mosque. (E.T.C.)
iii zz r l i - -ii ni -l i|
rzs ; o i n - i ini r | r n l |
-i - - i i i ; i l r r i l n i |
l -l i | | ni -| r i ; - l - i -
-l - i i l - i r- - i ni
;i r i ; n - i | i - -i i i
oo i i r i z i
r~- i ni r| - i -i i r l r ni -l
i - i i i r ; r r l r |
- i i i ; r i | r| ri |
Section 22 That the Muslims have continued to have
possession in the shape of waqf over the Babri mosque
from 1528 up to the present. If at any time plaintiffs to
the suit or any other Hindus prove that prior to the
construction of Babri mosque there existed any temple
on the site of the said mosque, which contention the
defendants deny, even in that case Muslims have been in
possession of the said property for 400 years, and their
possession in the shape of public waqf over the mosque,
has been in the knowledge of plaintiffs to the suit or
other Hindus. For this reason, Hindus and the plaintiffs
to the suit do not have any right over it. (E.T.C.)
2645
iii zs r l - i i i i i ; r ;-in - nili -
i| i| i r| ; r ii iil li; in r |
Section 23 The plaintiffs never had possession or title
over the disputed building nor do they have such
possession or title. For this reason, the claim is not fit to be
allowed by the Court. (E.T.C.)
2747. In the replication filed by the plaintiff, para 16 of the
written statement of defendants 6 to 8 has been denied and in
paras 22, 23, 24, 30 and 34, it further pleads as under:
22. The contents of para 22 of the written statement are
totally false and are denied. The Muslims were never in
possession of the building in suit and the allegation
regarding the perfecting of the right of the muslims over
the building in question by adverse possession is a pure
fiction, concocted for the purposes of the suit.
23. The contents of para 23 of the written statement are
totally false. The plaintiffs have always been in peaceful
possession of the building in suit.
24. The contents of para 24 of the written statement are
denied. The plaintiffs have ever been in possession of the
temple in suit and no question of expiry of the period of
limitation arises.
30. In reply to para 30 of the written statement the
plaintiffs contend that they have been in possession and
management of the temple of Janma Bhumi ever since the
living memory of man. The said temple always belonged
to the plaintiff used and was managed through his
Sarbarahkar the plaintiff no. 2 being the present
Sarbarahkar.
34. The contents of para 34 of the written statement are
denied. The plaintiffs claim is perfectly justified. The
2646
plaintiffs have been in possession of the temple in suit
for an immemorial time and even through the evidence of
the construction of the temple by the plaintiff no.1 through
his Mahant and Sarbarahkar may not be traced due to the
lapse of immemorial age and want of written records the
plaintiffs have acquired title to it by open and adverse
possession for a period of time which is longer than the
living memory of man.
2748. The defendant no. 9 has filed an additional written
statement but in respect to the above issues there is no specific
pleading.
2749. The defendant no. 10 in its written statement has
denied paras 2, 4 and 5 and says:
2. That the contents of para 2 of the plaint are denied.
However, it is submitted that the JANMA ASTHAN is a
holy place of worship and belongs to the deity of Bhagwan
SHRI RAM LALLA VIRAJMAN there. It never belonged to
and could not have belonged to the plaintiff no. 1. It is
denied that the plaintiff no. 1 ever managed it.
4. That the contents of para 4 of the plaint are not
admitted. A Hindu Temple is deemed to be possessed and
owned by a deity. The principal deity of SHRI RAM
JANMA BHUMI is BHAGWAN SHRI RAM. Any
offerings must have been received by the Manager of the
same from time to time.
5. That the contents of para 5 of the plaint are not
admitted in the form they have been pleaded. Although it is
made to appear that in the first war of independence in the
year 1857 A.D., the British, to divide the Hindus and
Muslims, mala fide acted by dividing the said ASTHAN
2647
by creating an inner enclosure and describing the
boundary within the inner enclosure as a mosque but no
Muslim who was a true Muslim, would appear to have
frequented it for offerring his prayer as the same is
prohibited by the SHARIYAT. Moreover even ALAMGIR
(EMPEROR AURANGZEB) issued a mandate, known as
FATWA-E-ALAMGIRI which clearly prohibits the offering
of prayer by Muslim at such places. More so the KASAUTI
pillars and the carvings of gods and Goddesses thereon
will clearly show that this place could not be used by a
true Muslim for offerring his prayers therein. It will also be
seen that the place wrongly alleged as mosque virtually
stood land-locked by Hindu Temple, wherein there was
the worship of the deity going on. Entry to this inner
enclosure was also obstructed.
The British tried to set up the descendents of MIR
BAQI, a Shiya Muslim, as the MUTWALLI, but he denied
the TAULAAT and never looked after the disputed place in
any capacity, what to say of looking after as as
MUTWALLI thereof.
2750. In replication, while replying written statement of
defendant no. 10, the plaintiffs have said that Nirmohi Akhara
through its Pujaris has always been managing the disputed
premises. However, in para 16 it has made averments regarding
ownership and management of only outer enclosure and
says as under:
16. That outer enclosure was owned and managed by
Nirmohi Akhara, plaintiff. . . . . Since 1982 the outer
enclosure is in possession of Receiver appointed by Court
in Reg. Suit No. 39/82 pending in the Court of Civil Judge
2648
III Faizabad.
2751. The issues no. 2, 4, 10, 15 and 28 (Suit-4) read as
under:
"Whether the plaintiffs were in possession of the
property in suit upto 1949 and were dispossessed from the
same in 1949 as alleged in the plaint?" (Issue 2)
"Whether the Hindus in general and the devotees of
Bhagwan Sri Ram in particular have perfected right of
prayers at the site by adverse and continuous possession
as of right for more than the statutory period of time by
way of prescription as alleged by the defendants?" (Issue
4)
"Whether the plaintiffs have perfected their rights by
adverse possession as alleged in the plaint?" (Issue 10)
"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?" (Issue 15)
"Whether the defendant no.3 has ever been in
possession of the disputed site and the plaintiffs
were never in its possession?" (Issue 28)
2752. The relevant pleadings are in paras 2, 11 and 11(a)
of the plaint which read as under:
2. . . . . . The mosque and the graveyard is vested in
the Almighty. The said mosque has since the time of its
construction been used by the Muslims for offering prayers
and the graveyard has been used as graveyard. . . .
11. That the Muslims have been in peaceful possession
of the aforesaid mosque and used to recite prayer in it, till
23.12.1949 when a large crowd of Hindus, with the
2649
mischievous intention of destroying, damaging or defiling
the said mosque and thereby insulting the Muslim religion
and the religious feelings of the Muslims, entered the
mosque and desecrated the mosque by placing idols
inside the mosque. The conduct of Hindus amounted to an
offence punishable under sections 147, 295 and 448 of the
Indian Penal Code.
11(a) That assuming, though not admitting, that at one time
there existed a Hindu temple as alleged by the defendants
representatives of the Hindus on the site of which emperor
Babar built the mosque, some 433 years ago, the Muslims,
by virtue of their long exclusive and continuous possession
beginning from the time the mosque was built and
continuing right upto the time some mischievous persons
entered the mosque and desecrated the mosque as alleged
in the preceding paragraphs of the plaint, the Muslims
perfected their title by adverse possession and the right,
title or interest of the temple and of the Hindu public if any
extinguished.
2753. The defendant no. 1 while denying paras 2 and 11 of
the plaint in paras 23 and 25 of his written statement have said:
23. That para 23 of the plaint is wrong. The suit is
hopelessly time barred. The Muslims have not been in
possession of the property in dispute since 1934 and
earlier.
25. That the Muslims were never in possession of the
temple called Ram Janam Bhumi. If ever they were in
possession of the so-called Babri mosque, there possession
ceased thereon in 1934, and since then Hindus are
holding that temple in their possession and their
2650
possession has ripened into statutory adverse possession
thereon since 1934. Prior to 1934 continuous daily Hindu
puja is being done in that temple and the Muslims have
never said their prayers since 1934 in the temple falsely
described as Babri Mosque.
2754. Similar is the stand taken in the written statement of
defendant no. 2. Paras 23, 25 and 28 are not quoted being almost
verbatim.
2755. In the common replication filed in reply to the
written statement of defendants no. 1 and 2, plaintiffs in paras
25, 28, 34 and 35 have pleaded:
25. The allegations contained in para 25 of the written
statement are denied. The Hindu Public never held the
mosque and Ganje-Shahidan in their possession nor did
puja therein since 1934 as alleged by them.
28. Denied. The Muslim public has been in possession of
the property in suit as mosque for the last 450 years
when the mosque was constructed.
34. That it is absolutely wrong that the Hindu Public
took possession of the property in dispute in 1934 and is
holding possession of it as temple since then and have thus
completed title by adverse possession. The possession of
the Muslims community continued as ever and they have
been saying their prayers in the mosque as such. The
Hindu public of course in 1934, did some mischief to
destroy the mosque and damage was caused to some extent,
which was got repaired by the Government at the cost of
the Government and the Hindu public was charged with
punitive tax. It is absolutely baseless that the Hindu public
came in possession much less peaceful possession of the
2651
property in suit.
35. That the Muslim public as representative of the
wakf has been in continuous possession of the property
in suit for last 450 years, i.e., since the time the mosque
was constructed and even if the Hindu public had any
interest whatsoever in the property in suit before that
period the Muslim public representing the wakf
perfected his title to the property in suit by their long
undisturbed open possession against the interest of the
Hindu public which amounts to adverse possession of
the wakf and thus title or interest if any, of Hindu public
has extinguished.
2756. The defendants no. 3 and 4 in their written statement
in paras 11, 13(C), 29, 30, 34 and 35 have said as under:
11. . . . . the question of any Muslim or the Muslim
community having been in peaceful possession of the same
and having recited prayers till 23-12-49 does not arise. . . .
13(C). . . . . The said Temple Ram Chabutra had an history
of judicial scanning since 1885 A.D. and it existence and
possession over temple Ram Chabutra was ever since in
possession of Nirmohi Akhara and no other but Hindus
allowed to enter and worship there and put offering in form
of money, sweets, fruits, flowers etc. which has always been
received by Panches of Nirmohi Akhara.
29. That the said temple has ever since been in the
possession of the defendant no. 3 and none other but
Hindus have ever since been allowed to enter or worship
therein and offerings made there, which have been in form
of money, sweets, flowers and fruits and other articles and
things, have always been received by the defendants 3 and
2652
4 through their Pujaris.
30. That no Mohamedan could or ever did enter in the
said temple buildings. But even if it be attempted to be
proved that any Mohamedan ever entered it which would
be totally wrong and is denied by the answering
defendants, no Mohamedan has ever been allowed to enter
or has ever attempted to enter it atleast ever since the year
1934.
34. . . . . . plffs for the Muslim community or any of its
members have not been in possession within limitation over
the property in dispute.
35. That even if the plaintiffs succeed in showing that any
Muslim ever said prayers in the building in question or
used the same as a Mosque, or that the possession of the
answering defendant and the Deity (Shri Thakur Ram
Janki) was for any period of time disturbed by the Muslims
or any of them, the answering defendant and the Deity,
have again matured their title by continuous and adverse
possession, open and hostile to the plaintiff and their
community by remaining in continuous possession of the
said building, that is, the temple of Janam Bhoomi for more
than 12 years and in any case ever since 1934, during
which period the Hindus have been continuously doing
worship and making offerings to the deity installed therein
and the answering defendant have been managing the said
temple and taking offerings made thereat.
2757. In the additional written statement dated 28/29
November, 1963, the defendants no. 3 and 4 in paras 38 and 39
have said:
38. The building in question was always a temple as
2653
shown in the written statement of the answering
defendants. Emperor Babar never built a mosque as
alleged by the plaintiffs and Muslims were never in
possession of the building in question.
39. The allegation of the plaintiffs in their amended
paragraph 11(a) of the plaint that some mischievous
persons entered the mosque and desecrated it is only the
mischievous concoction. No question of the Muslims
perfecting their title by adverse possession or of the
extinction of the right, title or interest of the temple and of
the Hindu public at all arises as the Muslims were never in
possession.
2758. In the replication the plaintiffs in paras 27, 30, 32,
34, 35, 37, 38 and 39 have said:
27. Denied. The property in suit is not a temple as
alleged and has never been in possession of the
defendants as alleged.
30. Denied. The Muslim public has always been saying
prayers and visiting the Mosque and Ganje-Shahidan
which is the property in suit for last 450 years when the
mosque was built.
32. Denied. The defendants have never been in
possession or in-charge of the property in suit as alleged.
The filing of the suit mentioned in this para is admitted.
Rest is denied.
34. Denied. The plaintiffs and Muslims public have
been in possession for last 450 years.
35. Denied. The plaintiffs have been in possession of the
property in suit as Mosque and Ganje-Shahidan for last
450 years and it is absolutely wrong that the Hindu public
2654
ever had possession of any sort over the property in suit as
temple, as alleged by the defendants in this para.
37. That the Muslim public had been in continuous and
open possession of the mosque and Ganje-Shahidan for last
450 years, i.e., the time when the mosque was built. In 1934
of course the Hindu public out of mischief attempted to
destroy the mosque and in their attempt they damaged the
mosque at places which damage was repaired by the
Government at the expense of the Government and Hindu
public was penalised by punitive tax for their unlawful
actions.
38. That the possession of the Muslim public was not
disturbed and they remained in possession of the property
as mosque and saying their usual prayers continuously
upto December 1949 when Hindu public by force entered
the mosque, by breaking open the lock of the mosque and
desecrated the mosque by placing idols inside the
mosque which being made by the police proceedings under
section 145 Cr.P.C. were started and to avoid
apprehension of breach of peace the mosque was placed in
custody of a Receiver. The Receiver is still holding the
property for the benefit of Muslim public.
39. That the Muslim public as representative of wakf has
been in continuous possession of the property in suit for
last 450 years i.e. since the mosque was built and even if
the Hindu public had any interest whatsoever in the
property in suit before that period of 450 years the
Muslim public as representative of wakf has perfected title
to the property in suit by their long undisturbed open
possession against the interest of Hindu public to their
2655
knowledge which amounts to adverse possession of the
wakf and thus the title or interest, if any, of the Hindu
public has been extinguished.
2759. The additional written statement dated 21
st
August,
1995 of defendant no. 3, para 2 and 3(i) says:
2. That the contents of para 20 of the plaint is evasive
and plaintiffs who are not in possession nor they were in
possession ever over the disputed inner or outer site. The
narration of Receiver's possession in this para by
plaintiffs can only be clubbed with the inner disputed site
i.e. the main temple bounded by letters B, B1, B2, B3, D2,
D1 and letters D.C.B. Shown in annexure. A map of this
additional W.S. The outer part of disputed sites comprises
with Sri Ram Chabutara temple, Chhatti Pujan Sthal,
Panch Mukhi Shankar Ganesh Ji Kirtan Mandap,
Bhandar House of Panches of Nirmohi Akhara. All
belonging to Nirmohi Akhara and has ever been in the
possession of Nirmohi Akhara through Panches of Nirmohi
Akhara from before the human memory. Even on the date
of attachment under the order of Additional City
Magistrate, Faizabad dated 29.12.1949 an attachment
Fard was prepared. A true copy is being attached as
Annexure 'C' to this Additional Written statement.
3(1) . . . . . The Chabutara is in possession of the
defendant no. 3, Nirmohi Akhara.
2760. The defendant no. 10 while denying the above
mentioned paragraphs of the plaint has said in paras 25 and 26
as under:
25. That the plaintiffs have never been in possession of
the property in dispute, nor they have any right to take
2656
possession thereof or make any constructions thereon,
under the law of the country as aforesaid.
26. That the land and property in dispute has been
throughout in uninterrupted possession of the Hindu
community as a whole and in the ownership of Lord Sri
Ram, and the plaintiffs never had or have any concern with
the land and property in dispute.
2761. In the additional written statement dated 12
th
September, 1995 the defendant no. 10 in para 1 says:
1. . . . . The Hindus have all along been in possession over
the entire area of Shri Ram Janma Bhoomi. The land in
question has all along been in possession of Hindus and
devotees of Lord Shri Ram.
2762. Defendant no. 13, Baba Abhiram Das and defendant
no. 14, Pundarik Mishra have contested the claim of plaintiffs,
stating in paras 23, 25 and 28 as under:
23. . . . . The Muslims have not been in possession of the
property in dispute since 1934 and earlier.
25. That the members of the Hindu Community have
from time immemorial been worshipping the site of Janam
Bhum upto this time by virtue of their right and the
Muslims were never in possession of the temple called as
Ram Janam Bhawan. If ever they were in uninterrupted
possession of the falsely called Babri Mosque their
possession ceased there on in 1934 and since then Hindus
are holding that temple in their possession and their
possession has ripened into statutory adverse possession
therein since 1934. Even prior to 1934 continuous daily
Hindu Puja is being done in that temple and the Muslims
have never offered their prayers since 1934 in the temple
2657
falsely described as 'Babri Mosque'.
28. . . . . . the plaintiffs were never in possession over the
temple in dispute since 1934 and the Hindus were holding
it adversely to them to their knowledge.
2763. The defendant no. 13/1 in its written statement in
paras 11, 11A and 31 says as under:
11. That the contents of paragraph 11 of the plaint are
denied. The Muslims were never in possession of the
alleged 'mosque'. They never could recited prayers
therein, and never recited any prayers therein till
23.12.1949, or any date even remotely within 12 years of
the institution of the suit. Correct facts are stated in the
Additional Pleas.
11A. . . . . There was and there could be no question of any
exclusive or continuous possession by the Muslims over the
site of the ancient Hindu Temple or any part or portion
of Sri Rama Janma Bhumi, which was by itself an object
of worship by the Hindus and as such a Deity having the
status of a juridical person in the eye of law. . . . . The act
of Mir Baqi was a fleeting act of trespass and not an act of
entering into adverse possession by a person claiming
ownership against the true owner, and no Muslim could by
any such act of trespass or its repetition, confer any right,
title or interest in the nature of a Waqf in favour of ALLAH
for the purposes of a mosque. According to Muslim law,
ALLAH alone is the owner in possession of all Waqf
property. A Mutwalli is a mere manager, and neither the
Mutwalli nor the beneficiaries of a Muslim Waqf, can claim
or have any right of ownership or possession as an owner
for, or on behalf of ALLAH. Title by way of a Muslim
2658
Waqf, cannot, therefore, be acquired by adverse
possession, for Allah does not accept the Waqf of property
by a wrongful act of adverse possession. The Deity of
BHAGWAN SRI RAMA VIRAJMAN in the ancient Temple
at Sri Rama Janma Bhumi, and the ASTHAN SRI RAMA
JANMA BHUMI which was by itself a Deity and
worshiped as such since ever and had a juristic
personality of its own, continued to own and possess the
property rights of ownership and possession of the space of
Sri Rama Janma Bhumi at Ayodhya, without any dent on
them by any such acts of trespass as the demolition of the
Temple or the attempt to raise mosquelike structure
thereat. . . . . . The Muslims did not get any title by adverse
possession, and the pre-existing right, title and interest of
the Deities continued to exist uninterrupted, by any such
act of Mir Baqi as is said to have been committed during
Babars time over 400 years ago. . . . . . that the Muslims
having lost whatever fleeting possession they might have
had by trespass over a part of the area of Sri Rama Janma
Bhumi, that was finally and effectively brought to an end,
and they have no right, title or interest whatsoever in the
land or the mosque-like structure at Sri Rama Janma
Bhumi, Ayodhya.
31. That after the annexation of Avadh and the first war
of independence, miscalled the Sepoy Mutiny by the British,
an inner enclosure for the three-domed structure was
created by raising a boundary wall with iron gratings in
the courtyard of the building, which separated and Rama
Chabutra and the Charans and the Sita Rasoi, from the
building and divided the courtyard into two parts. The
2659
inner part in which the three-domed structure was
situated, was land-locked from all sides by the outer part
in which the Rama Chabutra, the Charan and the Sita
Rasoi were situate. The British thus tried to confine the
Hindus to worship their Deities in the outer part of the
courtyard, but no Muslim could enter the inner part of
the courtyard or the three-domed structure within it,
except by passing through the outer courtyard, which had
Hindu places of worship in it and was in their exclusive
and constant occupation. This laid the seeds of trouble off
and on whenever any Muslims wanted to go inside. The
result was that no Namaz was offered inside the three-
domed structure, inspite of the attempt of the British
Government to induce the Muslims to do so by raising the
inner boundary wall. This was a calculated attempt by the
Britishers to encourage the Muslims to use the
abandoned place as a 'mosque' and create differences
between their Hindu and Muslim subjects, with the object
of maintaining their power, particularly in the context of
the First War of Independence in which the Hindus and the
Muslims had fought the British power shoulder to shoulder
like brothers. However, the attempt to induce the Muslims
to use the building inside the inner enclosure as a 'mosque'
did not succeed. There was an over-helming number of
Hindus living all round the place, and the local Muslim
population knew that the place was not a proper place for
offering Namaz, as it was not a mosque according to the
true tenets of Islam. The Hindus never left the place and
continued to worship the ASTHAN through such
symbols of the DIVINE SPIRIT as the CHARANS, the
2660
SITA-RASOI and the Idol of BHAGWAN SRI RAMA LALA
VIRAJMAN on the Rama Chabutra within its precincts.
2764. In the additional written statement the defendants
no. 13/1, Mahant Dharam Das in para 48 says:
48. . . . . . site always was and continues to be a place of
worship for the Hindus and owned and possessed by Shir
Ramalala Virajman at Sri Ram Janma Bhumi.. . . . .
2765. The defendant no. 17 in his additional written
statement dated 14.09.1995 has averred in paras 1 and 23 as
under:
1. . . . . . The Hindus have all along been in possession
over the entire area of Shri Ram Janambhoomi. The land
in question has all along been in possession of Hindus
and devotees of Lord Shri Ram. . . . .
23. That it is pertinent to mention that no suit has been
brought by any person or body of persons from the Muslim
side claiming dispossession of the deity. Thus the
possession of the deity is hostile to the interest of the
plaintiffs which is in their knowledge, but no suit has been
filed against the deity i.e. Shri Ram Lala Virajman. Thus
the deity has perfected his title by remaining in adverse
possession and the plaintiffs are stopped from challenging
the existence of deity now and claiming possession which
has become time barred.
2766. The defendant no. 18 in his written statement in para
29 said:
29. That contesting defendant does not take even a drop
of water without the darshan of the said Lord Rama
installed in the disputed place known as Janam Bhumi
Lord Rama is a stadio of the answering defendants. The
2661
answering defendant is doing such darshan of the said
Lord Rama continuously for 30-32 years. And thus accrued
a right of Darshan of the said Lord Rama by prescription
and long user which the answering defdt. have enjoined
peacefully and without any interruption for more 30-32
years.
2767. The defendant no. 20 in para 44 and 48 of his
written statement said:
44. That before the middle of the 19
th
century, as
mentioned above, Ayodhya was regarded as a stronghold
of Hindus and the Ram Janma Bhumi was at all material
time accessible to Hindus. Since then Hindus are in
peaceful possession of the place and the temple in dispute
and are performing the worship therein peacefully and
uninterruptedly.
48. That, in the above circumstances, the ouster of
Hindu community from Ram Janma Bhumi did not ever
take place. The Hindus have always been and are still
today in lawful possession and shall always be deemed to
be in lawful possession of the site in dispute. In the
alternative, even supposing without admitting that the
Hindus were ousted, yet they have thereafter regained
possession and have been exercising their rights of worship
peacefully and to the knowledge of the plaintiffs for more
than twelve years and thus perfected their title in the eyes
of law. The suit is barred by limitation.
2768. The issue no. 16 (Suit-5) read as under:
"Whether the title of plaintiffs 1 & 2, if any, was
extinguished as alleged in paragraph 25 of the written
statement of defendant no.4? If yes, have plaintiffs 1 and 2
2662
reacquired title by adverse possession as alleged in
paragraph 29 of the plaint?"
2769. The above issue has been framed with reference to
para 29 of the plaint and para 25 of the written statement of
defendant no. 4 which (relevant extract) read as under:
(Plaint)
29. The Receiver was not authorised to remove any
person from the possession or the custody of the premises,
and in fact the Receiver never interfered with the
possession of the Plaintiff Deities. No party to a
proceeding could dispossess a third party, nor could the
Receiver interfere with the possession of a person who is
not a party to the proceedings. At the highest, the Receiver
acted like a Shebait. He did not disturb the possession of
the plaintiff Deities. Their possession over the building
premises in dispute ever since the installation of the first
Plaintiff's Idol on the night between the 22
nd
and 23
rd
December, 1949, is admitted by all the concerned parties.
Thus, independently of the original title of the Plaintiff
Deities which continued all along, the admitted position
of their possession places the matter of their title beyond
any doubt or dispute. Even if there had been any person
claiming title to the property adversely to the Plaintiff
Deities, that would have been extinguished by their open
and long adverse possession, which created positively and
affirmatively and proprietary title to the premises in the
Plaintiff Deities.
(Written statement of defendant no. 4)
25. That the contents of para 25 of the plaint are also
incorrect and hence denied as stated and in reply thereto it
2663
is submitted that there never remained any deity in the
mosque in question. It is also incorrect to say that no valid
waqf of the mosque was ever created and the reference of
command of law made in the para under reply is also
incorrect and misleading.
It further submitted that the muslims' possession has
remained uninterrupted and continuous of the mosque
in question since its construction and upto 22-12-1949
(and as such the alleged right or title, if any, of anyone else
over the same has ceased to exist and the alleged right and
title shall be deemed to have extinguished) on account of
the uninterrupted and adverse possession of the muslims
over the mosque in question for more than 420 years.
2770. From the above pleadings it is evident that on one
hand the Muslim parties claim to possess the disputed building
since the date of its construction and offering prayer (Namaz)
thereat but simultaneously have taken the plea of adverse
possession and have claimed the right of ownership on the basis
of expiry of limitation for re-entering into possession by the
alleged Hindu owner in case they are able to prove their case of
ownership. The Hindus similarly have staked their claim
otherwise.
2771. The pleadings and evidence in support of the above
issues divide the period of dispute since 1528 AD into four, (1)
prior to 1528 AD; (2) prior to 1855 AD; (3) from 1855 AD to
1934 AD; and (4) from 1934 AD to 22/23 December 1949.
2772. Sri Jilani, learned counsel for the plaintiff has drew
our attention to some documents, namely, (1) Exhibit 19, Suit-1
(Vol. 5 page 61) which is a report dated 28.11.1858 submitted
by one Sri Sheetal Dube, Thanedar Awadh removing the
2664
unauthorised construction made in the inner courtyard; (2)
Exhibit 20, Suit-1 (Vol. 5 page 65) letter dated 30.11.1858 of
Mohd. Khateen Moazim abour encroachment by the aesthetic in
the inner courtyard; (3) Exhibit A-70, Suit-1 (Vol. 8 page 573)
dated 05.12.1858; (4) Exhibit 21, Suit-1 (Vol. 5 page 69) dated
15.12.1858 the report of Sheetal Dube, Thaendar Awadh; (5)
Exhibit 22, Suit-1 (Vol. 5 page 73) dated 15.12.1858; (6)
Exhibit A-69, Suit-1 (Vol. 8 page 569) dated 15.12.1858; (7)
Exhibit 23, Suit-4 (Vol. 10 page 135) dated 9.4.1860; (8)
Exhibit 4, Suit-4 (Vol. 10 page 35) dated 1861; (9) Exhibit 54,
Suit-4 (Vol. 12 page 359) dated 12.03.1861; (10) Exhibit 55,
Suit-4 (Vol. 12 page 365) dated 16.3.1861; (11) Exhibit A-15,
Suit-4 dated 5/6.9.1863; (12) Exhibit 6, Suit-4 (Vol. 10 page 39)
dated 30.10.1865; (13) Exhibit 7, Suit-4 (Vol. 10 page 41) dated
30.10.1865; (14) Exhibit A-13, Suit-1 (Vol. 6 page 173) dated
25.09.1866; (15) Exhibit 29, Suit-1 (Vol. 5 page 105) dated
12.10.1866; (16) Exhibit 8, Suit-4 (Vol. 10 page 43) dated
22.08.1871; (17) Exhibit 26, Suit-1 (Vol. 5 page 91) dated
22.08.1871; (18) Exhibit A-20, Suit-1 (Vol. 7 page 231) dated
22.8.1871; (19) Exhibit 15, Suit-1 (Vol. 5 page 43) dated
14.05.1877; (20) Exhibit 16, Suit-4 (Vol. 10) dated 13.12.1877;
(21) Exhibit 16, Suit-1 (Vol. 5 page 45) dated 13.12.1877; (22)
Exhibit 30, Suit-1 (Vol. 5 page 107) dated 13.12.1877; (23)
Exhibit 17, Suit-5 (Vol. 20 page 187) dated 18.6.1883; (24)
Exhibit-17, Suit-4 (Vol. 10 page 87) dated 18.6.1883; (25)
Exhibit 24, Suit-1 (Vol. 5 page 83) dated 18.06.1883; (26)
Exhibit 18, Suit-1 (Vol. 5 page 57) dated 02.11.1883; (27)
Exhibit 34, Suit-1 (Vol. 5 page 131) dated 12.01.1884; (28)
Exhibit 27, Suit-1 (Vol. 5 page 95) dated 22.01.1884; (29)
Exhibit 28, Suit-1 (Vol. 5 page 99) dated 27.06.1884; (30)
2665
Exhibit A-22, Suit-1 (Vol. 7 page 237) dated 19.1.1885; (31)
Exhibit 26, Suit-5 dated 19.01.1885; (32) Exhibit A-24 and 25,
Suit-1 (Vol. 7 page 271 and 277 dated 06.12.1885; (33) Exhibit
A-23, Suit-1 (Vol. 7 page 257) dated 22.12.1885; (34) Exhibit
A-26, Suit-1 (Vol. 7 page 283) dated 24.12.1885; (35) Exhibit
A-27, Suit-1 (Vol. 7 page 319) dated 18/26.3.1886; (36) Exhibit
A-49, Suit-1 (Vol. 8 page 477) dated 12.05.1934; (37) Exhibit
A-6, Suit-1 (Vol. 6 page 556) dated 5.6.1934; (38) Exhibit A-43,
Suit-1 (Vol. 8 page 459) dated 06.10.1934; (39) Exhibit A-51,
Suit-1 (Vol. 8 page 483) dated 25.02.1935; (40) Exhibit A-50,
Suit-1 (Vol. 8 page 479) dated 16.04.1935; (41) Exhibit A-48,
Suit-1 (Vol. 8 page 473) dated 21.11.1935; (42) Exhibit A-53,
Suit-1 (Vol. 8 page 493) dated 02.01.1936; (43) Exhibit A-46,
Suit-1 (Vol. 8 page 471) dated 27.1.1936; (44) Exhibit A-52,
Suit-1 (Vol. 8 page 489) dated 30.4.1936; (45) Exhibit 53, Suit-
4 (Vol. 12 page 355) dated 26.3.1946; (46) FIR dated 23
rd
December, 1949, Exhibit 51, Suit-4 (Vol. 12 page 337); (47)
Exhibit 13, Suit-4 dated 14.2.1950; (48) Exhibit 9, Suit-4 (Vol.
10 page 45) dated 16.2.1950; (49) Exhibit 25, Suit-4 (Vol. 10
page 141) dated 30.7.1953; (50) Exhibit A-44 and A-45, Suit-1
(Vol. 8 page 461 and 467); (51) Exhibit A-21, Suit-1 (Vol. 7
page 233); (52) Exhibit 49 and 50, Suit-4. Besides, he referred
to the statement of PWs 1-9, 14, 21, 23 and 25 to show that
there was continuous prayer (Namaz) in the disputed building.
2773. On the contrary, Hindu parties have claimed their
continuous possession on the property in dispute since time
immemorial and in any case since 1934 AD. They say that no
prayer (Namaz) has been offered in the disputed building earlier
and in any case since 1934 AD and, therefore, possession of
Hindus on the disputed site cannot be disturbed after expiry of
2666
the period of limitation within which they could have been
dispossessed by the Muslim parties. Plaintiff (Suit-3) has also
got examined a number of witnesses deposing about worship
prior and since 1934 till 1949 and thereafter and the possession
of Nirmohi Akhara throughout.
2774. Sri P.N.Mishra, assisted by Miss Ranjana Agnihotri,
Advocates appearing on behalf of defendant No.20 (Suit-4)
submitted that the defence taken by defendant No.20 is that
there was no mosque at all at any point of time and it was
throughout a temple wherein Lord Ram was being worshipped
by Hindus, being his birth place. However, in any case, the plea
of adverse possession on the part of plaintiffs (Suit-4) is
wholly misconceived. He pointed out that the basic ingredients
to prove a case of adverse possession are that there should be
hostile, open, continuous possession against the rightful
owner. The possession should be peaceful, uninterrupted and
must have continued for 12 years. There should be animus
possidendi with the person claiming adverse possession against
rightful owner. He submits that the plaintiffs (Suit-4) have not
pleaded anywhere in the plaint as to who was the owner of the
disputed property whereagainst the plaintiffs (Suit 4) held
property in dispute and that too open, hostile and peaceful.
There is no date of possession on which the same became
adverse to the real owner and in any case the possession was
never peaceful since throughout interruption and interference of
Hindus had continued. He contends submits that in fact the
evidence on record show that the disputed property continued to
be in possession of the Hindus, if not in entirety the substantial
part thereof, and it cannot be said that the plaintiffs (Suit-4)
have matured their right thereat. He further submits that on one
2667
hand the plaintiffs have claimed themselves to be the owner of
the property in question but simultaneously the plea of adverse
possession continuing for 12 years and more, maturing in title,
has been taken though the law is well settled that inconsistent
and mutually destructive pleas cannot be taken. He submits that
if the plaintiffs (Suit-4) intended to raise the plea of adverse
possession maturing in title, it was incumbent upon them to give
up the title, which is not the case and therefore, the case set up
by the plaintiffs (Suit-4) in respect to adverse possession is
liable to be rejected. On the various aspects, connected with the
plea of adverse possession, he cited and relied on the following
authorities: Qadir Bux Vs. Ramchand (supra); Hemaji
Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Others
AIR 2009 SC 103; Ejas Ali Qidwai & Ors. Vs. Special
Manager, Court of Wards, Balrampur Estate & Ors. AIR
1935 Privy Council 53; Mosque known as Masjid Shahid
Ganj & Ors. Vs. Shiromani Gurdwara Parbandhan
Committee (supra); P.T. Munichikkanna Reddy Vs.
Revamma (supra); T. Anjanappa and others Vs.
Somalingappa and another 2006 (7) SCC 570; Amrendra
Pratap Singh Vs. Tej Bahadur Prajapati & Ors. AIR 2004 SC
3782; Abubakar Abdul Inamdar & Ors. Vs. Harun Abdul
Inamdar & Ors. AIR 1996 SC 112; Dr. Mahesh Chand
Sharma Vs. Smt. Raj Kumari Sharma & Ors. AIR 1996 SC
869; Hari Chand Vs. Daulat Ram, AIR 1987 SC 94; Sm.
Bibhabati Devi Vs. Ramendra Narayan Roy & others AIR
1947 Privy Council 19; Raja Rajgan Maharaja Jagatjit Singh
(supra); Maharaja Sir Kesho Prasad Singh Bahadur Vs.
Bahuria Mt. Bhagjogna Kuer and others AIR 1937 Privy
Council 69; Nair Service Society Limited Vs. K. C. Alexander
2668
(supra); Ram Charan Das Vs. Naurangi Lal & Ors. AIR 1933
Privy Council 75; Bhupendra Narayan Sinha Vs. Rajeswar
Prosad Bhakat & Ors. AIR 1931 Privy Council 162;
P.Lakshmi Reddy Vs. L.Lakshmi Reddy (supra), Ramzan &
Ors. Vs. Smt. Gafooran Ors. AIR 2008 All 37, Prabhu Narain
Singh Vs. Ram Niranjan & Ors. AIR 1983 All 223; Smt.
Bitola Kuer Vs. Sri Ram Charan & Ors. AIR 1978 All 555;
Shyam Sunder Prasad (supra); D. N. Venkatarayappa & Anr.
Vs. State of Karnataka & Ors. 1997 (7) SCC 567; Babu Lal
Sharma Vs. State of Madhya Pradesh 2009 (7) SCC 161; S.M.
Karim Vs. Mst. Bibi Sakina AIR 1964 SC 1254; B. Leelavathi
Vs. Honnamma and another, (2005) 11 SCC 115;
Dharamarajan & Ors. Vs. Valliammal & Ors., 2008 (2) SCC
741; A.S. Vidyasagar Vs. S. Karunanandam 1995 Supp (4)
SCC 570; P.Periasami Vs. P.Periathambi & Ors., 1995 (6)
SCC 523.
2775. Sri Mishra also submitted that in the case of adverse
possession, if continued for 12 years maturing in title
extinguishing the title of the rightful owner, no equity lie in
favour of the person who has raised the plea of adverse
possession. The claim of adverse possession needs to be
examined strictly and if there is any gap, the plea must have to
fail. Time creates title and therefore animus, who possess the
property adversely against true owner to his knowledge, is the
essence of the matter. It is said that in Mohammedan Law, the
concept of limitation is not recognised. Nor that of adverse
possession. The suit, as pleaded in the plaint, does not prove the
case of adverse possession. It is said that the doctrine of
'election' is also applicable here since the plea with respect to
ownership as well as adverse possession maturing in ownership
2669
simultaneously cannot be taken.
2776. It is contended that, in law, if a person does not
acquire title, the same cannot be vested only by reason of
acquiescence or estoppel on the part of others and reliance is
placed on National Insurance Co. Ltd. Vs. Mastan and
another 2006 (2) SCC 641, R.N. Gosain Vs. Yashpal Dhir
1992 (4) SCC 683, Nagubai Ammal and others Vs. B. Shama
Rao and others AIR 1956 SC 593 and C. Beepathumma
(supra).
2777. In order to show that there was no possession of
Muslims and in any case, since 1934, the Muslims have never
visited the disputed site and it was continuously in possession of
the Hindus, he referred to certain statements and affidavits filed
before the City Magistrate, Faizabad in proceedings under
Section 145 Cr.P.C. He referred to the statements of Peeru dated
11
th
February, 1950 which is on record of the proceedings under
Sections 145 Cr.P.C. (Register Vol.1, page 99) and the written
statement of Anisurrahman (Vol. 2 Page 215) which has been
adopted by Mohd. Hasim, one of the plaintiff of Suit-4. Placing
reliance on M/s Kamakshi Builders Vs. M/s Ambedkar
Educational Society and others AIR 2007 SC 2191; Dinomoni
Chowdharani (supra), Baroda Prosad Roy Chaudhry Vs. Rai
Manmath Nath Mitra 41 Indian Cases 456 and State of T.N.
Vs. T. Thulasingam and others 1994 Supp. (2) SCC 405, he
submitted that the statements before the Magistrate in
proceedings under Section 145 Cr.P.C. can be taken and
considered in evidence in a civil suit.
2778. Sri M.M. Pandey, learned counsel for the plaintiffs
(Suit-5) in the context of Issue No. 16 (Suit-5) has submitted:
(A) Apart from the indefeasible rights of the Deity as
2670
mentioned by Katyayana (see para 54 supra), and King's
duty to protect the Deity (see para 43 supra) the
fundamental claim of Plaintiffs of OOS 5 of 1989 is that
under Hindu Law, neither the Deity nor Deity's property is
'alienable', hence alienation thereof is void; consequently
no right or title thereto can be prescribed by 'Adverse
Possession'. This claim is supported by very recent
decision of Supreme Court in the case of Amarendra
Pratap Singh Vs. Tej Bahadur Prajapati and others,
2004 SC 3782 = (2004) 10 SCC 65. The matter related to
sale of certain lands by aboriginal tribal to a certain non-
tribal purchaser without the statutory permission of the
Competent Authority under Orissa Scheduled Areas
Transfer of Immovable Property (by Scheduled Tribes)
Regulation 1956; Para 3 of the Regulation provided that
any transfer of immovable property by a member of a
Scheduled Tribe to a non-tribal shall be absolutely null
and void and of no force or effect unless made in favour
of another member of a Scheduled Tribe "or with the
previous consent in writing of the Competent Authority".
Previous permission not having been obtained, the
purchaser claimed to have perfected title to transferred
land by Adverse Possession for over 12 years under
Limitation Act. In para 22, dealing with Article 65 and
Section 27 of Limitation Act, the SC emphasised a
distinction between acquisition of title 'as of own right'
and due to 'default or inaction of the true owner to protect
the property', and held the person in adverse possession
"acquires title not on his own but on account of default or
inaction on the part of the real owner, which stretched
2671
over a period of 12 years results into extinguishing of the
latter's title. It is that extinguished title of the real owner
which comes to vest in the wrong-doer. The law does not
intend to confer any premium on the wrong doing of a
person in wrongful possession; it pronounces the penalty
of extinction of title on the person who though entitled to
assert his right and remove the wrong-doer and re-enter
into possession, has defaulted and remained inactive for a
period of 12 years, which the law considers to be
reasonable for attracting the penalty." In para 23, the SC
held: "The right in the property ought to be one which is
alienable and is capable of being acquired by the
competitor. Adverse possession operates on an alienable
right. The right stands alienated by operation of law, for it
was capable of being alienated voluntarily and is sought to
be recognised by doctrine of adverse possession.."
Reliance was placed, in para 24, on Mahdav Rao Waman
Vs Raghunath Venkatesh, AIR 1923 PC 205 holding that
it was somewhat difficult to see how a stranger to a Watan
can acquire a title by adverse possession for 12 years, the
alienation of which is, in the interests of the State,
inalienable; the SC noticed that this decision of PC was
followed in Karimullah Khan Vs. Bhanu Pratap Singh,
AIR 1949 Nag 265 holding that "title by adverse
possession on Inam land, Watan land and Debutter was
incapable of acquisition". Debutter is 'dedicated'
property, like property of Deity. Rejecting the claim of
adverse possession, SC held in para 25: "It is clear that the
law does not permit a right in immovable property vesting
in a tribal to be transferred in favour of or acquired by a
2672
non-tribal unless permitted by the previous sanction of the
Competent Authority It is so because a tribal is
considered by the Legislature not to be capable of
protecting his own immovable property .. The State
is the custodian and trustee of the immovable property of
Tribal and is enjoined to see that the Tribal remains in
possession of such property. No period of limitation is
prescribed by Para 3A of the Regulation of 1956. The
prescription of period of 12 years in Article 65 of
Limitation Act becomes irrelevant so far as the
immovable property of a Tribal is concerned. The Tribal
need not file a Civil Suit which is governed by the law of
limitation. It is enough if he, or anyone on his behalf
moves the State, or the State itself moves into action to
protect him and restores the property to him. To such an
action, neither Article 65 of Limitation Act nor Section 27
thereof would be attracted." This ruling of the Supreme
Court applies fully to these Suits. The antecedents of a
Tribal, under the Orissa Regulation, strongly resemble
those of a Hindu Deity. Manu's edict no. 163 of Chapter 8
says: 'an act done by a personwholly dependant
is invalid' ("The Laws of Manu" Penguin Classics, Edn
2000 page 170). Similar proposition is set out in Verse 35
of Chapter 1 in Part 2 (English page 288-89; Sanskrit page
106) of Naradsmriti ("Critical Edition and Translation"
1st Edn 2003 by Richard W. Larviere Shri Jainendra
Press, New Delhi): "Those who know the teaching of
Shastra say that anything done by a minor or by one who
is not independent is invalid." Protection of disabled
persons rights in Hindu Law is mentioned in Yajnavalkya
2673
Smriti in verse 25 of 2nd Prakarnam of 2nd Chapter at
page 94 (Translated by M.N.Dutta, First Edn 2005,
Parimal Publications, Delhi) as follows: "But these
limitations of 20 & 10 years respectively do not hold
good in the case of .. properties of invalid and
minor.."Deity is 'wholly dependant' and 'perpetual
minor', hence Deity's immovable property is
inalienable; the Deity is unable to manage it's affairs
which are managed by a Shebait, and if the Shebait
mismanages or fails to protect its interests, a 'next friend'
or 'worshipper' is competent to move the machinery of law
and the State, too, is under an obligation to protect its
rights/interests. Since Hindu Law alone contains the
provisions applicable to Hindu Deity in the absence of
any Statute setting out the rights/obligations/antecedents
of a Hindu Deity and contains the law that rights of the
Deity are not lost by adverse possession for any length of
time, Indian Limitation Act (including Article 65 or
Section 27) cannot be applied to the Deity, hence its rights
cannot be lost by adverse possession. In this connection a
very significant observation by PC may be noticed in the
case of Mosque known as Masjid Shahidganj Vs.
Shiromani Gurdwara Prabandhak Committee 1940 PC
116 on the possible effect of the Mosque being treated to
be a 'juristic person', the suit having been filed in the name
of the Mosque as Plaintiff. At page 119, Col. 2, Sir
George Rankin observed as follows: "The choice of this
curious form of suit was motivated apparently by a notion
that if the Mosque could be made out to be a juristic
person, this would assist in establishing that a mosque
2674
remains a mosque for ever, that Limitation cannot be
applied to it, that it is not property but owner of the
property." This is precisely what the Plaintiffs of OOS 5
of 1989 claim; Plaintiffs 1 & 2 are Hindu Deities/Juristic
Entities in their own right in accordance with the Hindu
Law, are Owners of Themselves, are everlasting incapable
of being destroyed, are not mere properties, hence law of
Limitation cannot be applied to them. Another significant
observation by the PC, in the context of application of
Limitation Act to suits relating to Muslim or Hindu
religious institutions, at page 122 col. 1 is: "At the same
time, the procedure of the Courts in applying Hindu or
Mahomedan Law has to be appropriate to the law 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 an essential thereto, e.g. that an Idol may be the
owner of property". This necessarily called for
application of the principles of Hindu Dharmashastra Law
to the question of limitation in respect of the Hindu Deity,
but in stead of doing so, the PC simply made a broad
observation at page 122 col. 1, that 'there has never been
any doubt that the property of a Hindu religious
endowment including a thakurbari is subject to the law
of limitation'. Citations noted by PC are: 37 I.A. 147,
Damodar Das Vs. Lakhan Das and 64 I.A. 203 (= AIR
1937 PC 185), Ishwari Bhubanshwari Thakurani Vs.
Brojo Nath Dey. The expression, 'there has never been
any doubt.' only indicates that PC was simply
relying upon previous decisions which, did not really
2675
examine the Hindu Dharmashastras or the Oudh Laws
Act pointed out by us above. Indeed in Ishwar
Bhuvaneswari's case, the property had ceased to be
'dedicated' by virtue of a 'consent decree of 1904', hence
point of adverse possession over Deity's property did not
survive (see page 188-89); even so, the PC held (at page
187 col. 2) that the efffect of a valid deed of dedication is
to place the property comprised in the endowment extra
commercium and beyond the reach of creditors. The
decision, therefore, is not an authority on the point of
'adverse possession/Limitation Act'. Rulings holding that
Limitation Act applies to Hindu Deity or that Deity is not
a perpetual minor or does not suffer from disability, suffer
from a common deficiency, viz., they do not deal with
Hindu Dharmashastra Law or Oudh Laws Act or effect of
Referential Legislation contained in Oudh Laws Act or the
doctrine of "Reading Down" a statutory provision; they
were rendered 'per Incuriam', hence are not binding
precedents: State of UP & another Vs. Synthetics &
Chemicals Ltd, (1991) 4 SCC 139 (paras 40 & 41),
Sunita Devi Vs. State of Bihar, (2005) 1 SCC 608 (para
19) and Mayuram Subramanian Vs. CBI, (2006) 5 SCC
752 (para 11).
(B) Referring to an English decision, the SC has noticed
in paras 30 and 31 of 2007 (25) LCD 1374 (SC), RT.
Munichikanna Reddy Vs. Revamma that in Adverse
Possession, 'Force' is excluded (so forcible demolition of
Hindu Temple and erection of Babari Mosque, would not
qualify for adverse possession' indeed, such place is
Ankah, taken Ghasbi, i.e. by force where saying of Namaz
2676
is held to be illegal by Islamic scriptures. Manu's edict no.
168 in Chapter 8, on use of force is as follows: "What is
given by force, enjoyed by force, and also what is written
by force, indeed all matters that are done by force Manu
has declared to be undone" ("The Laws of Manu",
Penguin Classics Edn 2000, page 170). That is what must
be done to DS.
(C) Katyayana Smriti clearly lays down that mere
wrongful possession for any length of time of Temple
property would not confer ownership on anybody.
'Temple' takes within its ambit, both the Deity and the
structure within which it resides; Temple is the Home of
the Deity. Since Hindu Deity is a juristic person, it enjoys
right of 'constructive possession'. There can be no 'ouster'
of Swyambhu Deity; trespass by an outsider, adversely to
the Deity, only constitutes temporary suspension of user
of the property by Deity which stands automatically
restored when the trespass terminates or is sought to be
terminated through Court process. Since Law of
Limitation does not apply to a Hindu Deity, termination of
trespass at any point of time revives Deities' actual
possession supplementing its constructive possession. This
concept of 'revival' is not to be confused with a case where
title/right to property is lost under Section 27 of
Limitation Act or by adverse possession there is no
'revival of right'; the title/right of a Hindu Deity is never
lost, what is revived is actual possession only.
(D) The record of these suits establish that members of
Muslim Community of Ayodhya could not enjoy peaceful
or uninterrupted possession over DA so as to enable them
2677
to acquire title by adverse possession. The law of Adverse
possession was created by Statute for the first time in
1871; but between 1608-11, William Finche found Hindus
treating DA/DS to be the birthplace of Ram, in 1786
Tieffenthaler found Hindu devotees worshipping DA/DS
as birthplace of Ram and in 1853 itself, Muslims ceased to
enjoy exclusive possession of DS, as DA including DS
i.e. the building itself within the boundary walls of
disputed area, were forcibly taken possession of by
Hindus, leading to fierce fighting in which Muslims were
killed of whom 75 (or so) were buried outside the disputed
premises (called Ganj Shaheedan), that although in 1855,
the British administrators erected a wall through the
platform in front of DS to separate the areas of possession
of Hindus & Muslims, a determined group of Sikhs re-
occupied DS in 1858 and could not be dislodged despite
Administration's intervention and that worship was done
by Hindus inside the DS. Ext. 2 of SB Suit dated
29.6.1880, the Register of Muafi clearly record that this is
the Masjid in Ayodhya for possession of which Hindus
and Muslims fight and are rival claimants. This proves
that throughout the period from 1853 to 1880 Muslims
could never be in continuous peaceful possession of
DS/DA. In application dated 02.11.1883, Ext. 18, Md.
Asghar admitted possession of Mahant Raghubar Das not
only on the Chabutra Janmasthan but also on Sita Rasoi
abutting towards North of DS which is mentioned by
Tieffenthaler too. In 1885 came the Suit of Mahant
Raghubar Das. Md. Asghar/Md. Javed as Mutawalli of
Babri Basjid stated in their written statement Ext. A-23
2678
that the Ram Chabutra was constructed in 1857 which the
Muslims had complained of and applied for demolition
and orders were passed for its demolition and that the
plaintiffs and other Hindus used to have ingress/egress
into the campus of the Masjid, had been
assembling/dispersing, coming/going and making
offerings as they do at other religious places like
Imambaras/Masjids for their spiritual benefit. This proves
that the Hindu devotees had access to DS and were
worshipping and making offerings inside the DS. Thus SB
have failed to establish continuous peaceful possession for
any specific period of 12 years to acquire title by adverse
possession.
(E) It is admitted that in the year 1934 during communal
riots caused by cow slaughter by some Muslims at
Ayodhya the domes of DS and substantial part thereof
were destroyed by the Hindus. The damage was repaired
by the government and not by SB or the Muslim
community on their own. In Para 22 of written statement
dated 21.2.1950 (In reply to Plaint of Gopal Singh
Visharads Suit OOS 1 of 1989), Defendant Nos. 1 to 5
(all local Muslims including Zahoor Ahmad D-1, Haji
Pheku D-2 and Md. Faiq D-3) stated that Namaz had been
offered in DS till 16.12.1949. The truth of this statement is
challenged on behalf of the Plaintiff, particularly in view
of important contradictions appearing in evidence on
behalf of SB, and the significant position is that SB filed
the Suit OOS 4 of 1989 on 18.12.1961, i.e., at least two
days after the expiry of 12 years from the date
(16.12.1949) when the last Namaz was allegedly offered.
2679
Indeed two reports dated 10.12.1949 (Ext. A-63) and
dated 23.12.1949 (Ext. A-64) of Waqf Inspector Md.
Ebrahim addressed to the Secretary of SB establish that at
least from September 1949 no Namaz or Azan was being
offered in DS except on Fridays and that too under great
stress and fear of Hindus, Sikhs and Bairagis. Considering
all the material on record it is established that DS was not
used by Muslims peacefully and regularly for any specific
period of 12 years during any time at least from 1853 to
22.12.1949 and that, on the contrary, Hindu devotees had
continued to offer their prayers throughout that period and
specifically from 1934 Plaintiffs 1 and 2 had been in
possession of DS to the exclusion of Muslims.
2779. Except Suit No.1, ownership of the disputed
property has been claimed in all the remaining suits. The
plaintiffs (Suit-3) have claimed disputed site and the building as
property of Nirmohi Akhara. In Suit-4 the plaintiffs' claim that
the disputed building being a mosque is a waqf and therefore, it
belongs to Almighty. In Suit-5, the plaintiffs No.1 and 2 claimed
to be the Deity (a juristic personality) and therefore, owner of
the disputed site.
2780. Since some of the parties have claimed their title
matured due to inaction on the part of true owner for the last
more than twelve years despite possession, hostile to them,
therefore, the title of the true owner having extinguished, they
have become owner by virtue of adverse possession and for this
reason, the aforesaid nine issues have been framed to consider
the above pleas.
2781. To understand the concept of adverse possession
it would be necessary to have a clear idea about the concept of
2680
possession and ownership in respect to immovable property
and also the law, if any, before the codification of law during
British regime, i.e., on and after 1857 AD, and also during the
period of East India Company when the matter used to be
governed by the Regulations framed by the East India
Company. Here we propose to consider the above concept also
in the context of laws followed by Hindus and Muslims
prevailing at the relevant time.
2782. First we come to the English Law on the subject.
2783. Ihering defines possession, whenever a person
looks like an onwer in relation to a thing he has possession,
unless possession is denied to him by rules of law based on
convenience. Apparently this definition does not give any
explicit idea on the subject. It only states that the concept of
possession is an ever changing concept having different
meaning for different purposes and different frames of law.
2784. Pollock says, In common speech a man is said to
be in possession of anything of which he has the apparent
control or from the use of which he has the apparent powers of
excluding others. The stress laid by Pollock on possession is
not on animus but on de facto control.
2785. Savigny defines possession, intention coupled
with physical power to exclude others from the use of material
object. Apparently this definition involves both the elements
namely, corpus possesssion is and animus domini.
2786. The German Jurist Savigny laid down that all
property is founded on adverse possession ripened by
prescription. The concept of ownership accordingly as observed
by him involve three elements-Possession, Adverseness of
Possession, (that is a holding not permissive or subordinate, but
2681
exclusive against the world), and Prescription, or a period of
time during which the Adverse Possession has uninterruptedly
continued.
2787. Holmes opined that possession is a conception
which is only less important than contract.
2788. According to Salmond on Jurisprudence, 12
th
Edition (1966) (First Edition published in 1902) by P.J.
Fitzgerald, Indian Economy Reprint 2006 published by
Universal Law Publishing Co. Pvt. Ltd. Delhi (hereinafter
referred to as Salmond's Jurisprudence). On page 51, it say
that the concept of possession is as difficult to define as it is
essential to protect. It is an abstract notion and is not purely a
legal concept. It is both a legal and a non-legal or a pre-legal
concept. He tried to explain the concept of possession with
reference to different factual and legal concepts.
2789. The first one is possession in fact. It is a
relationship between a person and a thing. The things one
possesses in his hand or which one has in his control like clothes
he is wearing, objects he is keeping in his pocket etc. For such
things it can be said that he is in possession of the things in fact.
To possess one would have to have a thing under his physical
control. If one captures a wild animal, he get possession of it but
if the animal escapes from his control, he looses possession. It
implies that things not amenable in any manner to human
control cannot form the subject matter of possession like one
cannot possess sun, moon or the stars etc. Extending the above
concept, Salmond says that one can have a thing in his control
without actually holding or using it at every given moment of
time like possession of a coat even if one has taken it off and put
down or kept in the cupboard. Even if one fall asleep, the
2682
possession of the coat would remain with him. If one is in such
a position, has to be able in the normal course of events to
resume actual control when one desires, the possession in fact of
the thing is there. Another factor relevant to the assessment of
control is the power of excluding other people. The amount of
power that is necessary varies according to the nature of the
object.
2790. The possession consisted of a corpus possessionis
and animus possidendi. The former comprised both, the power
to use the thing possessed and the existence of grounds for the
expectation that the possessor's use will not be interfered with.
The latter consisted of an intent to appropriate to oneself the
exclusive use of the thing possessed.
2791. Then comes possession in law. A man, in law,
would possess only those things which in ordinary language he
would be said to possess. But then the possessor can be given
certain legal rights such as a right to continue in possession free
from interference by others. This primary right in rem can be
supported by various sanctioning rights in personam against
those who violates the possessor's primary right; can be given a
right for compensation for interference and a dispossession and
the right to have his possession restored from the encroacher.
2792. Another facet of possession is immediate or
mediate possession. The possession held by one through
another is termed mediate while that acquired or retained
directly or personally can be said to be immediate or direct.
There is a maxim of civil law that two persons could not be in
possession of the same thing at the same time. (Plures eandem
rem in solidum possidere non possunt). As a general proposition
exclusiveness is of the essence of possession. Two adverse
2683
claims of exclusive use cannot both be effectually realised at the
same time. There are, however, certain exceptions, namely, in
the case of mediate possession two persons are in possession of
the same thing at the same time. Every mediate possessor stands
in relation to a direct possessor through whom he holds. Two or
more persons may possess the same thing in common just as
they may own it in common.
2793. Then comes incorporeal possession. It is
commonly called the possession of a right and is distinct from
the corporeal possession which is a possession of the thing.
2794. In The Elementary Principles of Jurisprudence
by G.W. Keeton, II Edition (1949) published by Sir Isaac
Pitman and Sons Ltd. London (First published in 1930),
possession has been dealt in Chapter XV. It says:
'Possession,' says an old proverb, is nine points of
law. Put in another way, this implies that he who has
conscious control of an object need only surrender his
control to one who can establish a superior claim in law.
2795. The essentials of possession in the first instance
includes a fact to be established like any other fact. Whether it
exists in a particular case or not will depend on the degree of
control exercised by the person designated as possessor. If his
control is such that he effectively excludes interference by
others then he has possession. Thus the possession in order to
show its existences must show corpus possessionis and an
animus possidendi.
2796. Corpus possessionis means that there exists such
physical contact of the thing by the possessor as to give rise to
the reasonable assumption that other persons will not interfere
with it. Existence of corpus broadly depend on (1) upon the
2684
nature of the thing itself, and the probability that others will
refrain from interfering with the enjoyment of it; (2) possession
of real property, i.e., when a man sets foot over the threshold of
a house, or crosses the boundary line of his estate, provided that
there exist no factors negativing his control, for example the
continuance in occupation of one who denies his right; and (3)
acquisition of physical control over the objects it encloses.
Corpus, therefore, depends more upon the general expectations
that others will not interfere with an individual control over a
thing, then upon the physical capacity of an individual to
exclude others.
2797. The animus possidendi is the conscious intention of
an individual to exclude others from the control of an object.
2798. Possession confers on the possessor all the rights of
the owner except as against the owner and prior possessors.
Possession in law has the advantage of being a root of title.
2799. There is also a concept of constructive possession which
is depicted by a symbolic act. It has been narrated with an
illustration that delivery of keys of a building may give right to
constructive possession all the contents to the transferee of the
key.
2800. It would also be useful to have meaning of
possession in the context of different dictionaries.
2801. In Oxford English-English-Hindi Dictionary
published by Oxford University Press, first published in 2008,
11
th
Impression January 2010, at page 920:
possession-1. the state of having or owning something. 2.
Something that you have or own
2802. In The New Lexicon Webster's Dictionary of the
English Language (1987), published by Lexicon Publications,
2685
Inc. at page 784:
pos-ses-sion-a possessing or being possessed II that
which is possessed II (pl.) property II a territory under the
political and economic control of another country II (law)
actual enjoyment of property not founded on any title of
ownership to take possession of to begin to occupy as
owner II to affect so as to dominate.
2803. In Chambers Dictionary (Deluxe Edition), first
published in India in 1993, reprint 1996 by Allied Publishers
Limited, New Delhi at page 1333 defines 'possess' and
'possession' as under :
possess poz-es', vt to inhabit, occupy (obs.); to have or
hold as owner, or as if owner; to have as a quality; to
seize; to obtain; to attain (Spenser); to maintain; to
control; to be master of; to occupy and dominate the mind
of; to put in possession (with of, formerly with in); to
inform, acquaint; to imbue; to impress with the notion of
feeling; to prepossess (obs).
possession the act, state or fact of possession or being
possessed, a thing possessed; a subject foreign territory
2804. In Corpus Juris Secundum, A Complete
Restatement of the Entire American Law as developed by All
Reported Cases (1951), Vol. LXXII, published by Brooklyn,
N.Y., The American Law Book Co., at pages 233-235:
Possession expresses the closest relation of fact
which can exist between a corporeal thing and the person
who possesses it, implying an actual physical contact, as
by sitting or standing upon a thing; denoting custody
coupled with a right or interest of proprietorship; and
possession is inclusive of custody. although
2686
custody is not tantamount to possession. In its full
significance, possession connotes domination or
supremacy of authority. It implies a right and a fact; the
right to enjoy annexed to the right of property, and the fact
of the real detention of thing which would be in the hands
of a master or of another for him. It also implies a right to
deal with property at pleasure and to exclude other
persons from meddling with it. Possession involves power
of control and intent to control, and all the definitions
contained in recognized law dictionaries indicate that the
element of custody and control is involved in the term
possession.
The word possession is also defined as meaning
the thing possessed; that which anyone occupies, owns, or
controls; and in this sense, as applied to the thing
possessed, the word is frequently employed in the plural,
denoting property in the aggregate; wealth; and it may
include real estate where such is the intention, although
this is not the technical signification.
It is also defined as meaning dominion; as, foreign
possessions; and, while in this sense the term is not a word
of art descriptive of a recognised geographical or
governmental entity, it is employed in a number of federal
statues to describe the area to which various congressional
statutes apply.
Possession in the sense of ownership, and as a
degree of title, and as indicating the holding or retaining of
property in one's power or control, is treated in Property.
2805. In Black's Law Dictionary Seventh Edition
(1999), published by West Group, St. Paul, Minn., 1999, at page
2687
1183:
possession. 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. 3. (usu. pl.)
Something that a person owns or controls; PROPERTY (2).
4. A territorial dominion of a state or nation.
2806. In Black's Law Dictionary (supra) the following
categories of possession have also been referred and explained:
Actual possession, adverse possession, bona fide
possession, civil possession, constructive possession,
corporeal possession, derivative possession, direct
possession, effective possession, exclusive possession,
hostile possession, immediate possession, incorporeal
possession, indirect possession, insular possession, mediate
possession, naked possession, natural possession,
notorious possession, peaceable possession, pedal
possession, possession in fact, possession in law,
possession of right, precarious possession, quasi
possession and scrambling possession.
2807. Since the nature of possession, its various
ingredients and effect etc. in the peculiar kind of this case may
be required to be considered at the appropriate state, we find it
necessary to see the manner in which the above kinds of
categories of possession have been described in Black's Law
Dictionary (supra):
actual possession. Physical occupancy or control over
property.
adverse possession. A method of acquiring title to real
2688
property by possession for a statutory period under certain
conditions, esp. a non-permissive use of the land with a
claim of right when that use is continuous, exclusive,
hostile, open, and notorious.
constructive adverse possession. Adverse possession in
which the claim arises from the claimant's payment of taxes
under color of right rather than by actual possession of the
land.
bona fide possession. Possession of property by a person
who in good faith does not know that the property's
ownership is disputed.
civil possession. Civil law. Possession existing by virtue of
a person's intent to own a property even though the person
no longer occupies or has physical control of it.
constructive possession. Control or dominion over a
property without actual possession or custody of it. - Also
termed effective possession; possessio fictitia.
corporal possession. Possession of a material object, such
as a farm or a coin. - Also termed natural possession;
possissio corporis.
derivative possession. Lawful possession by one (such as a
tenant) who does not hold title.
direct possession. Something that a person owns or
controls.
effective possession. See constructive possession.
exclusive possession. The exercise of exclusive dominion
over property, including the use and benefit of the
property.
hostile possession. Possession asserted against the claims
of all others, including the record owner. See Adverse
2689
Possession.
immediate possession. Possession that is acquired or
retained directly or personally. - Also termed direct
possession.
incorporeal possession. Possession of something other
than a material object, such as an easement over a
neighbour's land, or the access of light to the windows of a
house. - Also termed possessio juris; quasi-possession.
indirect possession. See mediate possession.
mediate possession. Possession of a thing through
someone else, such as an agent. - Also termed indirect
possession.
naked possession. The mere possession of something, esp.
real estate without any apparent right or colorable title to
it.
natural possession. Civil law. The exercise of physical
detention or control over a thing, as by occupying a
building or cultivating farmland.
notorious possession. Possession or control that is evident
to others; possession of property that, because it is
generally known by people in the area where the property
is located, gives rise to a presumption that the actual
owner has notice of it. - Also termed open possession; open
and notorious possession.
peaceable possession. Possession (as of real property) not
disturbed by another's hostile or legal attempts to recover
possession.
pedal possession. Actual possession, as by living on the
land or by improving it.
possession in fact. Actual possession that may or may not
2690
be recognized by law. - Also termed possessio naturalis.
possession in law. 1. possession that is recognized by the
law either because it is a specific type of possession in fact
or because the law or some special reason attributes the
advantages and results of possession to someone who does
not in fact possess. 2. see constructive possession. - Also
termed possessio civilis.
possession of a right. The de facto relation of continuing
exercise and enjoyment of a right as oppose to the de jure
relation of ownership. - Also termed possession juris.
precarious possession. Civil law. Possession of property
by someone other than the owner on behalf of or with
permission of the owner.
quasi possession. See incorporeal possession.
scrambling possession. Possession that is uncertain
because it is in dispute.
2808. In Words and Phrases Permanent Edition, Vol.
33 (1971), published by St. Paul, Minn. West Publishing Co., at
pages 91-92:
'Possession' as used in statute is not synonymous
with physical bodily presence of adverse claimant;
continuous bodily presence is not required, but rather
question is one of fact which must be determined from
circumstances of each case.
Possession is a common term used in every day
conversation that has not acquired any artful meaning.
Possession, in any sense of term, must imply,
first, some actual power over the object possessed, and,
secondly, some amount of will to avail oneself of that
power.
2691
Possession is one of the most vague of all vague
terms, and shifts its meaning according to the subject-
matter to which it is applied,--varying very much in its
sense, as it is introduced either into civil or into criminal
proceedings.
Possession is that condition of fact under which one
can exercise his power over a corporeal thing to the
exclusion of all others.
To constitute possession, there must be such
appropriation of the land to the individual as will apprise
the community in its vicinity that the land is in his
exclusive use and enjoyment, and notice of possession to
be sufficient must be of the open and visible character,
which from its nature will apprise the world that the land
is occupied, and who the occupant is.
2809. In Jowitt's Dictionary of English Law Vol. 2
Second Edition-1977, Second Impression-1990, published by
London Sweet & Maxwell Limited, at pages 1387-1389:
Possession, the visible possibility of exercising
physical control over a thing, coupled with the intention
of doing so, either against all the world, or against all the
world except certain persons. There are, therefore, three
requisites of possession. First, there must be actual or
potential physical control. Secondly, physical control is
not possession, unless accompanied by intention; hence, if
a thing is put into the hand of a sleeping person, he has not
possession of it. Thirdly, the possibility and intention must
be visible or evidenced by external signs, for if the thing
shows no signs of being under the control of anyone, it is
not possessed; hence, if a piece of land is deserted and left
2692
without fences or other signs of occupation, it is not in the
possession of anyone, and the possession is said to be
vacant. The question whether possession of land is vacant
is of importance in actions for recovering possession.
Possession is actual, where a person enters into
lands or tenements conveyed to him; apparent, which is a
species of presumptive title, as where land descended to the
heir of an abator, intruder, or disseisor, who died seised;
in law, when lands had descended to a man and he had not
actually entered into them, or naked, that is, mere
possession, without colour of right.
The primary meaning is physical control. A
secondary meaning is physical control by an agent or
servant, or by relation back, e.g., by the owner having
entered without remaining in physical possession (Ocean
Accident etc., Corporation v. Ilford Gas Co. [1905] 2 K.B.
493).
Possession may also extend over a thing in itself
uncontrolled within an inclosure which is controlled, such
as horses, sheep or cattle within a fenced field. See Animals
Ferae Naturae.
Possession may connote different kinds of control
according to the nature of the thing or right over which it is
being exercised. A man may possess an estate of land; if he
leases it he will be in possession of the rents and profits
and the reversion, but not of the land which is in the lessee
who may being an action of trespass against the lessor. In
regard to real property a mere right without possession is
not sufficient to found an action of trespass; for instance,
until 1926 a lessee before entry having a mere interesse
2693
termini could not bring an action for trespass on the land
demised (Wallis v. Hands [1893] 2 Ch. 75). See Possessio
Fratris.
The adage, possession is nine parts of the law,
means that the person in possession can only be ousted
by one whose title is better than his; every claimant must
succeed by the strength of his own title and not by the
weakness of his antagonist's.
Possession does not necessarily imply use or
enjoyment.
Possession gives rise to peculiar rights and
consequences. The principal is that a possessor has a
presumptive title, that is to say, is presumed to be absolute
owner until the contrary is shown, and is protected by law
in his possession against all who cannot show a better title
to the possession than he has.
With reference to its origin, possession is either with
or without right.
Rightful possession is where a person has the right to
the possession of (that is, the right to possess) property,
and is in the possession of it with the intention of exercising
his right. This kind of possession necessarily varies with
the nature of the right from which it arises; a person may
be in possession of a thing by virtue of his right of
ownership, or as lessee, bailee, etc.; or his possession may
be merely permissive, as in the case of a licensee; or it may
be a possession coupled with an interest, as in the case of
an auctioneer (Woolfe v. Horne (1867) 2 Q.B.D. 358). So
the right may be absolute, that is, good against all persons:
or relative, that is, good against all with certain
2694
exceptions; thus a carrier or borrower of goods has a right
to their possession against all the world except the owner.
In jurisprudence, the possession of a lessee, bailee,
licensee, etc., is sometimes called derivative possession,
while in English law the possessory interest of such a
person, considered with reference to his rights against
third persons who interfere with his possession, is usually
called a special or qualified property, meaning a limited
right of ownership.
Possession without right is called wrongful or
adverse, according to the rights of the owner or those of
the possessor are considered. Wrongful possession is
where a person takes possession of property to which he is
not entitled, so that the possession and the right of
possession are in one person, and the right to possession in
another. Where an owner is wrongfully dispossessed, he
has a right of action to recover his property, or, if he has
an opportunity, he can exercise the remedy of recaption in
the case of goods, or of entry in the case of land.
2810. In Legal Thesaurus Regular Edition-William C.
Burton (1981), published by Macmillan Publishing Co., Inc.
New York., at page 391:
POSSESSION (Ownership), noun
authority, custody, demesne, domination, dominion,
exclusive, right, lordship, occupancy, possessio,
proprietorship, right, right of retention, seisin, supremacy,
tenancy, title
ASSOCIATED CONCEPTS: action to recover
possession, actual possession, adverse possession, chain of
possession, constructive possession, continuity of
2695
possession, continuous possession, debtor in possession,
estate in possession, holder in possession, hostile
possession, lawful possession, mortgagee in possession,
naked possession, notorious possession, open and
notorious possession, party in possession, peaceable
possession, person in possession, physical possession,
purchaser in possession, quiet possession, right of
possession, tenant in possession, undisturbed possession,
uninterrupted possession, unlawful possession, wrongful
possession.
FOREIGN PHRASES: Traditio nihil amplius
transferre debet vel potest, adeum qui accipit, quam est
apud eum qui tradit. Delivery ought to, and can, transfer
nothing more to him who receives than is in possession of
him who makes the delivery. Jus triplex est,-propietatis,
possessionis, et possibilitatis. Right is threefold,-of
property, of possession, and of possibility. In aequali jure
melior est conditio possidentis. In a case of equal right the
condition of the party in possession is the better. Pro
possessione praesumitur de jure. A presumption of law
arises from possession. Nihil praescribitur nisi quod
possidetur. There is no prescription for that which is not
possessed. Privatio praesupponit habitum. A deprivation
presupposes something held or possessed. Duorum in
solidum dominium vel possessio esse non potest. Sole
ownership or possession cannot be in two persons. Cum de
lucro duorum quaeritur, melior est causa possidentis.
When the question of gain lies between two persons, the
cause of the possessor is the better. Longa possessio parit
jus possidendi, et tollit actionem vero domino.-Long
2696
possession creates the right of possession, and deprives the
true owner of his right of action. Aliud est possidere, aliud
esse in possessione. It is one thing to possess; it is
another to be in possession. Quod meum est sine facto
meo vel defactu meo amitti vel in alium transferri non
potest. That which is mine cannot be transferred to another
without my act or my default. Quod meum est sine me
auferri non potest. What is mine cannot be taken away
without my consent. Nul charter, nul vente, ne nul done
vault perpetualment, si le donor n'est seise al temps de
contracts de deux droits, sc. Del droit de possession et
del droit de propertie. No grant, no sale, no gift, is valid
forever, unless the donor, at the time of the contract, has
two rights, namely, the right of possession, and the right of
property. Donatio perficitur possessione accipientis. A
gist is perfected by the possession of the receiver. Melior
est conditio possidentis, et rei quam actoris. The
condition of the possessor and that of the defendant is
better than that of the plaintiff. In pari delicto melior est
conditio possidentis. When the parties are equally in
wrong, the condition of the possessor is the preferable one.
Longa possessio jus parit. Long possession begets right.
Donator nunquam desinit possidere, antequam
donatorius incipiat possidere. A donor never ceases to
possess until the donee begins to possess. Non valet
donatio nisi subsequatur traditio. A gift is invalid unless
accompanied by possession. Nemo dare potest quod non
habet. No one is able to give that which he has not. Terra
manens vacua occupanti conceditur. Land remaining
vacant is given to the occupant. Non potest videri desisse
2697
habere qui nunquam habuit. A person who has never had
cannot be deemed to have ceased to have it. In pari causa
possessor potior haberi debet. In an equal cause he who
has the possession has the advantage. Cum par delictum
est duorum, semper oneratur petitor et melior habetur
possessoris cause. When there is equal fault on both
sides, the burden is always placed on the plaintiff, and
the cause of the possessor is preferred.
POSSESSION (Property), noun
asset, belonging, bona, chattel effect, goods, holding, item,
item of personalty, money, movable, possessio, res,
resource, treasure, valuable.
FOREIGN PHRASES: Non possessori incumbit
necessitas probandi possessiones ad se pertinere. It is
not incumbent on the possessor of property to prove that
his possessions belong to him.
POSSESSIONS, noun
assets, belongings, bonorum, capital, chattels, colonies,
domain, dominions, earnings, effects, equity, estate,
fortune, funds, goods, holdings, items of personalty,
material wealth, movables, pecuniary resources, personal
property, personalty, possessio, private property, property,
res, resources, stock, stock in trade, territory, treasure,
wealth, worldly belongings.
2811. In Mitra's Legal & Commercial Dictionary 5
th
Edition (1990) by A.N. Saha, published by Eastern Law House
Pvt. Ltd., at pages 558-559:
Possession, the visible possibility of exercising physical
control over a thing, coupled with the intention of doing so,
either against all the world, or against all the world except
2698
certain persons. There are, therefore, three requisites of
possession. First, there must be actual or potential physical
control. Secondly, physical control is not possession, unless
accompanied by intention; hence, if a thing is put into the
hand of a sleeping person, he has not possession of it.
Thirdly, the possibility and intention must be visible or
evidenced by external signs, for if the thing shows no signs
of being under the control of anyone, it is not possessed.
Possession is a polymorphous term which may have
different meanings in different contents. It is impossible to
work out a completely logical and precise definition of
Possession uniformly applicable to all situations in the
context of all statutes. Suptd. And Legal Rememberancer v.
Anil Kumar AIR 1980 SC 52:1979 Cr LJ 1390: (1979) 2
SCWR 334: 1979 Cr App R (SC) 282. Possession must be
conscious possession. S.D.O., Shiv Sagar v Goapl
Chandra AIR 1971 SC 1190. Possession must be de facto
possession as also precarious possession. Bishambhar v
State of Bihar 1979 Cr LJ (NOC) 197: 1979 BLJ 319.\
Possession or occupation may take various forms
and even keeping the household affects by the owner in the
premises is act of occupation. Bimal Devi v Kailash
Nandan AIR 1984 SC 1376.
There are two varieties of possession--(a) real or
actual possession, and (b) constructive or symbolical
possession.
The meaning of possession depends on the context
in which it is used. English law has never worked out a
completely logical and exhaustive definition of possession.
Towers & Co. Ltd. v Gray (1961) 2 All ER 68: (1961) 2 QB
2699
351.
Possession need not be physical possession, but can
be constructive, having power and control over the gun.
Gunwantlal v State AIR 1972 SC 1756.
2812. In P Ramanatha Aiyar's The Law Lexicon with
Legal Maxims, Latin Terms and Words & Phrases, Second
Edition 1997), published by Wadhwa and Company Law
Publishers, at pages 1481-1483:
1. Physical control, whether actual or in the eyes of law,
over property; the condition of holding at one's disposal (S.
66, T.P. Act); 2. the area in one's possession (S. 37, Indian
Evidence Act).
Possession is a detention or enjoyment of a thing which a
man holds or exercise by himself or by another, who keeps
or exercise it in his name.
Possession is said to be in two ways-either actual
possession or possession in law.
Actual Possession, is, when a man entreth into lands or
tenements to him descended, or otherwise.
Possession in Law, is when lands of tenements are
descended to a man, and he hath not as yet really, actually,
and in deed entered into them: And it is called possession
in law because that in the eye and consideration of the law,
he is deemed to be in possession, inasmuch as he is liable
to every mans action that will sue concerning the same
lands or tenements.
The term has been defined as follows: Simply the owning or
having a thing in one's power; the present right and power
to control a thing; the detention and control of the manual
or ideal custody of anything which may be the subject of
2700
property, for one's use of enjoyment, either as owner or as
the proprietor of a qualified right in it, and either held
personally or by another who exercises it in one's place
and name; the detention or enjoyment of a thing which a
man holds or exercise by himself or by another who keeps
or exercises it in his name; the act of possession a having
and holding or retaining of property in one's power or
control; the sole control of the property or of some physical
attachment to it; that condition of fact under which one can
exercise his power over a corporeal thing at his pleasure,
to the exclusion of all other persons. 171 IC 159=1937 ALJ
951=1937 ALR 913=1937 AWR 823=AIR 1937 All 735; 12
Bom LR 316=5 IC 457; 6 Bom LR 887; 16 CPLR 13; 4
NLR 78=8 Cr LJ 18.
There can be no possession without intention or
consciousness or will. Norendranath Masumdar, v. The
State, AIR 1951 Cal 140. (S. 19(f) Arms Act. 1878).
Possession need not be physical possession but can be
constructive, having power and control over the gun, while
the person to whom physical possession is given holds it
subject to that power or control. Gunwantlal v. The State
of M.P., AIR 1972 SC 1756, 1759.
Possession is a polymorphous term which may have
different meanings in different contents. The possession of
a fire arm must have the element of consciousness or
knowledge of that possession and when there is no actual
physical possession a control or dominion over it, there is
no possession.
The word possession naturally signifies lawful
possession. The possession of a trespasser could not be a
2701
possession of a tenant so as to attract Sec. 14(1). Bhagat
Ram v. Smt. Lilawati Galib, AIR 1972 HP 125, 130.
The word 'possessed' means the state of owning or having
in one's hand or power but even this broad meaning will
not apply in the case of a share or a woman when there has
been no partition by metes and bounds. Modi Nathubai
Motilal v. Chhotubhai Manibhai Besai, AIR 1962 Guj.
68, 77.
Obtaining a symbolic possession is in law equivalent to
obtain actual physical possession and has the effect of
terminating the legal possession of the person bound by the
decree and order. Umrao Singh v. Union of India; AIR
1975 Del. 188, 191.
The word 'possession' implies a physical capacity to deal
with the thing as we like to the exclusion of every one and a
determination to exercise that physical power on one's own
behalf. In Re Pachiripalli Satyanarayanan, AIR 1953
Mad 534.
Where an estate or interest in realty is spoken of as being
in possession, that does not, primarily, mean the actual
occupation of the property; but means, the present right
thereto or to the enjoyment thereof.
The word possession in S. 28 of the Limitation Act XV
of 1877, embraces both actual possession and possession
in law, 6 CWN 601.
The word possession in C.P. Code, includes constructive
possession, such as possession by a tenant. 25 B. 478(491).
Possession in Specific Relief Act (I of 1877), S. 9 does not
include joint possession, but refers to exclusive possession.
23 IC 618 (619).
2702
The word possession means the legal right to
possession. Health v. Drown, (1972) 2 All ER 561, 573
(HL).
2813. There is a distinction between the terms
possession, occupation and control. The distinction
between possession and occupation was considered in Seth
Narainbhai Ichharam Kurmi and another Vs. Narbada
Prasad Sheosahai Pande and others, AIR 1941 Nagpur 357
and the Court held:
Bare occupation and possession are two different
things. The concept of possession, at any rate as it is
understood in legal terminology, is a complex one which
need not include actual occupation. It comprises rather the
right to possess, and the right and ability to exclude others
from possession and control coupled with a mental
element, namely, the animus possidendi, that is to say,
knowledge of these rights and the desire and intention of
exercising them if need be. The adverse possession of
which the law speaks does not necessarily denote actual
physical ouster from occupation but an ouster from all
those rights which constitute possession in law. It is true
that physical occupation is ordinarily the best and the most
conclusive proof of possession in this sense but the two are
not the same. It is also true that there must always be
physical ouster from these rights but that does not
necessarily import physical ouster from occupation
especially when this is of just a small room or two in a
house and when this occupation is shared with others.
The nature of the ouster and the quantum necessary
naturally varies in each case.
2703
2814. The distinction between possession, occupation
or control was also considered in Sumatibai Wasudeo
Bachuwar Vs. Emperor, AIR (31) 1944 Bom. 125 and the
Court held:
Some documents containing perjudicial reports
were found in a box in the house occupied by the applicant
and her husband. When the house was raided by the police,
the husband was out and the applicant (wife) produced the
keys with one of which the box could be opened. In addition
to perjudicial reports, there were some letters in the box
addressed to the applicant. Held,. (1) that, prima facie, the
box containing the documents would be in the possession of
the husband and the mere fact that in his absence he had
left the keys with the applicant (wife) would not make her
in joint possession with himself; nor did the fact that there
were letters in the box addressed to the wife mean that she
was in joint possession of all the contents of the box; (2)
that the wife was in the circumstances in possession of the
box within the meaning of R. 39(1) of the Defence of India
Rules; (3) that occupation in R. 39 (2) of the Defence of
India Rules meant legal occupation, and the applicant
could not be held to be in occupation or control of the
house so as to render her guilty under R. 39 of the Defence
of India Rules.
2815. In Mitra's Law of Possession and Ownership of
Property reprint 2010 published by Sodhi Publication,
Allahabad, certain kinds of possession in the light of Courts'
verdict have been provided as under :
Continuous possession.- The meaning of the word
continue means to keep existing or happening without
2704
stopping and the word continuous describes something
that continues without stopping. In a case where the
plaintiff was in possession for a period of five years at a
time on the basis of a lease, the moment the period of lease
expired, the Court held in Kartik Mandal Vs. State of
Bihar AIR 2009 Pat. 33 that he was bound to restore
before the possession of the settler and cannot claim to be
in continuous possession.
Effective possession.- Where the plaintiff did not get the
possession of the land as to control it as per his desire
means that he is not having effective possession of the
land as held in Alkapuri Co-operative Housing Society
Ltd. Vs. Jayantibhai Naginbhai AIR 2009 SC 1948.
De jure possession.- A possession deemed in law though
actually it is in possession of another is de jure possession
as held in Kottakkal Co-operative Urban Bank Vs.
Balakrishna AIR 2008 Ker. 179.
Exclusive possession.- In Nirmal Kanta (Smt.) Vs. Ashok
Kumar 2008 (7) SCC 722, the respondent no. 2 was
accommodated by respondent no. 1 to assist him in his
cloth business by helping customers to assess the amount of
cloth required for their particular purposes. The said
activity did not give respondent no. 2 exclusive possession
for that part of the shop room from where he was operating
and where his sewing machine had been affixed. This view
taken by the Court below was upheld by the Apex Court.
Hostile possession A possession against the real owner
within his knowledge constitute hostile possession.
Where a person is not sure who is the true owner, the
question of his being in hostile possession does not arise
2705
and it would also not result in assuming that he was
denying title of true owner. This is what was held by this
Court in Ramzan Vs. Smt. Gafooran (supra). When a
person claims possession over a property showing himself
to be the owner, the question of showing hostile possession
would not arise. Similarly, in Gopendra Goswami Vs.
Haradhan Das AIR 2009 Gau 41, it was held that mere
possession over a land cannot be treated hostile to the
title of the real owner unless it is shown that the real
owner has the knowledge and thereupon the possession
of the stranger continued.
Physical possession.- It is the actual possession over the
land. (See : Dhara Singh Vs. Fateh Singh AIR 2009 Raj.
132)
Wrongful possession.- Possession contrary to law is the
wrongful possession.
2816. Possession can also be classified as under:
(a) De facto possession (b) De jure possession (c)
Symbolic possession (d) Joint possession (e) Concurrent
possession. Besides, some more categories are forcible
possession, independent possession, lawful possession,
permissive possession and settled possession.
2817. A retrospect of ancient post, the concept of
possession in ancient laws in different civilizations was known
to the mankind. A comparative study we find, in the work of
"Sir Henry Summer Maine" (in short 'Maine'). He is considered
to be the founder of comparative jurisprudence of ancient laws.
Much earlier in 1861 AD, comparative jurisprudence under the
heading Ancient Law-Its connection with the Early History
of Society and its Relation to Modern Ideas, was written by
2706
Sir Henry Sumner Maine. The edition before the Court is
one published by Dorset Press in 1986 at United States of
America.
2818. "Sir Maine" was highly influenced by Roman Law.
He observed in Chapter-I under the heading Ancient Codes:
The most celebrated system of jurisprudence known
to the world begins, as it ends, with a Code. From the
commencement to the close of its history, the expositors of
Roman Law consistently employed language which implied
that the body of their system rested on the Twelve
Decemviral Tables, and therefore on a basis of written law.
. . .
The ancient Roman code belongs to a class of
which almost every civilized nation in the world can show a
sample, and which, so far as the Roman and Hellenic
worlds were concerned, were largely diffused over them at
epochs not widely distant from one another. (Page 1)
2819. In respect to the Laws in East and in particular
Hindus, he observed:
But in the East, as I have before mentioned, the
ruling aristocracies tended to become religious rather than
military or political, and gained, therefore, rather than lost
in power; while in some instances the physical
conformation of Asiatic countries had the effect of making
individual communities larger and more numerous than in
the West; and it is a known social law that the larger the
space over which a particular set of institutions is diffused,
the greater is its tenacity and vitality. From whatever
cause, the codes obtained by Eastern societies were
obtained, relatively, much later than by Western, and wore
2707
a very different character. The religious oligarchies of
Asia, either for their own guidance, or for the relief of their
memory, or for the instruction of their disciples, seem in all
cases to have ultimately embodied their legal learning in a
code; but the opportunity of increasing and consolidating
their influence was probably too tempting to be resisted.
Their complete monopoly of legal knowledge appears to
have enabled them to put off on the world collections, not
so much of the rules actually observed as of the rules which
the priestly order considered proper to be observed. The
Hindoo code, called the Laws of Menu, which is certainly a
Brahmin compilation, undoubtedly enshrines many genuine
observances of the Hindoo race, but the opinion of the best
contemporary orientalists is, that it does not, as a whole,
represent a set of rules ever actually administered in
Hindostan. It is, in great part, an ideal picture of that
which, in the view of the Brahmins, ought to be the law. It
is consistent with human nature and with the special
motives of their authors, that codes like that of Menu
should pretend to the highest antiquity and claim to have
emanated in their complete form from the Deity. Menu,
according to Hindoo mythology, is an emanation from the
supreme God; but the compilation which bears his name,
though its exact date is not easily discovered, is, in point
of the relative progress of Hindoo jurisprudence, a recent
production. (Page 14)
2820. Further he says:
The fate of the Hindoo law is, in fact, the measure of
the value of the Roman code. Ethnology shows us that the
Romans and the Hindoos sprang from the same original
2708
stock, and there is indeed a striking resemblance between
what appear to have been their original customs. Even
now, Hindoo jurisprudence has a substratum of
forethought and sound judgment, but irrational imitation
has engrafted in it an immense apparatus of cruel
absurdities. From these corruptions the Romans were
protected by their code. It was compiled while the usage
was still wholesome, and a hundred years afterwards it
might have been too late. The Hindoo law has been to a
great extent embodied in writing, but, ancient as in one
sense are the compendia which still exist in Sanskrit,
they contain ample evidence that they were drawn up
after the mischief had been done. (Page 16-17)
2821. The concept of possession has been discussed by
"Sir Maine" in Chapter-VIII under the heading The Early
History of Property. Referring to the natural modes of
acquiring property known in Roman law he observed:
The wild animal which is snared or killed by the
hunter, the soil which is added to our field by the
imperceptible deposits of a river, the tree which strikes its
roots into our ground, are each said by the Roman lawyers
to be acquired by us naturally. (Page 203)
2822. Therefore, one of the mode of possession is
occupation or occupancy.
2823. "Sir Maine" further says :
Occupancy is the advisedly taking possession of
that which at the moment is the property of no man, with
the view (adds the technical definition) of acquiring
property in it for yourself. The objects which the Roman
lawyers called res nulliusthings which have not or
2709
have never had an ownercan only be ascertained by
enumerating them. Among things which never had an
owner are wild animals, fishes, wild fowl, jewels
disinterred for the first time, and lands newly discovered or
never before cultivated. Among things which have not an
owner are moveables which have been abandoned, lands
which have been deserted, and (an anomalous but most
formidable item) the property of an enemy. In all these
objects the full rights of dominion were acquired by the
Occupant, who first took possession of them with the
intention of keeping them as his ownan intention which,
in certain cases, had to be manifested by specific acts.
(Page 203)
If the Roman law of Occupancy is to be taxed with
having had permicious influence on any part of the modern
Law of Nations, there is another chapter in it which may be
said, with some reason, to have been injuriously affected.
In applying to the discovery of new countries the same
principles which the Romans had applied to the finding of a
jewel, the Publicists forced into their service a doctrine
altogether unequal to the task expected from it. Elevated
into extreme importance by the discoveries of the great
navigators of the 15
th
and 16
th
centuries, it raised more
disputes than it solved. The greatest uncertainty was very
shortly found to exist on the very two points on which
certainty was most required, the extent of the territory
which was acquired for his sovereign by the discoverer,
and the nature of the acts which were necessary to
complete the adprehensio or assumption of sovereign
possession. Moreover, the principle itself, conferring as it
2710
did such enormous advantages as the consequence of a
piece of good luck, was instinctively mutinied against by
some of the most adventurous nations in Europe, the
Dutch, the English, and the Portuguese. Our own
countrymen, without expressly denying the rule of
International Law, never did, in practice, admit the claim
of the Spaniards to engross the whole of America south of
the Gulf of Maxico, or that of the King of France to
monopolise the valleys of the Ohio and the Mississippi.
From the accession of Elizabeth to the accession of
Charles the Second, it cannot be said that there was at any
time thorough peace in the American waters, and the
encroachments of the New England Colonists on the
territory of the French King continued for almost a century
longer. Bentham was so struck with the confusion attending
the application of the legal principle, that he went out of
his way of eulogise the famous Bull of Pope Alexander the
Sixth, dividing the undiscovered countries of the world
between the Spaniards and Portuguese by a line drawn one
hundred leagues West of the Azores; and, grotesque as his
praises may appear at first sight, it may be doubted
whether the arrangement of Pope Alexander is absurder in
principle than the rule of Public Law, which gave half a
continent to the monarch whose servants had fulfilled the
conditions required by Roman jurisprudence for the
acquisition of property in a valuable object which could be
covered by the hand. (Page 206-207)
To all who pursue the inquiries which are the
subject of this volume Occupancy is pre-eminently
interesting on the score of the service it has been made to
2711
perform for speculative jurisprudence, in furnishing a
supposed explanation of the origin of private property. It
was once universally believed that the proceeding implied
in Occupancy was identical with the process by which the
earth and its fruits, which were at first in common, became
the allowed property of individuals. The course of thought
which led to this assumption is not difficult to understand,
if we seize the shade of difference which separates the
ancient from the modern conception of Natural Law. The
Roman lawyers had laid down that Occupancy was one of
the Natural modes of acquiring property, and they
undoubtedly believed that, were mankind living under the
institutions of Nature, Occupancy would be one of their
practices. How far they persuaded themselves that such a
condition of the race had ever existed, is a point, as I have
already stated, which their language leaves in much
uncertainty; but they certainly do seem to have made the
conjecture, which has at all times possessed much
plausibility, that the institution of property was not so old
as the existence of mankind. Modern jurisprudence,
accepting all their dogmas without reservation, went far
beyond them in the eager curiosity with which it dwelt on
the supposed state of Nature. Since then it had received the
position that the earth and its fruits were once res nullius,
and since its peculiar view of Nature led it to assume
without hesitation that the human race had actually
practised the Occupancy of res nullius long before the
organisation of civil societies, the inference immediately
suggested itself that Occupancy was the process by which
the 'no man's goods' of the primitive world became the
2712
private property of individuals in the world of history.
(Page 207-208)
2824. Maine has quoted Blackstone as under:
'The earth,' he writes, 'and all things therein were
the general property of mankind from the immediate gift
of the Creator. Not that the communion of goods seems
ever to have been applicable, even in the earliest ages, to
aught but the substance of the thing; nor could be extended
to the use of it. For, by the law of nature and reason he
who first began to use it acquired therein a kind of
transient property that lasted so long as he was using it,
and no longer; or to speak with greater precision, the right
of possession continued for the same time only that the act
of possession lasted. Thus the ground was in common, and
no part was the permanent property of any man in
particular; yet whoever was in the occupation of any
determined spot of it, for rest, for shade, or the like,
acquired for the time a sort of ownership, from which it
would have been unjust and contrary to the law of nature
to have driven him by force, but the instant that he quitted
the use of occupation of it, another might seize it without
injustice.' He then proceeds to argue that when mankind
increased in number, it became necessary to entertain
conceptions of more permanent dominion, and to
appropriate to individuals not the immediate use only, but
the very substance of the thing to be used. (Page 208-209)
2825. Explaining occupancy, Maine observes :
Occupancy first gave a right against the world to
an exclusive but temporary enjoyment, and that afterwards
this right, while it remained exclusive, became perpetual.
2713
Their object in so stating their theory was to reconcile the
doctrine that in the state of Nature res nullius became
property through Occupancy, with the inference which
they drew from the Scriptural history that the Patriarchs
did not at first permanently appropriate the soil which had
been grazed over by their flocks and herds. (Page 209-
210)
2826. Referring to 'Savigny', 'Sir Maine' observed:
It is not wonderful that property began in adverse
possession. It is not surprising that the first proprietor
should have been the strong man armed who kept his goods
in peace. But why it was that lapse of time created a
sentiment of respect for his possessionwhich is the exact
source of the universal reverence of mankind for that which
has for a long period de facto existedare questions really
deserving the profoundest examination, but lying far
beyond the boundary of our present inquiries. (Page 212)
Occupancy is the advised assumption of physical
possession; and the notion that an act of this description
confers a title to 'res nullius', so far from being
characteristic of very early societies, is in all probability
the growth of a refined jurisprudence and of a settled
condition of the laws. It is only when the rights of property
have gained a sanction from long practical inviolability,
and when the vast majority of the objects of enjoyment have
been subjected to private ownership, that mere possession
is allowed to invest the first possessor with dominion over
commodities in which no prior proprietorship has been
asserted. The sentiment in which this doctrine originated is
absolutely irreconcilable with that infrequency and
2714
uncertainty of proprietary rights which distinguish the
beginnings of civilisation. Its true basis seems to be, not an
instinctive bias towards the institution of Property, but a
presumption, arising out of the long continuance of that
institution, that everything ought to have an owner. When
possession is taken of a 'res nullius', that is, of an object
which is not, or has never been, reduced to dominion, the
possessor is permitted to become proprietor from a feeling
that all valuable things are naturally the subjects of an
exclusive enjoyment, and that in the given case there is no
one to invest with the right of property except the
Occupant. The Occupant in short, becomes the owner,
because all things are presumed to be somebody's property
and because no one can be pointed out as having a better
right than he to the proprietorship of this particular thing.
(Page 212-213)
2827. Referring to "laws of ownership" followed in India
by Hindus, 'Sir Maine' says:
The Roman jurisprudence will not here assist in
enlightening us, for it is exactly the Roman jurisprudence
which, transformed by the theory of Natural Law, has
bequeathed to the moderns the impression that individual
ownership is the normal state of proprietary right, and that
ownership in common by groups of men is only the
exception to a general rules. There is, however, one
community which will always be carefully examined by the
inquirer who is in quest of any lost institution of primeval
society. How far soever any such institution may have
undergone change among the branch of the Indo-European
family which has been settled for ages in India, it will
2715
seldom be found to have entirely cast aside the shell in
which it was originally reared. It happens that, among the
Hindoos, we do find a form of ownership which ought at
once to rivet our attention from its exactly fitting in with
the ideas which our studies in the Law of Persons would
lead us to entertain respecting the original condition of
property. The Village Community of India is at once an
organised patriarchal society and an assemblage of co-
proprietors. The personal relations to each other of the
men who compose it are indistinguishably confounded with
their proprietary rights, and to the attempts of English
functionaries to separate the two may be assigned some of
the most formidable miscarriages of Anglo-Indian
administration. The Village Community is known to be of
immense antiquity. In whatever direction research has
been pushed into Indian history, general or local, it has
always found the Community in existence at the farthest
point of its progress. A great number of intelligent and
observant writers, most of whom had no theory of any sort
to support concerning its nature and origin, agree in
considering it the least destructible institution of a society
which never willingly surrenders any one of its usages to
innovation. Conquests and revolutions seem to have swept
over it without disturbing or displacing it, and the most
beneficient systems of government in India have always
been those which have recognised it as the basis of
administration.
The mature Roman law, and modern jurisprudence
following in its wake, look upon co-ownership as an
exceptional and momentary condition of the rights of
2716
property. This view is clearly indicated in the maxim which
obtains universally in Western Europe, Nemo in
communione potest invitus detineri ('No one can be kept in
co-proprietorship against his will'). But in India this
order of ideas is reversed, and it may be said that
separate proprietorship is always on its way to become
proprietorship in common. The process has been adverted
to already. As soon as a son is born, he acquires a vested
interest in his father's substance, and on attaining years of
discretion he is even, in certain contingencies, permitted by
the letter of law to call for a partition of the family estate.
As a fact, however, a division rarely takes place even at the
death of the father, and the property constantly remains
undivided for several generations, though every member of
every generation has a legal right to an undivided share in
it. The domain thus held in common is sometimes
administered by an elected manager, but more generally,
and in some provinces always, it is managed by the eldest
agnate, by the eldest representative of the eldest line of the
stock. Such an assemblage of joint proprietors, a body of
kindred holding a domain in common, is the simplest form
of an Indian Village Community, but the Community is
more than a brotherhood of relatives and more than an
association of partners. It is an organised society, and
besides providing for the management of the common fund,
it seldom fails to provide, by a complete staff of
functionaries, for internal government, for police, for the
administration of justice, and for the apportionment of
taxes and public duties. (Page 215-217)
2828. Regarding village communities and their system of
2717
holding land, Sir Maine observed:
The process which I have described as that under
which a Village Community is formed, may be regarded as
typical. Yet it is not to be supposed that every Village
Community in India drew together in so simple a manner.
Although, in the North of India, the archives, as I am
informed, almost invariably show that the Community was
founded by a single assemblage of blood-relations, they
also supply information that men of alien extraction have
always, from time to time, been engrafted on it, and a mere
purchaser of a share may generally, under certain
conditions, be admitted to the brotherhood. In the South of
the Peninsula there are often Communities which appear to
have sprung not from one but from two or more families;
and there are some whose composition is known to be
entirely artificial; indeed, the occasional aggregation of
men of different castes in the same society is fatal to the
hypothesis of a common descent. Yet in all these
brotherhoods either the tradition is preserved, or the
assumption made, of an original common parentage.
Mountstuart Elphinstone, who writes more particularly of
the Southern Village Communities, observes of them
(History of India, i. 126): 'the popular notion is that the
Village landholders are all descended from one or more
individuals who settled the village, and that the only
exceptions are formed by persons who have derived their
rights by purchase or otherwise from members of the
original stock. The supposition is confirmed by the fact
that, to this day, there are only single families of
landholders in small villages and not many in large ones;
2718
but each has branched out into so many members that it is
not uncommon for the whole agricultural labour to be done
by the landholders, without the aid either of tenants or of
labourers. The rights of the landholders are theirs
collectively and, though they almost always have a more or
less perfect partition of them, they never have en entire
separation. A landholder, for instance, can sell or
mortgage his rights; but he must first have the consent of
the Village, and the purchaser steps exactly into his place
and takes up all his obligations. If a family becomes
extinct, its share returns to the common stock. (Page 217-
219)
2829. On page 223 he further says:
In India, not only is there no indivisibility of the
common fund, but separate proprietorship in parts of it
may be indefinitely prolonged and may branch out into any
number of derivative ownerships, the de facto partition of
the stock being, however, checked by inveterate usage, and
by the rule against the admission of strangers without
the consent of the brotherhood.
2830. The Hindu Dharam-shastras containing legal
principles are mainly in Smritis. Narada-smriti or Naradiya
Dharmasastra contains the laws with regard to 'property' or and
'possession' are stated as under:
43. All transactions depend on wealth. In order to
acquire it, exertion is necessary. To preserve it, to increase
it, and to enjoy it : these are, successively, the three sorts of
activity in regard to wealth.
44. Again, wealth is of three kinds : white, spotted, and
black. Each of these (three) kinds has seven subdivision.
2719
45. White wealth is (of the following seven sorts) : what
is acquired by sacred knowledge, valour in arms, the
practice of austerities, with a maiden, through (instructing)
a pupil, by sacrificing, and by inheritance. The gain to be
derived from exerting oneself to acquire it is of the same
description.
46. Spotted wealth is (of the following seven sorts) : what
is acquired by lending money at interest, tillage,
commerce, in the shape of Sulka, by artistic performances,
by servile attendance, or as a return for a benefit conferred
on some one.
47. Black wealth is (of the following seven sorts) : what
is acquired as a bribe, by gambling, by bearing a message,
through one afflicted with pain, by forgery, by robbery, or
by fraud.
48. It is in wealth that purchase, sale, gift, receipt,
transactions of every kind, and enjoyment, have their
source.
49. Of whatever description the property may be, with
which a man performs any transaction, of the same
description will the fruit be which he derives from it in the
next world and in this.
50. Wealth is again declared to be of twelve sorts,
according to the caste of the acquirer. Those modes of
acquisition, which are common to all castes, are threefold.
The others are said to be ninefold.
51. Property obtained by inheritance, gifts made from
love, and what has been obtained with a wife (as her
dowry), these are the three sorts of pure wealth, for all
(castes) without distinction.
2720
52. The pure wealth peculiar to a Brahman is declared to
be threefold : what has been obtained as alms, by
sacrificing, and through (instructing) a pupil.
53. The pure wealth peculiar to a Kshatriya is of three
sorts likewise : what has been obtained in the shape of
taxes, by fighting, and by means of the fines declared in
lawsuits.
54. The pure wealth peculiar to a Vaisya is also declared
to be threefold : (what has been acquired) by tillage, by
tending cows, and by commerce. . . . .
2831. Similarly, Brihaspati Smriti deals with 'possession'
as under:
2. Immovable property may be acquired in seven
different ways, viz. by learning, by purchase, by
mortgaging, by valour, with a wife (as her dowry), by
inheritance (from an ancestor), and by succession to the
property of a kinsman who has no issue.
3. In the case of property acquired by one of these
seven methods, viz. inheritance from a father (or other
ancestor), acquisition (in the shape of a dowry), purchase,
hypothecation, succession, valour, or learned knowledge,
possession coupled with a legitimate title constitutes
proprietary right.
4. That possession which is hereditary, or founded on a
royal order, or coupled with purchase, hypothecation or a
legitimate title : possession of this kind constitutes
proprietary right.
5. Immovable property obtained by a division (of the
estate among co-heirs), or by purchase, or inherited from a
father or other ancestor), or presented by the king, is
2721
acknowledged as one's lawful property ; it is lost by
forbearance in the case of adverse possession.
6. He who is holding possession (of an estate) after
having merely taken it, occupying it without meeting with
resistance, becomes its legitimate owner thus; and it is lost
(to the owner) by such forbearance.
7. He whose possession has been continuous from the
time of occupation, and has never been interrupted for a
period of thirty years, cannot be deprived of such property.
8. That property which is publicly given by co-heirs or
others to a stranger who is enjoying it, cannot be recovered
afterwards by him (who is its legitimate owner).
9. He who does not raise a protest when a stranger is
giving away (his) landed property in his sight, cannot
again recover that estate, even though he be possessed of a
written title to it.
10. Possession held by three generations produces
ownership for strangers, no doubt, when they are related to
one another in the degree of a Sapinda ; it does not stand
good in the case of Sakulyas.
11. A house, field, commodity or other property having
been held by another person than the owner, is not lost (to
the owner) by mere force of possession, if the possessor
stands to him in the relation of a friend, relative, or
kinsman.
12. Such wealth as is possessed by a son-in-law, a
learned Brahman, or by the king or his ministers, does not
become legitimate property for them after the lapse of a
very long period even.
13. Forcible means must not be resorted to by the
2722
present occupant or his son, in maintaining possession of
the property of an infant, or of a learned Brahman, or of
that which has been legitimately inherited from a father.
14. Nor (in maintaining possession) of cattle, a woman, a
slave, or other (property). This is a legal rule.
15. If a doubt should arise in regard to a house or field,
of which its occupant has not held possession
uninterruptedly, he should undertake to prove (his
enjoyment of it) by means of documents, (the depositions of
) persons knowing him as possessor, and witnesses.
16. Those are witnesses in a contest of this kind who
know the name, the boundary, the title (of acquisition), the
quantity, the time, the quarter of the sky, and the reason
why possession has been interrupted.
17. By such means should a question regarding
occupation and possession be decided in a contest
concerning landed property ; but in a cause in which no
(human) evidence is forthcoming, divine test should be
resorted to.
18. When a village, field, or garden is referred to in one
and the same grant, they are (considered to be) possessed
of all of them, though possession be held of part of them
only. (On the other hand) that title has no force which is
not accompanied by a slight measure of possession even.
19. Not to possess landed property, not to show a
document in the proper time, and not to remind witnesses
(of their deposition) : this is the way to lose one's property.
20. Therefore evidence should be preserved carefully; if
this be done, lawsuits whether relating to immovable or to
movable property are sure to succeed.
2723
21. Female slaves can never be acquired by possession,
without a written title; nor (does possession create
ownership) in the case of property belonging to a king,
or to a learned Brahman, or to an idiot, or infant.
22. It is not by mere force of possession that land
becomes a man's property ; a legitimate title also having
been proved, it is converted into property by both
(possession and title), but not otherwise.
23. Should even the father, grandfather, and great-
grandfather of a man be alive, land having been possessed
by him for thirty years, without intervention of strangers.
24. It should be considered as possession extending over
one generation ; possession continued for twice that period
(is called possession) extending over two generations ;
possession continued for three times that period (is called
possession) extending over three generations. (Possession
continued) longer than that even, is (called) possession of
long standing.
25. When the present occupant is impeached, a document
or witness is (considered as) decisive. When he is no longer
in existence, possession alone is decisive for his sons.
26. When possession extending over three generations
has descended to the fourth generation, it becomes
legitimate possession, and a title must never be inquired
for.
27. When possession undisturbed (by other) has been
held by three generations (in succession), it is not
necessary to produce a title ; possession is decisive in that
case.
28. In suits regarding immovable property, (possession)
2724
held by three generations in succession, should be
considered as valid, and makes evidence in the decision of
a cause.
29. He whose possession has passed through three lives,
and is duly substantiated by a written title, cannot be
deprived of it ; such possession is equal to the gift of the
Veda.
30. He whose possession has passed through three lives
and has been inherited from his ancestors, cannot be
deprived of it, unless a previous grant should be in
existence (in which the same property has been granted to
a different person by the king).
31. That possession is valid in law which is
uninterrupted and of long standing ; interrupted possession
even is (recognised as valid), if it has been substantiated by
an ancestor.
32. A witness prevails over inference ; a writing prevails
over witnesses ; undisturbed possession which has passed
through three lives prevails over both.
33. When an event (forming the subject of a plaint) has
occurred long ago, and no witnesses are forthcoming, he
should examine indirect witnesses, or he should administer
oaths, or should try artifice.
2832. Thus in brief, the concept of possession in ancient
laws may be stated that Possession in Roman law recognised
two degrees of possession, one is being detentio (or possessio
naturalise) of the object/thing; and the other is possessio strictly
or possessio civilise. Roman law appears to be mainly concern
with developing a theory to distinguish between detention and
possession from each other. Physical control of an object by
2725
sale, a bailee or an agent was considered only as detention and
all other kinds of physical control were treated as possession.
2833. In Muslim law a man in possession of property
although by wrongful means has obvious advantages over the
possessor. The possessor is entitled to protection against the
whole world except the true owner. [The Principles of
Mohammedan Jurisprudence (1911)].
2834. In 'Ancient Indian Law' possession was nothing but
a legal contrivance based on the considerations of dharma. Use
and enjoyment of property was restricted and controlled by the
holy scriptures. In old Hindu law possession was of two kinds.
(a) with title; and (b) without title where possession continued
for three generations. Enough importance, however, was given
to title (agama) to prove possession. Katyayana said, there can
be no branches without root, and possession is the branch.
2835. Possession, therefore, has two aspects. By itself it is
a limited title which is good against all except a true owner. It is
also prima facie evidence of ownership. In Hari Khandu Vs.
Dhondi Nanth, (1906) 8 Bom.L.R. 96, Sir Lawrence Jenkins,
C.J. observed that possession has two fold value, it is evidence
of ownership and is itself the foundation of a right to possession.
The possession, therefore, is not only a physical condition which
is protected by ownership but a right itself.
2836. In Supdt. & Remembrancer of Legal Affairs, West
Bengal Vs. Anil Kumar Bhunja & Ors. AIR 1980 SC 52 the
possession was described by the Court in paras 13, 14 and 15 as
under:
13. "Possession" is a polymorphous term which may have
different meanings in different contexts. It is impossible to
work out a completely logical and precise definition of
2726
"possession" uniformly applicable to all situations in the
contexts of all statutes. Dias & Hughes in their book on
Jurisprudence say that if a topic ever suffered from too
much theorizing it is that of "possession". Much of this
difficulty and confusion is (as pointed out in Salmond's
Jurisprudence, 12th Edition, 1966) caused by the fact that
possession is not purely a legal concept. "Possession",
implies a right and a fact; the right to enjoy annexed to
the right of property and the fact of the real intention. It
involves power of control and intent to control. (See Dias
and Hughes, ibid)
14. According to Pollock & Wright "when a person is in
such a relation to a thing that, so far as regards the thing,
he can assume, exercise or resume manual control of it at
pleasure, and so far as regards other persons, the thing is
under the protection of his personal presence, or in or on a
house or land occupied by him or in any receptacle
belonging to him and under his control, he is in physical
possession of the thing.
15. While recognising that "possession" is not a purely
legal concept but also a matter of fact; Salmond (12
th
Edition, page 52) describes "possession, in fact", as a
relationship between a person and a thing. According to
the learned author the test for determining "whether a
person is in possession of anything is whether he is in
general control of it".
2837. In this case we are concerned with the concept of
adverse possession. A person other than owner, if continued to
have possession of immoveable property for a period as
prescribed in a Statute providing limitation, openly, without any
2727
interruption and interference from the owner, though he has
knowledge of such possession, would crystallise in ownership
after the expiry of the prescribed period or limitation, if the real
owner has not taken any action for re-entry and he shall be
denuded of his title to the property in law. 'Permissible
possession' shall not mature a title since it cannot be treated to
be an 'adverse possession'. Such possession, for however length
of time be continued, shall not either to be converted into
adverse possession or a title. It is only the hostile possession
which is one of the condition for adverse possession.
2838. Ordinarily an owner of property is presumed to be in
possession and such presumption is in his favour where there is
nothing to be contrary. But where a plaintiff himself admits that
he has been dispossessed by the defendant and no longer in
proprietary possession of the property in suit at the time of
institution of the suit, the Court shall not start with the
presumption in his favour that the possession of the property
was with him. Mere adverse entry in revenue papers is not
relevant for proof of adverse possession. Possession is prima
facie evidence of title and has to be pleaded specifically with all
its necessary ingredients namely, hostile, open, actual and
continuous.
2839. In Gunga Gobind Mundul Vs. Collector of the 24-
pergunnahs 11 Moore's I.A., 345 it was observed by the Privy
Council that continuous possession for more than twelve years
not only bars the remedy, but practically extinguishes the title of
the true owner in favour of the possessor. This was followed by
a Division Bench of Calcutta High Court in Gossain Das
Chunder Vs. Issur Chunder Nath 1877 III ILR 3 (Cal.) 224.
2840. In Gossain Das Chunder (supra) the High Court
2728
held that 12 years continuous possession of land by wrong doer
not only bars the remedy to also extinguishes the title of the
rightful owner. It confers a good title upon the wrong doer.
2841. In Bhupendra Narayan Sinha (supra) the Privy
Council held where a person without any colour of right
wrongfully takes possession as a trespasser of a property of
another, any title which he may require by adverse possession
will be strictly limited to what he has actually so possessed.
That was an interesting case of dispute of ownership in respect
to subsoil. It was held that there can be separate ownership of
different strata of subsoil, at all events where minerals are
involved. If a grant of surface right was given by the owner and
the licensee is given possession to carry out the said right, by
quarrying stones etc. possession of subsoil in the eyes of law
remain with the owner though it is only a constructive
possession but in the absence of anything to show that with the
knowledge of the owner the licensee held possession of subsoil
and minerals therein and continued with that possession for
statutory period of limitation to continue its ownership such plea
of adverse possession in respect to subsoil cannot be accepted.
2842. In Basant Kumar Roy Vs. Secretary of State for
India & others AIR 1917 PC 18, it was held:
An exclusive adverse possession for a sufficient
period may be made out, in spite of occasional acts done by
the former owner on the ground for a specific purpose from
time to time. Conversely; acts which prima facie are acts of
dispossession may under particular circumstances fall
short of evidencing any kind of ouster. They may be
susceptible of another explanation, bear some other
characters or have some other object. ... If, as their
2729
Lordships think, no dispossession occurred, except possibly
within twelve years before the commencement of this suit,
article 144 is the article applicable, and not article 142.
2843. In Board Nageshwar Bux Roy Vs. Bengal Coal Co.
AIR 1931 PC 18 the observation in respect to adverse
possession similar to what has been noted above were made and
the said judgement was followed in Bhupendra Narayan Sinha
(supra).
2844. The law in respect to adverse possession, therefore,
is now well settled. It should be nec vi nec clam nec precario.
(Secretary of State for India Vs. Debendra Lal Khan, AIR
1934 PC 23, page 25). This decision has been referred and
followed by the Apex Court in P. Lakshmi Reddy (supra) (para
4). The Court further says that the possession required must be
adequate in continuity, in publicity and in extent to show that it
is possession adverse to the competitor. [Radhamoni Debi Vs.
Collector of Khulna, 27 Ind App. 136 at p. 140 (PC)]. The case
before the Apex Court in P. Lakshmi Reddy (supra) was that
of co-heirs where the plea of adverse possession was set up. In
this regard it was held:
But it is well settled in order, to establish adverse
possession of one-co-heir as against another it is not
enough to show that one out of them is in sole possession
and enjoyment of the profits, of the properties. Ouster of
the non-possessing co-heir by the co-heir in possession
who claims his possession to be adverse, should be made
out. The possession of one co-heir is considered, in law, as
possession of all the co-heirs. When one co-heir is found to
be in possession of the properties it is presumed to be on
the basis of the joint title. The co-heir in possession cannot
2730
render his possession adverse to the other co-heir, not in
possession, merely by any secret hostile animus of his own
part in derogation of the other co-heir title. It is settled rule
of law that as between co-heirs there must be evidence of
open assertion of hostile title, coupled with exclusive
possession and enjoyment by one of them to the knowledge
of the other so as to constitute ouster.
2845. In Thakur Kishan Singh Vs. Arvind Kumar, AIR
1995 SC 73 the Court said:
A possession of a co-owner or of a licensee or of an
agent or a permissive possession to become adverse must
be established by cogent and convincing evidence to show
hostile animus and possession adverse to the knowledge of
real owner. Mere possession for howsoever length of time
does not result in converting the permissive possession into
adverse possession.
2846. In Sheo Raj Chamar & another Vs. Mudeer Khan
& others AIR 1934 All. 868, it was held:
""If, indeed it did, the defendants have acquired a right by
sheer adverse possession held and maintained for more
than 12 years. The adverse possession to be effective need
not be for the full proprietary right."
2847. In Saroop Singh Vs. Banto and others, 2005(8)
SCC 330 the Court held in para 30:
30. Animus possidendi is one of the ingredients of
adverse possession. Unless the person possessing the land
has a requisite animus the period for prescription does not
commence. . . . .
2848. In T. Anjanappa (supra) the pre-conditions for
taking plea of adverse possession has been summarised as
2731
under:
It is well-recognised proposition in law that mere
possession however long does not necessarily mean that it
is adverse to the true owner. Adverse possession really
means the hostile possession which is expressly or
impliedly in denial of title of the true owner and in order to
constitute adverse possession the possession proved must
be adequate in continuity, in publicity and in extent to as to
show that it is adverse to the true owner. The classical
requirements of acquisition of title by adverese possession
are that such possession in denial of the true owner's title
must be peaceful, open and continuous. The possession
must be open and hostile enough to be capable of being
known by the parties interested in the property, though it is
not necessary that there should be evidence of the adverse
possessor actually informing the real owner of the former's
hostile action.
2849. In P.T. Munichikkanna Reddy (supra) it was held:
"It is important to appreciate the question of intention as it
would have appeared to the paper-owner. The issue is that
intention of the adverse user gets communicated to the
paper-owner of the property. This is where the law gives
importance to hostility and openness as pertinent qualities
of manner of possession. It follows that the possession of
the adverse possessor must be hostile enough to give rise to
a reasonable notice and opportunity to the paper-owner."
2850. In the above case the Apex Court discussed the law
in detail and observed:
"Adverse possession in one sense is based on the
theory or presumption that the owner has abandoned the
2732
property to the adverse possessor on the acquiescence of
the owner to the hostile acts and claims of the person in
possession. It follows that sound qualities of a typical
adverse possession lie in it being open, continuous and
hostile." (Para 5)
"Efficacy of adverse possession law in most
jurisdictions depend on strong limitation statutes by
operation of which right to access the court expires
through effluxion of time. As against rights of the paper-
owner, in the context of adverse possession, there evolves a
set of competing rights in favour of the adverse possessor
who has, for a long period of time, cared for the land,
developed it, as against the owner of the property who has
ignored the property. Modern statutes of limitation
operate, as a rule, not only to cut off one's right to bring an
action for the recovery of property that has been in the
adverse possession of another for a specified time, but also
to vest the possessor with title. The intention of such
statutes is not to punish one who neglects to assert rights,
but to protect those who have maintained the possession of
property for the time specified by the statute under claim of
right or colour of title."(Para 6)
"Therefore, to assess a claim of adverse possession,
two pronged enquiry is required:
1. Application of limitation provision thereby
jurisprudentially "willful neglect" element on part of the
owner established. Successful application in this regard
distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the
adverse possessor effectively shifts the title already
2733
distanced from the paper owner, to the adverse possessor.
Right thereby accrues in favour of adverse possessor as
intent to dispossess is an express statement of urgency and
intention in the upkeep of the property" (Para 9)
2851. In para 12 of the judgment, referring to its earlier
decision in T.Anjanappa (supra), the Court held that if the
defendants are not sure who is the true owner, the question of
their being in hostile possession and the question of denying
title of the true owner do not arise. It also referred on this aspect
its earlier decision in Des Raj and others vs. Bhagat
Ram(Dead) by LRs. And others 2007(3) SCALE 371 and
Govindammal v. R. Perumal Chettiar and others JT 2006(1)
SC 121.
2852. In Annakili Vs. A. Vedanayagam and others, AIR
2008 SC 346 the Court pointed out that a claim of adverse
possession has two elements (i) the possession of the defendant
who become adverse to the plaintiff; and (ii) the defendant must
continue to remain in possession for a period of 12 years
thereafter. Animus possidendi is held to be a requisite ingredient
of adverse possession well known in law. The Court held:
It is now a well settled principle of law that mere
possession of the land would not ripen into possessor title
for the said purpose. Possessor must have animus
possidendi and hold the land adverse to the title of the true
owner. For the said purpose, not only animus possidendi
must be shown to exist, but the same must be shown to exist
at the commencement of the possession. He must continue
in said capacity for the period prescribed under the
Limitation Act. Mere long possession, it is trite, for a
period of more than 12 years without anything more do not
2734
ripen into a title.
2853. In Vishwanath Bapurao Sabale Vs. Shalinibai
Nagappa Sabale and others, JT 2009(5) SC 395 the Court said:
. . . . for claiming title by adverse possession, it was
necessary for the plaintiff to plead and prove animus
possidendi.
A peaceful, open and continuous possession being the
ingredients of the principle of adverse possession as
contained in the maxim nec vi, nec clam, nec precario, long
possession by itself would not be sufficient to prove adverse
possession.
2854. The title of property can vests in idols also by
adverse possession as held in Ananda Chandra Chakrabarti
vs. Broja Lal Singha and others 1923 Calcutta 142 wherein
reliance was also placed on Balwant vs. Puran (1883) 10 I.A.
90; Ramprakash vs. Ananda Das 43 Cal.707; Vidya vs.
Balusami (1921) 48 IA 302; Khaw Sim vs. Chuah Hooi (1922)
49 I.A.37; Damodar Das Vs. Lakhandas 37 I.A. 147=1910 (37)
ILR (Cal.) 885.
2855. In Dasami Sahu Vs. Param Shameshwar Uma
Bhairabeshwar Bam Lingshar and Chitranjan Mukerji
(1929) A.L.J.R. 473, Hon'ble Sulaiman, J. of this Court held
that there can be adverse possession, not only as against the
idols but over the idols themselves. That adverse possession can
be acquired against idols in respect of property dedicated in
their favour and for the said purpose, reliance was placed on
Maharaja Jagadindra Nath Roy Bahadur V. Rani Hemanta
Kumari Debi (1904) 1 A.L.J.R.585; Rao Bahadur Man Singh
Vs. Maharani Nawlakhbati (1926) 24 A.L.J.R. 251 and
Damodar Das Vs. Lakhan Das (Supra). It further held:
2735
In our opinion the same principle applies whether the
adverse possession is exercised by a total stranger or by
the donor himself. So long as such decision is exercised to
the ouster and knowledge of Chittaranjan's mother, who
alone can hold the property on behalf of the idols, it would
mature into title after the lapse of the prescribed period.
2856. On the question of whether the claim of adverse
possession may succeed against the idol and over the idol, we
have already discussed the matter while considering issues
relating to limitation. The judgements of Privy Council in
Maharaja Jagadindra Nath Roy Bahadur (supra) and
Damodar Das Vs. Lakhan Das (supra) have also been
considered and explained thereat. They were also explained by
the Privy Council in Mahanth Ram Charan Das. Vs. Naurangi
Lal (supra) where the Privy Council set aside the judgment of
Patna High Court which had followed the said two judgments.
2857. In certain circumstances, it may not be doubted that
a deity may acquire property by adverse possession and that the
property of a deity may also be lost by adverse possession.
Those circumstances where it may happen are quite restricted
and we need not to go in depth on this aspect in this judgment.
However, suggestion that an idol /deity can itself be acquired by
adverse possession, with great respect cannot be accepted for
the reason that if an idol truly consecrated is a legal person, the
question of application of the doctrine of adverse possession
would wholly be inapplicable since it applies to a property and
not a person. The person's property may be subject matter of
possession but the person itself cannot be.
2858. In Secretary of State Vs. Debendra Lal Khan
(supra) it was held that the period of possession of a series of
2736
independent trespassers cannot be added together and utilized
by the last possessor to make up the statutory total period of
adverse possession. This was followed in Wahid Ali & another
Vs. Mahboob Ali Khan AIR 1935 Oudh 425.
2859. Applying the principle of adverse possession on a
waqf property of Oudh, a Single Judge in Ramzan & Anr. Vs.
Mohammad Ahmad Khan AIR 1936 Oudh 207 held:
If a takiadar in possession of a graveyard sells a portion
of it to some other person who builds a house, and if the
Mohammadan community are apathetic in the matter and
allow the encroachment to remain for more than 12 years,
then it might will be held that the person in possession had
perfected his title by adverse possession for more than 12
years over the portion of the graveyard sold to him. In my
opinion it could not be further held that the takiadar by
asserting a right of adverse possession in respect of one
portion of the graveyard has thereby perfected his title by
adverse possession in respect of the whole graveyard.
2860. However, the Court further held that the possession
of a takiadar started as a permissive possession and the mere
building of kothris on the land by the takiadar would not imply
renunciation of the takiadar's permissive possession or the open
and public assertion of a hostile title and therefore decline any
relief on the ground of alleged adverse possession.
2861. In Mosque known as Masjid Shahid Ganj and
others (supra) the very question cropped up for consideration is
as to whether the principle of adverse possession can be applied
to a mosque or not. It is necessary to have facts in brief which
led to the said dispute. There stood a structure having three
domes and five arches at Naulakha Bazar, Lahore constructed as
2737
a mosque having projecting niche (mehrab) in the centre of the
west wall and claimed to have been established in the year 1134
A.H. (1722 A.D.) by one Falak Beg Khan. Sikhs claimed that
the mosque having been built by demolishing a Gurdwara, they
took possession and occupation of the said building alongwith
courtyard, well and adjacent land sometime about 1762 A.D.
when the Sikh power grown in that part of India. After taking
possession at some point of time and during the Sikh
domination, the land adjacent to the mosque building (but the
north of Naulakha Bazar) became the site of a Sikh shrine
(gurdwara)and the tomb of a Sikh leader named Bhai Taru
Singh situated thereon. Sikh rule after 1762 continued and
expanded under Maharaja Ranjit Singh who in 1799 A.D.
established him as the Ruler of Punjab. After his death and ten
years thereafter in 1849 the area of Punjab became part of
British India by annexation when the Sikhs lost what is called
by the Britishers as "second Sikh War". A part of the building in
the meantime was also used for the worship of Guru Granth
Sahib or the holy book of Sikhs and the other parts were being
used for secular purposes. The reason of occupation and
possession taken by Sikhs as explained by them, mentioned in
the trial court's order was that the land adjacent to the building
was a place of martyrs on which spot Bhai Taru Singh and
other Sikhs suffered for religious reasons at the hands of the
then Muslim rulers and a lot of women and children had been
executed thereat. It came to be established that after the Sikhs
having taken possession and control of the above property did
not allow the Muslims to have access to the building for any
purpose whatsoever upto 1853. For the first time in 1850 a
criminal case was brought by one Nur Ahmad claiming himself
2738
to be Mutawalli. He also brought proceedings before the
Settlement Department in 1853. As he was out of possession
since long, nothing helped him. Hence, a civil suit was filed on
25
th
June 1855 in the Court of Deputy Commissioner, Lahore
against Sikhs in possession of the property. The suit was
dismissed on 14
th
November 1955 by that officer and further on
9
th
April 1856, by the Commissioner. The appeal was also
dismissed by the Judicial Commissioner on 17
th
June 1856. In
1925 the Sikh Gurdwaras Act (Punjab Act 8 of 1925) was
enacted pursuant whereto a Government notification was issued
on 22
nd
December 1927 including the old mosque building and
the land adjacent thereto belonging to Sikh Gurdwara named
"Shahid Ganj Bhai Taru Singh". Several claims were filed
claiming rights and one of that was by Anjuman Islamia of
Punjab on behalf of Muslims filed on 16
th
March 1928 claiming
that the land and property were dedicated for a mosque and did
not belong to the Gurdwara. The claim of Anjuman Islamia
failed before the Sikh Gurdwaras Tribunal on 20
th
January 1930
on the ground of adverse possession and the previous decision
operating as res judicata. In 1935 the building was demolished
causing much resentment amongst the Muslims. A civil suit was
filed on 30
th
October 1935 in the Court of District Judge, Lahore
against the Shiromani Gurdwara Prabandhak Committee and the
Committee of Management for the Notified Sikh Gurdwaras at
Lahore, who were in possession of the disputed property. The
relief claimed therein was a declaration that the building was a
mosque in which the plaintiffs and all followers of Islam had
right to worship and an injunction restraining from any
improper use of the building and any interference with the
plaintiffs' right of worship. A mandatory injunction was also
2739
sought to reconstruct the building. The suit was dismissed on
25.5.1936 and the first appeal was dismissed by a Full Bench of
Lahore High Court on 26
th
January 1938. The judgment of the
Full Bench is reported in AIR 1938 Lah. 369 (FB). The
majority decision of the High Court held that the suit in question
was governed by Limitation Act 1908 and the defendants
having completed their possession maturing in the right of
ownership, the plaintiffs have lost it on the principle of adverse
possession and the defence of the plaintiff appellant that the
principle of adverse possession does not apply to Muslim
religious place, i.e., mosque, was rejected. The Privy Council
upheld the decision of the High Court. Before the Privy Council
the relief was confined to the actual site of the mosque building.
The first question which was considered by the Privy Council
was who possessed the title when the sovereignty of that part of
the territory passed on to the British Government in 1849. In
this context the Privy Council observed:
"It may have been open to the British on the ground of
conquest or otherwise to annul rights of private property
at the time of annexation as indeed they did in Oudh
after 1857. But nothing of the sort was done so far as
regards the property now in dispute. There is nothing in the
Punjab Laws Act or in any other Act authorizing the British
Indian Courts to uproot titles acquired prior to the
annexation by applying to them a law which did not then
obtain as the law of the land. There is every presumption in
favour of the proposition that a change of sovereignty
would not affect private rights to property."
2862. For the above proposition the Privy Council placed
reliance on West Rand Gold mining Co. Vs. The King (1905) 2
2740
KB 391. The Privy Council also observed that before
considering the claim of the plaintiffs regarding application of
Muslim Law in respect of limitation and adverse possession to
the above property certain important questions need to be
considered which are:
(a) Who then immediately prior to the British
annexation was the local sovereign of Lahore ?
(b) What law was applicable in that State to the present
case ?
(c) Who was recognized by the local sovereign or other
authority as owner of the property now in dispute ?
2863. It was held that before calling upon the courts to
apply Mahomedan Law to events taking place between 1762
and 1849 first it was necessary to establish that this was the law
of the land at that time recognized and enforced as such. The
Privy Council observed in this regard:
"If it be assumed, for example, that the property in
dispute was by general law or by special decree or by
revenue-free (muafi) grant vested in the Sikh gurdwara
according to the law prevailing under the Sikh rulers, the
case made by the plaintiffs becomes irrelevant. It is not
necessary to say whether it has been shown that Ranjit
Singh took great interest in the gurdwara and continued
endowments made to it by the Bhanji Sardars as was held
by Hilton J. (20
th
January 1930) presiding over the Sikh
Gurdwaras Tribunal. Nor is it necessary that it should now
be decided whether the Sikh mahants held this property for
the Sikh Gurdwara under a muafi grant from the Sikh
rulers. It was for the plaintiffs to establish the true position
as at the date of annexation. Since the Sikh mahants had
2741
held possession for a very long time under the Sikh State
there is a heavy burden on the plaintiffs to displace the
presumption that the mahants' possession was in
accordance with the law of the time and place. There is an
obvious lack of reality in any statement of the legal position
which would arise assuming that from 1760 down to 1935
the ownership of this property was governed by the
Mahomedan law as modified by the Limitation Act, 1908."
2864. Then considering the question of application of
Limitation Act, the Privy Council held that the rules of
limitation which apply to a suit are the rules enforced at the time
of institution of the suit, the limitation being a matter of
procedure. Since the suit was filed in 1935 when Limitation Act
1908 was in force, hence that would obviously apply to the suit
in question. It held:
"But the Limitation Act is not dealing with the competence
of alienations at Mahomedan law. It provides a rule of
procedure whereby British Indian Courts do not enforce
rights after a certain time, with the result that certain
rights come to an end. It is impossible to read into the
modern Limitation Acts any exception for property made
wakf for the purposes of a mosque whether the purpose be
merely to provide money for the upkeep and conduct of a
mosque or to provide a site and building for the purpose.
While their Lordships have every sympathy with a religious
sentiment which would ascribe sanctity and inviolability to
a place of worship, they cannot under the Limitation Act
accept the contentions that such a building cannot be
possessed adversely to the wakf, or that it is not so
possessed so long as it is referred to as "mosque" or
2742
unless the building is razed to the ground or loses the
appearance which reveals its original purpose."
2865. The attempt on the part of the plaintiffs to
demonstrate that the land and building of a mosque are not mere
property but a juristic person was not accepted by the Privy
Council and to that extent, the otherwise view taken by Lahore
High Court was also reversed by observing :
"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. Such suits had
previously been entertained by Indian Courts in the case of
this very building. The learned District Judge in the course
of his able and careful judgment noted that the defendants
were not pressing any objection to the constitution of the
suit on the ground that the mosque could not sue by a next
friend. He went on to say:
It is proved beyond doubt that mosques can
and do hold property. There is ample authority for
the proposition that a Hindu idol is a juristic person
and it seems proper to hold that on the same
principle a mosque as an institution should be
considered as a juristic person. It was actually so
held in 59 P R 1914, p. 200 (Jindu Ram v. Hussain
Bakhsh, (1914) 1 AIR Lah 444) and later in Maula
Bux v. Hafizuddin, (1926) 13 AIR Lah 372.
That there should be any supposed analogy
2743
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 recognize 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, (1885) 7 All
822 at pp 841.2, per Mahmood J.) any more than they
apply the Mahomedan criminal law or 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 recognizes 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 shebait: 31 IA 203 (Jagadindranath v. Hemanta
Kumari (1905) 32 Cal 129)
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. 37 Cal 128 at p
153 (Bhupati Nath V. Ram Lal (1910) 37 Cal.128), Golap
Chandra Sarkar Sastri's Hindu Law, Edn. 7, 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: 37 I A 147 (Damodar Das
V. Lakhan Das (1910) 37 Cal 885); 64 IA 203 (Iswari
2744
Bhubaneshwari Thakurni V. Brojo Nath Dey (1937) 24 AIR
PC 185). From these considerations special to Hindu law
no general licence can be derived for the invention of
fictitious persons. It is as true in law as in other spheres
"entia non sunt multiplicanda praeter necessitatem." The
decisions recognizing a mosque as a "juristic person"
appear to be confined to the Punjab:153 P R 1884
(Shankar Das Vs. Said Ahmad (1884) 153 PR 1884) ; 59 P
R 1914 (Jindu Ram v. Hussain Bakhsh, (1914) 1 AIR Lah
444), Maula Bux v. Hafizuddin, (1926) 13 AIR Lah 372. In
none of these 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 institutionapparently
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.
It is not necessary in the present case to decide
whether in any circumstances or for any purpose a
Muslim institution can be regarded in law as a "juristic
person." The recognition of an artificial person is not to be
justified merely as a ready means of making enactments-
well or ill-expressed -work conveniently. It does not seem
to be required merely to give an extended meaning to the
word "person" as it appears in the Punjab Preemption Act,
1905, or in the definition of 'gift' contained in S. 122, T.P.
Act. It is far from clear that it is required in order that
property may be devoted effectively to charitable purposes
2745
without the appointment of a trustee in the sense of the
English law. It would seem more reasonable to uphold a
gift, if made directly to a mosque and not by way of wakf as
having been made to the mutwalli than to do so by
inventing an artificial person in addition to the mutwalli
(and to God in whom the ownership of the mosque is
placed by the theory of the law).
There Lordships do not understand that in this
respect a mosque is thought to be in any unique position
according to the authorities on Mahomedan law. "A gift
may be made to a mosque or other institution" (Tyabji's
Principles of Mahomedan Law, Edn.2, 1919, page 401, cf.
Abdur Rahim's Muhammadan Jurisprudence, page 218). A
gift can be made to a madrasah in like manner as to a
masjid. The right of suit by the mutwali or other manager
or by any person entitled to a benefit (whether individually
or as a member of the public or merely in common with
certain other persons) seems hitherto to have been found
sufficient for the purpose of maintaining Mahomedan
endowments. At best the institution is but a caput mortuum,
and some human agency is always required to take
delivery of property and to apply it to the intended
purposes. Their Lordships, with all respect to the High
Court of Lahore, must not be taken as deciding that a
"juristic personality" may be extended for any purpose
to Muslim institutions generally or to masques in
particular. On this general question they reserve their
opinion; but they think it right to decide the specific
question which arises in the present case and hold that
suits cannot competently be brought by or against such
2746
institutions as artificial persons in the British Indian
Courts.
2866. The nature of the right of an individual to offer
prayer in the disputed building treating it to be religious one was
also considered in reference to the application of the provisions
of Limitation Act, i.e., Article 144 and the Privy Council said:
"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, Limitation Act, and the
title derived under the dedication from the settlor or wakif
became extinct under S. 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." The
main contention on the part of the appellants is that the
right of any Moslem to use a mosque for purposes of
devotion is an individual right like the right to use a
private road, 7 All 178 (Jawahra v. Akbar Hussain, (1884)
7 All.178) that the infant plaintiffs, though born a hundred
years after the building had been possessed by Sikhs, had a
right to resort to it for purposes of prayer; that they were
not really obstructed in the exercise of their rights till 1935
when the building was demolished; and that in any case in
view of their infancy the Limitation Act does not prevent
their suing to enforce their individual right to go upon the
property. This argument must be rejected. The right of a
Muslim worshipper may be regarded as an individual
right, but what is the nature of the right? It is not a sort
of easement in gross, but an element in the general right
2747
of a beneficiary to have the waqf property recovered by
its proper custodians and applied to its proper purpose.
Such an individual may, if he sues in time, procure the
ejectment of a trespasser and have the property delivered
into the possession of the mutawali or of some other
person for the purposes of the waqf. As a beneficiary of
the religious endowment such a plaintiff can enforce its
conditions and obtain the benefits thereunder to which
he may be entitled. But the title conferred by the settlor
has come to an end by reason that for the statutory period
no one has sued to eject a person possessing adversely to
the waqf and every interest thereunder the rights of all
beneficiaries have gone: the land cannot be recovered by
or for the mutwali and the terms of the endowment can no
longer be enforced: cf. 41 Mad 124 at p. 135
(Chidambranatha Thambiran v. Nallasiva Mudaliar (1918)
5 AIR Madras 464). The individual character of the right
to go to a mosqe for worship matters nothing when the
land is no longer waqf and is no ground for holding that
a person born long after the property has become
irrecoverable can enforce partly or wholly the ancient
dedication."
2867. It also held that rights of worshipers stand or fall
with the wakf character of the property and do not continue
apart from their right to have the property recovered for the
wakf and applied to its purpose. As the law stands, notice of the
rights of individual beneficiaries does not modify the effect
under the Limitation Act of possession adverse to the wakf.
2868. Gnanasambanda Pandara Sannadhi Vs. Velu
Pandaram and another (1899) 27 IA 69 is a decision by the
2748
Judicial Committee, pertains to application of Article 144 of Act
XV of 1877 (Limitation). It held that "there is no distinction
between the office and the property of endowment. The one is
attached to the other; but if there is, Art.144 of the same
schedule is applicable to the property. That bars the suit after
twelve years' adverse possession."
2869. We may also notice at this stage that the Privy
Council also deprecated the practice adopted by the trial court
therein permitting the parties to produce religious experts and
obtain their opinion when the matter was to be seen in the light
of codified law. The Privy Council also observed that system of
expert adviser has gone long back and ought not to have been
continued in that case. It would be appropriate at this stage to
refer the above observations:
"A third feature of the suit has reference to the
method of trial, the learned District Judge having been
persuaded that the mode by which a British Indian Court
ascertains the Mahomedan law is by taking evidence. The
authority of Sulaiman J. to the contrary, 47 All 823 at
p.835 (Aziz Banu Vs. Muhammad Ibrahim Hussain (1925)
12 AIR All.720), was cited to him but he wrongly
considered that S. 49, Evidence Act, was applicable to the
ascertainment of the law. He seems also to have relied on
the old practice of obtaining the opinions of pandits on
questions of Hindu law and the reference made thereto in
12 MIA 397 at pp. 436-9 (Collector of Madura v. Moottoo
Ramalinga Sathupathy (1868) 12 MIA 397). No great
harm, as it happened, was done by the admission of this
class of evidence as the witnesses made reference to
authoritative texts in a short and sensible manner.
2749
But it would not be tolerable that a Hindu or a
Muslim in a British Indian Court should be put to the
expense of proving by expert witnesses the legal principles
applicable to his case and it would introduce great
confusion into the practice of the courts if decisions upon
Hindu or Muslim law were to depend on the evidence given
in a particular case, the credibility of the expert witnesses
and so forth. The Muslim law is not the common law of
India; British India has no common law in the sense of
law applicable prima facie to everyone unless it be in the
statutory Codes, e.g. Contract Act, transfer of Property
Act. But the Muslim law is under legislative enactments
applied by British Indian Courts to certain classes of
matters and to certain classes of people as part of the law
of the land which the Courts administer as being within
their own knowledge and competence. The system of
"expert advisers" (muftis, maulavis or in the case of
Hindu law pandits) had its day but has long been
abandoned, though the opinion given by such advisers
may still be cited from the reports. Custom, in variance of
the general law, is matter of evidence but not the law itself.
Their Lordships desire to adopt the observations of
Sulaiman J. in the case referred to:
It is the duty of the Courts themselves to interpret the
law of the land and to apply it and not to depend on the
opinion of witnesses however learned they may be. It
would be dangerous to delegate their duty to witnesses
produced by either party. Foreign law, on the other hand,
is a question of fact with which Courts in British India are
not supposed to be conversant. Opinion of experts on
2750
foreign law are therefore allowed to be admitted."
2870. This stage that this decision of the Privy Council has
been followed by the Constitution Bench of the Apex Court in
Dr. M. Ismail Faruqui (supra) involving the property in
dispute before us to discard the contention on behalf of the
parties (pro mosque) that a property of a waqf or mosque cannot
be a subject matter of compulsory acquisition under the
provisions of Land Acquisition Act, 1894 since a Muslim
religious property cannot be compulsorily acquired.
2871. In (Sm.) Bibhabati Devi (supra) it was observed
that in order to claim a right of ownership applying the principle
of adverse possession it is a condition precedent that the
possession must be adverse to a living person. Herein the
appellant was possessing the property under a mosque after the
death of the defendant, it was held that the possession cannot be
said to be adverse.
2872. In Chhote Khan & others Vs. Mal Khan & others
AIR 1954 SC 575, the Court observed that no question of
adverse possession arises where the possession is held under an
arrangement between the co-sharers.
2873. The Court in P. Lakshmi Reddy (supra) quoted
with approval Mitra's Tagore Law Lectures on Limitation and
Prescription (6th Edition) Vol. I, Lecture VI, at page 159,
quoting from Angell on Limitation:
An adverse holding is an actual and exclusive
appropriation of land commenced and continued under a
claim of right, either under an openly avowed claim, or
under a constructive claim (arising from the acts and
circumstances attending the appropriation), to hold the
land against him (sic) who was in possession. (Angell,
1
2751
sections 390 and 398). It is the intention to claim adversely
accompanied by such an invasion of the rights of the
opposite party as gives him a cause of action which
constitutes adverse possession.
2874. It further held:
Consonant with this principle the commencement of
adverse possession, in favour of a person, implies that that
person is in actual possession, at the time, with a notorious
hostile claim of exclusive title, to repel which, the true
owner would then be in a position to maintain an action. It
would follow that whatever may be the animus or intention
of a person wanting to acquire title by adverse possession
his adverse possession cannot commence until site
animus.
2875. In Karbalai Begum Vs. Mohd. Sayeed (1980) 4
SCC 396 in the context of a co-sharer, it was held:
"...It is well settled that mere non- participation in the rent
and profits of the land of a co-sharer does not amount to an
ouster so as to give title by adverse possession to the other
co-sharer in possession."
2876. In Annasaheb Bapusaheb Patil Vs. Balwant (1995)
2 SCC 543 the Court, in para 15, said:
"15. Where possession can be referred to a lawful title, it
will not be considered to be adverse. The reason being that
a person whose possession can be referred to a lawful title
will not be permitted to show that his possession was
hostile to another's title. One who holds possession on
behalf of another, does not by mere denial of that other's
title make his possession adverse so as to give himself the
benefit of the statute of limitation. Therefore, a person who
2752
enters into possession having a lawful title, cannot divest
another of that title by pretending that he had no title at
all."
2877. In Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496
the Court in paras 27 and 28 held:
"27...it will be seen that in order that the possession of co-
owner may be adverse to others, it is necessary that there
should be ouster or something equivalent to it. This was
also the observation of the Supreme Court in P. Lakshmi
Reddy case which has since been followed in Mohd.
Zainulabudeen v. Sayed Ahmed Mohideen.
28. 'Ouster' does not mean actual driving out of the co-
sharer from the property. It will, however, not be complete
unless it is coupled with all other ingredients required to
constitute adverse possession. Broadly speaking, three
elements are necessary for establishing the plea of ouster
in the case of co-owner. They are (i) declaration of hostile
animus, (ii) long and uninterrupted possession of the
person pleading ouster, and (iii) exercise of right of
exclusive ownership openly and to the knowledge of other
co-owner. Thus, a co-owner, can under law, claim title by
adverse possession against another co-owner who can, of
course, file appropriate suit including suit for joint
possession within time prescribed by law."
2878. In making above observations, the Court also relied
on its earlier decisions in P. Lakshmi Reddy (supra) and
Mohd. Zainulabudeen Vs. Sayed Ahmad Mohideen (1990) 1
SCC 345.
2879. In Roop Singh Vs. Ram Singh (2000) 3 SCC 708 it
was held that if the defendant got the possession of suit land as a
2753
lessee or under a batai agreement then from the permissive
possession it is for him to establish by cogent and convincing
evidence to show hostile animus and possession adverse to the
knowledge of the real owner. Mere possession for a long time
does not result in converting permissive possession into adverse
possession. The Court relied on its earlier decisions in Thakur
Kishan Singh (supra).
2880. In Darshan Singh Vs. Gujjar Singh (2002) 2 SCC
62 in para 7 and 9, the Court held:
"...It is well settled that if a co-sharer is in possession of the
entire property, his possession cannot be deemed to be
adverse for other co-sharers unless there has been an
ouster of other co-sharers."
"9. In our view, the correct legal position is that
possession of a property belonging to several co-sharers by
one co-sharer shall be deemed that he possesses the
property on behalf of the other co-sharers unless there has
been a clear ouster by denying the title of other co-sharers
and mutation in the revenue records in the name of one co-
sharer would not amount to ouster unless there is a clear
declaration that title of the other co-sharers was denied."
2881. In order to defeat title of a plaintiff on the ground of
adverse possession it is obligatory on the part of the respondent
to specifically plead and prove as to since when their possession
came adverse. If it was permissive or obtained pursuant to some
sort of arrangement, the plea of adverse possession would fail.
In Md. Mohammad Ali Vs. Jagadish Kalita & Ors. (2004) 1
SCC 271 with reference to a case dealing with such an issue
amongst co-sharers it was observed that Long and continuous
possession by itself, it is trite, would not constitute adverse
2754
possession. Even non-participation in the rent and profits of the
land to a co-sharer does not amount to ouster so as to give title
by prescription.
2882. It was also observed in para 21 that for the purpose
of proving adverse possession/ouster, the defendant must also
prove animus possidendi.
2883. In Amrendra Pratap Singh (supra) considering as
to what is adverse possession, the Court in para 22 observed :
What is adverse possession? Every possession is
not, in law, adverse possession. Under Article 65 of the
Limitation Act, 1963, a suit for possession of immovable
property or any interest therein based on title can be
instituted within a period of 12 years calculated from the
date when the possession of the defendant becomes adverse
to the plaintiff. By virtue of Section 27 of the Limitation
Act, at the determination of the period limited by the Act to
any person for instituting a suit for possession of any
property, his right to such property stands extinguished.
The process of acquisition of title by adverse possession
springs into action essentially by default or inaction of the
owner. A person, though having no right to enter into
possession of the property of someone else, does so and
continues in possession setting up title in himself and
adversely to the title of the owner, commences prescribing
title into himself and such prescription having continued
for a period of 12 years, he acquires title not on his own
but on account of the default or inaction on part of the real
owner, which stretched over a period of 12 years results
into extinguishing of the latter's title. It is that extinguished
title of the real owner which comes to vest in the
2755
wrongdoer. The law does not intend to confer any premium
on the wrong doing of a person in wrongful possession; it
pronounces the penalty of extinction of title on the person
who though entitled to assert his right and remove the
wrong doer and re-enter into possession, has defaulted and
remained inactive for a period of 12 years, which the law
considers reasonable for attracting the said penalty.
Inaction for a period of 12 years is treated by the Doctrine
of Adverse Possession as evidence of the loss of desire on
the part of the rightful owner to assert his ownership and
reclaim possession.
2884. However, the Court further observed that if
property, by virtue of some statutory provisions or otherwise, is
alienable, the plea of adverse possession may not be available
and held. :
23. The nature of the property, the nature of title
vesting in the rightful owner, the kind of possession which
the adverse possessor is exercising, are all relevant factors
which enter into consideration for attracting applicability
of the Doctrine of Adverse Possession. The right in the
property ought to be one which is alienable and is capable
of being acquired by the competitor. Adverse possession
operates on an alienable right. The right stands alienated
by operation of law, for it was capable of being alienated
voluntarily and is sought to be recognized by doctrine of
adverse possession as having been alienated involuntarily,
by default and inaction on the part of the rightful claimant,
who knows actually or constructively of the wrongful acts
of the competitor and yet sits idle. Such inaction or default
in taking care of one's own rights over property is also
2756
capable of being called a manner of 'dealing' with one's
property which results in extinguishing one's title in
property and vesting the same in the wrong doer in
possession of property and thus amounts to 'transfer of
immovable property' in the wider sense assignable in the
context of social welfare legislation enacted with the object
of protecting a weaker section.
2885. The Court also observed that the judicial precedents
should not be stressed too harsh and observed:
A judicial decision is an authority for what it
actually decides and not for what can be read into it by
implication or by assigning an assumed intention to the
Judges, and inferring from it a proposition of law which
the Judges have not specifically laid down in the
pronouncement. (Para 28)
2886. In para 14 of the judgment in Amrendra Pratap
Singh (supra), the Court also deprecated the practice of
following dictionary meaning as absolute while interpreting
statute and said :
Dictionaries can be taken as safe guides for finding
out meanings of such words as are not defined in the
statute. However, dictionaries are not the final words on
interpretation. The words take colour from the context and
the setting in which they have been used. It is permissible
to assign a meaning of a sense, restricted or wider than the
one given in dictionaries, depending on the scheme of the
legislation wherein the word has been used.
2887. In L.N. Aswathama & another Vs. V.P. Prakash
JT 2009 (9) 527 the Court, in para 17 and 18 said:
17. The legal position is no doubt well settled. To
2757
establish a claim of title by prescription, that is adverse
possession for 12 years or more, the possession of the
claimant must be physical/actual, exclusive, open,
uninterrupted, notorious and hostile to the true owner
for a period exceeding twelve years. It is also well settled
that long and continuous possession by itself would not
constitute adverse possession if it was either permissive
possession or possession without animus possidendi. The
pleas based on title and adverse possession are mutually
inconsistent and the latter does not begin to operate until
the former is renounced. Unless the person possessing
the property has the requisite animus to possess the
property hostile to the title of the true owner, the period
for prescription will not commence.
18. ...When a person is in possession asserting to be
the owner, even if he fails to establish his title, his
possession would still be adverse to the true owner.
Therefore, the two pleas put forth by the defendant in
this case are not inconsistent pleas but alternative pleas
available on the same facts. Therefore, the contention of
the plaintiffs that the plea of adverse possession is not
available to defendant is rejected.
2888. Further, in para 25 the Court said :
25. When defendant claimed title and that was proved to
be false or fabricated, then the burden is heavy upon
him to prove actual, exclusive, open, uninterrupted
possession for 12 years. In this case we have already held
that he did not make out such possession for 12 years prior
to the suit.
2889. Where a plea of adverse possession is taken, the
2758
pleadings are of utmost importance and anything, if found
missing in pleading, it may be fatal to such plea of adverse
possession. Since mere long possession cannot satisfy the
requirement of adverse possession, the person claiming it must
prove as to how and when the adverse possession commenced
and whether fact of adverse possession was known to real
owner. (R.N. Dawar Vs. Ganga Saran Dhama AIR 1993 Del.
19). In Parwatabai Vs. Sona Bai 1996 (10) SCC 266, it was
stressed upon by the Apex Court that to establish the claim of
adverse possession, one has to establish the exact date from
which adverse possession started. The claim based on adverse
possession has to be proved affirmatively by cogent evidence
and presumptions and probabilities cannot be substituted for
evidence. The plea of adverse possession is not always a legal
plea. It is always based on facts which must be asserted, pleaded
and proved. A person pleading adverse possession has no
equities in his favour since he is trying to defeat the right of the
true owner and, therefore, he has to specifically plead with
sufficient clarity when his possession became adverse and the
nature of such possession. (See Mahesh Chand Sharma Vs.
Raj Kumari Sharma AIR 1996 SC 869.
2890. In Parsinnin Vs. Sukhi (1993) 4 SCC 375, it said
that burden of prove lies on the party who claims adverse
possession. He has to plead and prove that his possession is nec
vi, nec clam, nec precario i.e., peaceful, open and continuous.
2891. Article 144 L.A. 1908 shows that where a suit for
possession is filed, it is the defendant to whom the plea of
adverse possession is available and it is he who has to take
necessary pleadings. A suit by a plaintiff based on adverse
possession is not contemplated by Article 144 inasmuch the suit
2759
contemplated therein is for restoration of possession and where
a person is already in possession, though adverse possession, the
question of filing a suit for possession would not arise. If the
chain of possession or continued possession ceased or
interrupted, particularly at the time of filing of the suit, the
adverse possession extinguishes and the earlier long possession,
may be of more than the statutory period, would not give any
advantage if the possession has been lost at the time of filing of
the suit.
2892. Besides, alternative plea may be permissible, but
mutually destructive pleas are not permissible. The defendants
may raise inconsistent pleas so long as they are not mutually
destructive as held in Biswanath Agarwalla Vs. Sabitri Bera &
others JT 2009 (10) SC 538.
2893. In Gautam Sarup Vs. Leela Jetly & others (2008)
7 SCC 85, the Court said that a defendant is entitled to take an
alternative plea but such alternative pleas, however, cannot be
mutually destructive of each other.
2894. In Ejas Ali Qidwai and others (supra) certain
interesting questions cropped up which also attracted certain
consequences flowing from annexation of province of Oudh in
1857 by the British Government. It appears that one Asghar Ali
and his cousin Muzaffar Ali granted a mortgage by conditional
sale of the entire estate of Ambhapur (commonly known as the
Taluka of Gandara) and certain villages to the then Maharaja of
Balrampur. The mortgaged property situated in District
Bahraich, which was in the Province of Oudh. The mortgagee
brought an action to enforce his right, got a decree in his favour
and ultimately possession of the property in 1922. The sons of
Asghar Ali thereafter brought an action in civil court for
2760
recovery of their share of the mortgaged property on the ground
that it was the absolute property of their father and on his death
devolved on all the persons who were his heirs under the
Mahomedan Law. They challenged Iqbal Ali's right to mortgage
the whole of estate and impeached the mortgaged transaction on
various grounds. The claim was resisted on the ground that
succession to the estate was governed by the rule of
primogeniture according to which the whole of the estate
descended first to Asghar Ali and after his death his eldest son
Iqbal Ali. The defence having been upheld the claim was
negatived by the trial court as well as the court of appeal. Before
the Privy Council the only question raised was whether the
succession to the property was regulated by the rule of
primogeniture or by Mahomedan Law.
2895. The Privy Council while considering the above
question observed that the Province of Oudh was annexed by
the East India Company in 1856 but in 1857 during the first war
of independence by native Indians much of its part was declared
independent. Soon after it was conquered by the British
Government and it got reoccupation of the entire province of
Oudh. Thereafter in March 1858 the British Government issued
a proclamation confiscating, with certain exceptions "the
proprietary right in the soil of the Province" and reserved to
itself the power to dispose of that right in such manner as to it
may seem fit. On 10
th
October 1859 the British Government
(the then Government of India) declared that every talukdar with
whom a summary settlement has been made since the re-
occupation of the Province has thereby acquired a permanent,
hereditary and transferable proprietary right, namely in the
taluka for which he has engaged, including the perpetual
2761
privilege of engaging with the Government for the revenue of
the taluka. Pursuant to that declaration, Wazir Ali with whom a
summary settlement of Taluka has already been made was
granted a Sanad which conferred upon him full proprietary
right, title and possession of the estate or Ambhapur. In the said
grant, there contained a stipulation that in the event of dying
intestate or anyone of his successor dies intestate, the estate
shall descend to the nearest male heir according to rule of
primogeniture. Subsequently, in order to avoid any further doubt
in the matter, Oudh Estates Act I of 1869 was enacted wherein
Wazir Ali was shown as a Tallukdar whose estate according to
the custome of the family on or before 13.2.1856 ordinarily
devolved upon a single heir. However, having noticed this state
of affairs, the Privy Council further observed that this rule was
not followed after the death of Wazir Ali and the Taluka was
mutated in favour of his cousin Nawazish Ali. He was recorded
as owner of Taluka. Thereafter in 1892 Samsam Ali entered the
joined possession with Nawazish Ali and after death of
Nawazish Ali, Samsam Ali was recorded as the sole owner. The
system of devolution of the property was explained being in
accordance with the usage of the family and when the name of
Asghar Ali was recorded, he also made a similar declaration.
Faced with the situation the appellant sought to explain the
possession of Nawazish Ali as adverse possession but the same
was discarded by the Privy Council observing:
"The principle of law is firmly established that a person,
who bases his title on adverse possession, must show by
clear and unequivocal evidence that his possession was
hostile to the real owner and amounted to a denial of his
title to the property claimed."
2762
2896. It appears that the plaintiffs initially sought to
maintain their claim of continued ownership, possession and
disruption against the Government authorities but later on the
plea of adverse possession against the defendant-Muslim parties
has been taken which makes the stand of the plaintiffs
inherently inconsistent and mutually destructive. The plaintiffs
ought to have elected one or the other case and could not have
taken a plea which is not an alternative but mutually destructive.
2897. In Nagubai Ammal and others Vs. B. Shama Rao
and others, AIR 1956 SC 593 the Court considered the doctrine
of election and observed:
"18. An admission is not conclusive as to the truth of the
matters stated therein. It is only a piece of evidence, the
weight to be attached to which must depend on the
circumstances under which it is made. It can be shown to
be erroneous or untrue, so long as the person to whom it
was made has not acted upon it to his detriment, when it
might become conclusive by way of estoppel.
........
Reliance was placed on the well-known observations
of Baron Park in Slatterie v. Pooley, (1840) 6 M & W 664
(669) (C) that "what a party himself admits to be true may
reasonably be presumed to be so", and on the decision in
34 Ind App 27 (B), where this statement of the law was
adopted. No exception can be taken to this proposition. But
before it can be invoked, it must be shown that there is a
clear and unambiguous statement by the opponent, such as
will be conclusive unless explained."
"The ground of the decision is that when on the same facts,
a person has the right to claim one of two reliefs and with
2763
full knowledge he elects to claim one and obtains it, it is
not open to him thereafter to go back on his election and
claim the alternative relief. The principle was thus stated
by Bankes, L. J.:
"Having elected to treat the delivery to him as an
authorised delivery they cannot treat the same act as a
misdelivery. To do so would be to approbate and
reprobate the same act".
The observations of Scrutton, L. J. on which the appellants
rely are as follows :
"A plaintiff is not permitted to 'approbate and reprobate'.
The phrase is apparently borrowed from the Scotch law,
where it is used to express the principle embodied in our
doctrine of election- namely, that no party can accept and
reject the same instrument: Ker v. Wauchope (1819) 1
Bligh 1 (21) (E) : Douglas-Menzies v. Umphelby 1908 AC
224 (232) (F). The doctrine of election is not however
confined to instruments. A person cannot say at one time
that a transaction is valid and thereby obtain some
advantage, to which he could only be entitled on the footing
that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage. That is to
approbate and reprobate the transaction".
It is clear from the above observations that the maxim that
a person cannot 'approbate and reprobate' is only one
application of the doctrine of election, and that its
operation must be confined to reliefs claimed in respect
of the same transaction and to the persons who are
parties thereto. The law is thus stated in Halsbury's Laws
of England, Volume XIII, page 454, para 512:
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"On the principle that a person may not approbate and
reprobate, a species of estoppel has arisen which seems to
be intermediate between estoppel by record and estoppel in
pais, and may conveniently be referred to here. Thus a
party cannot, after taking advantage under an order (e. g.
payment of costs), be heard to say that it is invalid and ask
to set it aside, or to set up to the prejudice of persons who
have relied upon it a case inconsistent with that upon
which it was founded; nor will he be allowed to go behind
an order made in ignorance of the true facts to the
prejudice of third parties who have acted on it". (para 23)
2898. The Doctrine of election was described by Jarman
on Wills, 6
th
Edn. Page 532 as under :
The doctrine of election may be thus stated. That he who
accepts a benefit under a deed or will must adopt the whole
contents of the instrument conforming to all its provisions
and renouncing every right inconsistent with it. It therefore
a testator has affected to dispose of property which is not
his own, and has given a benefit to the person to whom that
property belongs, the devisee or legatees accepting the
benefit so given to him must make good the testator's
attempted disposition, but if, on the contrary, he choose to
enforce his proprietary rights against the testator's
disposition, equity will sequester the property given to him,
for the purpose of making satisfaction out of it to the
person whom he has disappointed by the assertion of those
rights.
2899. This has been followed in several cases noticed and
followed by a Division Bench of Madras High Court in
Ammalu Achi Vs. Ponnammal Achi & others AIR 1919
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Madras 464. The above judgment, however, shows that the
doctrine of election as followed therein was that of applicable in
England based on English decision since Sections 35 of Transfer
of Property Act, 1882 and 172 of Succession Act, 1865 were
found by the Court as enunciating the doctrine of election as
enforced in England but those sections were not applicable to
Hindus in India.
2900. In R.N. Gosain Vs. Yashpal Dhir (supra), the Court
said:
"10. Law does not permit a person to both approbate
and reprobate. This principle is based on the doctrine of
election which postulates that no party can accept and
reject the same instrument and that "a person cannot say at
one time that a transaction is valid any thereby obtain
some advantage, to which he could only be entitled on the
footing that it is valid, and then turn round and say it is
void for the purpose of securing some other advantage".
[See:Verschures Creameries Ltd. Vs. Hull and Netherlands
Steamship Co. Ltd. (1921) KB 608, 612 (CA), Scrutton,
LJ]. According to Halsbury's Laws of England, 4th Edn.,
Vol. 16, "after taking an advantage under an order (for
example for the payment of costs) a party may be precluded
from saying that it is invalid and asking to set it aside".
(para 1508).
2901. In National Insurance Co. Ltd. Vs. Mastan (supra)
the Court said:
"23. The 'doctrine of election' is a branch of 'rule of
estoppel', in terms whereof a person may be precluded by
his actions or conduct or silence when it is his duty to
speak, from asserting a right which he otherwise would
2766
have had. The doctrine of election postulates that when
two remedies are available for the same relief the
aggrieved party has the option to elect either of them but
not both. Although there are certain exceptions to the same
rule but the same has no application in the instant case."
2902. The question of effect of gap in continuous
possession came to be considered in Devi Singh Vs. Board of
Revenue for Rajasthan and others, (1994) 1 SCC 215 and in
para 5 the Court held as under:
"The salutary principle of appreciation of evidence in
possessory matters is that when a state of affairs is shown
to have existed for a long course of time but a gap therein
puts to doubt its continuity prudence requires to lean in
favour of the continuity of things especially when some
plausible explanation of the gap is forthcoming."
2903. Since adverse possession is a plea to usurp title over
immovable property which otherwise the claimant does not
possess and its successful claim would mean that the real owner
shall be denuded of his title and the same would stand conferred
upon the claimant, the pleadings in this aspect, have been held
of utmost importance. They have to be very clear, emphatic and
to the extent of covering every necessary ingredient to satisfy
the claim of adverse possession. The claimant cannot take
advantage of default on the part of the other side but has to set
up his case on his own failing which it is he, who has to suffer.
Since this kind of claim has the result of defeating the very right
of an otherwise rightful person, the law is very strict on this
aspect. It needs a thorough and minute inquiry into the claim of
the person who asserts title on the basis of adverse possession.
2904. In Abubakar Abdul Inamdar (supra) in the context
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of Articles 64 and 65 of L.A. 1963 emphasizing the importance
of pleadings in para 5 of the judgment the Apex Court said :
"With regard to the plea of adverse possession, the
appellant having been successful in the two Courts below
and not in the High Court, one has to turn to the pleadings
of the appellant in his written statement. There he has
pleaded a duration of his having remained in exclusive
possession of the house, but nowhere has he pleaded a
single overt act on the basis of which it could be inferred
or ascertained that from a particular point of time his
possession became hostile and notorious to the complete
exclusion of other heirs, and his being in possession openly
and hostilely. It is true that some evidence, basically of
Municapal register entries, were inducted to prove the
point but no amount of proof can substitute pleadings
which are the foundation of the claim of a litigating party.
The High Court cought the appellant right at that point and
drawing inference from the evidence produced on record,
concluded that correct principles relating to the plea of
adverse possession were not applied by the courts below.
The finding, as it appears to us, was rightly reversed by the
High Court requiring no interference at our end." (Para 5)
2905. In Ram Charan Das (supra) the property of a Mutt
was alienated by Mahant by executing a Mukararri (permanent
lease) in favour of one Munshi Naurangi Lal. The sale deed of
the land in dispute was also executed to another one and in both
the documents it was said that they were executed to meet the
expenses and necessities of the Mutt. After the death of Mahant,
a suit was filed by successor in office against the lessee and
purchaser etc. claiming possession of the property in dispute to
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Mutt. The defendants besides others, took the plea of adverse
possession also. The question was did the possession of the
concerned defendant became adverse to Mutt or Mahant
representing the Mutt on the date of relevant assurance or date
of death of the concerned Mahant. The trial court held the latter
date to be correct while the High Court took a contrary view and
upheld the former date. The Privy Council held:
" In other words a mahant has power (apart from any
question of necessity) to create an interest in property
appertaining to the Mutt which will continue during his
own life, or to put it perhaps more accurately, which will
continue during his tenure of office of mahant of the mutt,
with the result that adverse possession of the particular
property will only commence when the mahant who had
disposed of it ceases to be mahant by death or otherwise. If
this be right as it must be taken to be, where the
disposition by the mahant purports to be a grant of a
permanent lease, their Lordships are unable to see why the
position is not the same where the disposition purports to
be an absolute grant of the property nor was any logical
reason suggested in argument why there should be any
difference between the two cases. In each case the
operation of the purported grant is effective and endures
only for the period during which the mahant had power to
create an interest in the property of the mutt."
2906. Recently, the Apex Court has considered in detail
the various authorities on the question of adverse possession in
Hemaji Waghaji Jat (supra) and in para 18 observed that plea
of adverse possession is not a pure question of law but a blended
one of fact and law. Therefore, a person who claims adverse
2769
possession should show : (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his
possession was open and undisturbed. A person pleading
adverse possession has no equities in his favour. Since he is
trying to defeat the rights of the true owner, it is for him to
clearly plead and establish all facts necessary to establish his
adverse possession.
2907. The Court also referred to its earlier decision in D.N.
Venkatarayappa (supra) observing :
Therefore, in the absence of crucial pleadings,
which constitute adverse possession and evidence to show
that the petitioners have been in continuous and
uninterrupted possession of the lands in question claiming
right, title and interest in the lands in question hostile to
the right, title and interest of the original grantees, the
petitioners cannot claim that they have perfected their title
by adverse possession.
2908. In D.N. Venkatarayappa (Supra), the Court
emphasized the importance of pleading as also the pre requisites
of plea of adverse possession and said :
3. ...What requires to be pleaded and proved is that
the purchaser disclaimed his title under which he came into
possession, set up adverse possession with necessary
animus of asserting open and hostile title to the knowledge
of the true owner and the later allowed the former, without
any let or hindrance, to remain in possession and
enjoyment of the property adverse to the interest of the true
owner until the expiry of the prescribed period. The
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classical requirement of adverse possession is that it
should be nec vi, nec clam, nec precario.
... ordinary classical requirement of adverse
possession is that it should be nec vi, nec clam, nec
precario and the possession required must be adequate in
continuity, in publicity and in extent to show that it is
possession adverse to the competitor.
apart from the actual and continuous possession
which are among other ingredients of adverse possession,
there should be necessary animus on the part of the person
who intends to perfect his title by adverse possession.
A person who under the bona fide belief thinks that
the property belongs to him and as such he has been in
possession, such possession cannot at all be adverse
possession because it lacks necessary animus for perfecting
title by adverse possession."
... one of the important ingredients to claim adverse
possession is that the person who claims adverse
possession must have set up title hostile to the title of the
true owner.
...there is not even a whisper in the evidence of the
first petitioner with regard to the claim of adverse
possession set up by the petitioners. It is not stated by the
petitioners that they have been in continuous and
uninterrupted possession of the lands in question.
But, the crucial facts to constitute adverse
possession have not been pleaded. Admittedly, the
appellant came into possession by a derivative title from
the original grantee. It is seen that the original grantee has
no right to alienate the land. Therefore, having come into
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possession under colour of title from original grantee, if
the appellant intends to plead adverse possession as
against the State, he must disclaim his title and plead his
hostile claim to the knowledge of the State and that the
State had not taken any action thereon within the
prescribed period. Thereby, the appellant's possession
would become adverse. No such stand was taken nor
evidence has been adduced in this behalf. The counsel in
fairness, despite his research, is unable to bring to our
notice any such plea having been taken by the appellant."
Therefore, in the absence of crucial pleadings,
which constitute adverse possession and evidence to show
that the petitioners have been in continuous and
uninterrupted possession of the lands in question claiming
right, title and interest in the lands in question hostile to
the right, title and interest of the original grantees, the
petitioners cannot claim that they have perfected their title
by adverse possession
...person, who comes into possession under colour
of title from the original grantee if he intends to claim
adverse possession as against the State, must disclaim his
title and plead his hostile claim to the knowledge of the
State and the State had not taken any action thereon within
the prescribed period.
5. ... in claiming adverse possession certain pleas
have to be made such as when there is a derivative title as
in the present case, if the appellants intend to plead
adverse possession as against the State, they must disclaim
their title and plead this hostile claim to the knowledge of
the State and that the State had not taken any action within