This article is written by Shreyas A. Lele.

 

 

Chronology of Events (1528 – 2019)

DATE	EVENT
1528	Babri Masjid was constructed by Emperor Babur, through his commander Mir Baqi.
1856-57	Disputes broke out between Hindus & Muslims in the vicinity of the structure. The colonial government tried to resolve it and set up a 7-feet long grill-brick wall dividing the structure into two parts: the inner portion (given for use to the Muslim community) and the outer courtyard (given for use to the Hindu community).
1877	Another door was opened on the northern side of the courtyard and given to the Hindus to control and manage.
January 1885	Mahant Raghubar Das filed a suit (“Suit of 1885”) before the Sub- Judge, Faizabad seeking permission to build a temple on the Ram Chabutra in the outer courtyard.
24 Dec 1885	The Suit of 1885 was dismissed by the Judge while noting that there was a likelihood of communal clashes if such permission was granted. However, the Judge observed that the ownership of Hindus over the Chabutra was undoubted. Subsequently, an appeal was filed against this decision.
18 Mar 1886	The appeal was dismissed by the District Judge. In addition, the District Judge also struck off the remarks made by the Sub-Judge on the ownership of Hindus over the Chabutra. Subsequently, an appeal was filed against this decision.
01 Nov 1886	The second appeal was dismissed by Judicial Commissioner of Oudh on the ground that the plaintiff had failed to prove the title of Hindus to the Chabutra.
1934	More disputes broke out between Hindus and Muslims and the domed structure of the mosque was also damaged and later repaired at the state’s expense.
22-23 Dec 1949	In the night intervening these dates, some miscreants broke open the locks of the mosque and placed idols of Lord Ram under the central dome of the mosque. Subsequently, an FIR was registered against them.

29 Dec 1949	The Additional City Magistrate, Faizabad-cum-Ayodhya issued an order under Section 145 of the Code of Criminal Procedure, 1878 (“CrPC of 1878”) declaring that the disputes over the property in question were likely to cause breach of peace and requiring parties to file written submissions to stake their claims. Simultaneously, an attachment order was also passed and Priya Datt Ram, the Chairman of the Municipal Board of Faizabad was appointed receiver, till the adjudication of title was complete. As per the order, only 2-3 pujaris could enter the property to perform pooja whereas the general public were allowed darshan from outside, beyond the wall.
05 Jan 1950	The receiver took custody of the inner courtyard.
16 Jan 1950	Gopal Singh Visharad, a Hindu devotee, filed a suit (“Suit No. 1”) before the Civil Judge, Faizabad praying for a declaration that he be allowed to enter the inner courtyard to offer prayers to the idols. An ad-interim injunction was also granted in the suit.
19 Jan 1950	The said ad-interim injunction was modified to prevent the idols from being removed and interference being caused in pooja.
03 Mar 1950	The court confirmed the earlier order of injunction. Subsequently, an appeal was filed against the order granting injunction.
01 Apr 1950	A Court Commissioner was appointed to prepare a map of the disputed premises.
26 May 1950	The appeal against the order of injunction was dismissed by the High Court of Allahabad (“High Court”).
25 Jun 1950	The Court Commissioner submitted his report containing the map of the disputed property.
05 Dec 1950	Paramhans Ramchandra Das filed a suit (“Suit No. 2”) before the Civil Judge, Faizabad seeking similar relief as that in Suit No. 1.
17 Dec 1959	Nirmohi Akhara filed a suit (“Suit No. 3”) before the Civil Judge, Faizabad praying for an order to hand over the management and control of the temple to the plaintiff in Suit No. 3.

18 Dec 1961	Sunni Central Waqf Board and some Muslims who were residents of Ayodhya filed a suit (“Suit No. 4”) before the Civil Judge, Faizabad praying for a declaration that the disputed property was a public mosque, for delivery of possession of the property to the plaintiffs and removal of idols from the property.
06 Jan 1964	Suits No. 1, 3 and 4 were directed to be consolidated and heard together.
25 Jan 1986	Umesh Chandra filed an application before the Civil Judge, Faizabad praying for breaking open of the locks on the disputed property and allowing public access to the property.
01 Feb 1986	The District Court issued directions as per the applicant’s prayer.
03 Feb 1986	A writ petition was filed before the High Court challenging the said order and the Court directed status quo to be maintained until further orders.
01 Jul 1989	A suit (“Suit No. 5”) was filed before Civil Judge, Faizabad by the deity (“Bhagwan Shri Ram Virajman”) and the birthplace (“Shri Ram Janma Bhoomi”) through a next friend praying for a declaration of title to the disputed property and restraining the defendants from interfering, in any manner, with the construction of a temple. This suit was directed to be heard together with Suits No. 1, 3 and 4.
10 Jul 1989	Suits No. 1, 3, 4 and 5 were collectively transferred to the High Court.
21 Jul 1989	The Chief Justice of the High Court constituted a three-judge bench to hear the suits collectively.
14 Aug 1989	The High Court passed an interim order directed status quo to be maintained until further orders.
18 Sep 1990	Suit No. 2 was withdrawn by the plaintiff.
07 & 10 Oct 1991	The State Government of Uttar Pradesh issued notifications under Sections 4(1), 6 and 17(4) of the Land Acquisition Act, 1894 (“Land Acquisition Act”) and acquired an area of 2.77 acres comprising the disputed property and its adjoining areas. A writ petition was filed in the High Court challenging this notification.
11 Dec 1991	The High Court set aside the notifications and subsequent acquisition.
06 Dec 1992	A large crowd of kar-sevaks destroyed the entire structure and constructed a makeshift temple over the disputed property.

1993	The Central Government passed the Acquisition of Certain Area at Ayodhya Act, 1993 (“Ayodhya Acquisition Act”) and acquired an area of 68 acres, including the disputed property. Section 4(3) of this Act also directed abatement of all suits that were pending in relation to the disputed property. Simultaneously, the President of India made a reference to the Supreme Court of India (“Supreme Court”) under Article 143 of the Constitution of India on the question of existence of any structure on the disputed property prior to the Babri Masjid. Several writ petitions were filed before the Supreme Court and the High Court challenging the validity of the Ayodhya Acquisition Act.
24 Oct 1994	A Constitution Bench of the Supreme Court held in the case titled Dr. M. Ismail Faruqui v. Union of India (“Ismail Faruqui case”) that Section 4(3) of the Ayodhya Acquisition Act was unconstitutional and as a result, all the pending suits revived. The Court also declined to answer the reference made by the President of India. The Court appointed the Central Government to be the receiver of the property for the maintenance of status quo.
24 Jul 1996	Recording of evidence began before the High Court in the consolidated suits.
23 Oct 2002	The High Court issued directions to the Archaeological Survey of India (“ASI”) to carry out an investigation and have the entire ground of the disputed property surveyed by ground penetrating technology.
17 Feb 2003	The report of the ASI based on the ground penetrating technology indicated some anomalies which could be associated with the existence of pillars and foundations.
05 Mar 2003	High Court directed the ASI to conducted excavation of the disputed property for further analysis.
22 Aug 2003	The ASI submitted its final report to the High Court.
30 Sep 2010	After going through voluminous evidence in form of witness testimonies, books, religious texts, artefacts and other evidence, the High Court finally pronounced its verdict. The Court decided that the entire structure would be split into 3 parts, with each of the parties: Bhagwan Shri Ram Virajman, Sunni Central Waqf Board and Nirmohi Akhara getting equal share in the entire property. Subsequently, several appeals were filed against the said decision of the High Court, by various parties.

09 May 2011	A Division Bench of the Supreme Court admitted the appeals and stayed the operation of the decision of the High Court dated 30/09/2010. Parties were also directed to maintain status quo until further orders.
2013-2017	The Supreme Court issued directions for summoning the digital record of all evidence led before the High Court and furnishing copies to the parties.
05 Dec 2017	The Supreme Court heard a plea that the appeals filed against the impugned decision of the High Court be referred to a larger bench in view of certain observations made by the Supreme Court in the Ismail Faruqui case. The Court rejected this plea.
14 Mar 2018	A Three-judge Bench of the Supreme Court heard a plea that the decision in the Ismail Faruqui case required reconsideration by a larger bench.
27 Sep 2018	The Supreme Court rejected the plea and declined to refer the decision in the Ismail Faruqui case to a larger bench. The Court also listed the appeals against the impugned decision of the High Court for hearing.
08 Jan 2019	The Supreme Court passed an administrative order by which the Chief Justice of India constituted a five-judge bench to hear the appeals.
26 Feb 2019	The Supreme Court referred the parties to a mediation panel in the hope of finding a permanent solution to the dispute. The mediation panel consisted of Justice F. K. Mohammad Kaifulla, former Supreme Court judge; Shri Shri Ravi Shankar, a Hindu spiritual leader; and Mr. Shriram Panchu, Senior Advocate.
02 Aug 2019	Since no settlement had been reached by mediation, the Supreme Court directed the appeals to be heard from 06/08/2019.
18 Oct 2019	Hearing was concluded before the Supreme Court after a marathon day-to-day hearing of 40 days and the Court reserved its judgment.
09 Nov 2019	The Supreme Court pronounced its judgment.

Composition of the Bench & Members of the Bar involved

The 5-judge Bench constituted to hear the appeals filed in the present suit comprised of Chief Justice of India Ranjan Gogoi and Justices S. A. Bobde, D. Y. Chandrachud, Ashok Bhushan and S. A. Nazeer. The Supreme Court heard arguments on a day-to-day basis for 40 days, concluded the hearings on 18/10/2019 and reserved the judgment. Generally, the time between the day the judgment is reserved and the day it is pronounced is months. However, in this case, there was urgency to pronounce the verdict because CJI Gogoi was due to retire from office on 17/11/2019. If the verdict had not been pronounced by then, a new bench would have to be constituted and the matter would have to be heard all over again. The Court pronounced its judgment on 09/11/2019.

In the present dispute, there were as many as 14 appeals made by different parties from the 2010 judgment of the Allahabad High Court. The main disputants were all represented by notable senior advocates. Some of them were Mr. K. Parasaran, Mr. C. S. Vaidyanathan and Mr. P. S. Narasimha (appeared for Bhagwan Shri Ram Virajman and other plaintiffs in Suit No. 5), Dr. Rajeev Dhavan and Mr. Zafaryab Jilani (appeared for Sunni Central Waqf Board), Mr. S. K. Jain (appeared for Nirmohi Akhara), Mr. Ranjit Kumar (appeared for Rajendra Singh Visharad) and Mr. Shekhar Naphade and Ms. Meenakshi Arora (appeared for different Muslim parties). Contribution of other advocates who assisted the senior advocates was also acknowledged by the Court.

Suit of 1885 (Instituted by Mahant Raghubar Das)

Facts

Mahant Raghubar Das instituted a suit in 1885 before the Sub-Judge, Faizabad seeking a decree for construction of a temple at Ram Chabutra, in the outer courtyard. Although the judge accepted the claim of ownership and possession of Ram Chabutra, he dismissed the suit on the ground that if permission is granted, it will cause serious communal tensions. While hearing the appeal, the District Judge observed that even though a Masjid had been constructed on a land that was sacred to Hindus, this construction happened more than 300 years ago, and it was too late in time to remedy the situation. The District Judge thus, dismissed the appeal and struck off the observations made by the Sub-Judge about Hindus’ ownership and possession of Ram Chabutra, on the ground that such an observation had become redundant. A second appeal made to the Judicial Commissioner, Oudh also failed. It was argued by the Muslim parties that the outcome of the Suit of 1885 operated as res judicata to the appeals in question before the Supreme Court.

What the court held?

• Was the law of res judicata attracted to the present proceedings?

A plea of res judicata, simply put, is a defense taken by a person sued in a court, saying that the dispute has already been decided earlier by a competent court, so a re-trial of the same dispute should not be permitted. If it were permitted, it would lead to endless litigation. In this case, the plea of res judicata was raised on the ground that the issues substantially in question in the existing suits were also substantially in question in the Suit of 1885. It was also contended that an observation that Hindus do not have ownership or possession of Ram Chabutra would be applicable in the existing dispute. However, the Court refuted these arguments and held that Mahant Raghubar Das was suing only in a personal capacity seeking permission only for him to construct a Mandir on Ram Chabutra. It could not be said that the Mahant was suing in a representative capacity for all Hindus nor were the issues framed or the reliefs sought same as those in the existing disputes. As a result, the plea of res judicata was not allowed.

Suit No. 1 (Instituted by Gopal Singh Visharad)

Facts

Gopal Singh Visharad, who described himself as a follower of Sanatan Dharma, instituted this suit on 16/01/1950 for enforcement of his right to enter the temple and offer worship. The cause of action for this suit arose when he was prevented by government officials from entering the temple and exercising his right to worship. Gopal Singh Visharad passed away during the pendency and was substituted by his son, Rajendra Singh Visharad, as the plaintiff.

What the court held?

• Had the suit abated after the death of Gopal Singh Visharad?

An argument was made that the suit abated when the original plaintiff, Gopal Singh Visharad passed away during its pendency. However, the Court referred to the language of the pleadings to conclude that the suit was not filed merely to exercise a private right but a right of the entire Hindu community. Such a suit could not abate by the death by the plaintiff as it was not restricted to only his rights. Therefore, the Court affirmed that the suit could be pursued by his son, who was also a follower of Sanatan Dharma.

Regarding the success or failure of this suit, the Court held that the outcome of Suit No. 5 would materially impact Suit No. 1 and hence, the Court reserved its decision of Suit No. 1 till the decision of Suit No. 5.

Suit No. 3 (Instituted by Nirmohi Akhara)

Facts

Nirmohi Akhara, a Panchayati Math of the Ramanandi Sect of Bairagis, claimed that Shri Ram Janma Bhoomi had always “belonged to it”, that it had always been in the management of the Janma Bhoomi and would receive offerings that were made to the deity through the incumbent Mahant. It instituted a civil suit on 17/12/1959 for being restored in the management of the Janma Bhoomi. The ground for filing the suit was the order of the Additional City Magistrate made on 29/12/1949 under Section 145 of the CrPC of 1898. The case of Nirmohi Akhara was that the aforesaid order of the Magistrate and the subsequent order of appointing a receiver deprived it of its right to be the manager of the Janma Bhoomi and receive offerings. It was contended that the cause of action arose on 05/01/1949 when the receiver took custody of the disputed property, but the suit was filed nearly 11 years later.

What the court held?

• Is a civil suit filed for recovering a right from an authority discharging a statutory function valid?

The Akhara contended that its ground for instituting the suit was the order of the Magistrate under Section 145 and a subsequent order of appointing a receiver, which had deprived it of its right to manage the Janma Bhoomi. Section 145 is a provision that empowers a Magistrate to declare that a dispute over a property is likely to cause breach of peace and take necessary steps for preservation of that property. The Court extensively analyzed its earlier decisions and observed that the power vested in a Magistrate under Section 145 was a preventive one, to be exercised by him only if a dispute was likely to cause breach of peace. An order of appointing a receiver was only to safeguard the property from destruction by the disputants and such an order was, in no way, a determination of anybody’s right and title to the property. If the Akhara believed that they had certain rights in the property, the correct remedy was to bring an action praying for declaration of its right. Instead of doing this, the Akhara sought to recover its right from a receiver who was not holding the property as an owner/lessee but was only discharging a statutory function of safeguarding it. Such a suit was held not to be maintainable.

• Was the suit barred by limitation?

A limitation period is the maximum time that the law grants a person aggrieved by an action to institute legal proceedings. Once this period lapses, courts do not entertain any legal proceedings instituted thereafter, unless there is sufficient cause for delay.

Whether the suit was one for recovering possession: The Court and the defendants raised questions about the maintainability of the suit on the ground of limitation. The Akhara argued that its case fit within Article 142 of the Limitation Act, 1908. This Article provides a limitation period of 12 years to a person who has been dispossessed or has discontinued his possession of a property, to bring a legal action for recovering possession. If this argument had been accepted, the suit of the Akhara (which was filed after almost 11 years) would have been within limitation. However, the Court rejected this argument. It analyzed the Akhara’s pleadings and observed that even the Akhara has never claimed to be in possession of the property and has always claimed that its right was merely to manage the Janma Bhoomi and receive offerings thereon. As a result, the suit filed by the Akhara could not be called a suit of recovery of possession and therefore, Article 142 (which was restricted to suits for possession) had no application. The suit was thus, held to be barred by limitation.

Whether there was a continuing wrong: In addition to Article 142, the Akhara claimed that their right was affected when they could not manage the Janma Bhoomi and as this position had continued till filing of the suit, there was a continuing wrong against them and a fresh cause of action arose each day that position continued to exist. The Court, once again, emphasized on the nature of the “wrong” that was allegedly committed when the Magistrate passed the order under Section 145 and later when the receiver took custody of the property. The Court reiterated that the orders were only passed to protect the property from destruction and there was no adjudication on who has the right to own or manage the property. Arguendo, even if the order of Magistrate was not required in the given circumstances, the Magistrate was statutorily empowered to do so. As a result, it was incorrect to say that a statutorily empowered order of the Magistrate made to preserve a property gave rise to a legal wrong. Therefore, as there was no wrong committed, the question whether it was a continuing wrong or not, did not arise.

• Had Nirmohi Akhara proven their uninterrupted possession of the inner courtyard of the disputed property?

The Akhara entirely denied the incident of 22-23 December 1949 when idols of Lord Ram were surreptitiously placed in the temple by some people. The Akhara always maintained the stance that the disputed structure was never a mosque but always a temple. Further, it claimed that the temple was always under their management and it was their pujaris who received grants from devotees. As evidence of their claim, the Akhara examined several witnesses. However, the Court held that there were material inconsistencies and contradictions in their witnesses and no reliable account could be brought forth that showed long and uninterrupted possession of the inner courtyard. To the contrary, the Court held that the documentary evidence proves the existence of a mosque at the disputed structure, at least between 1934 and 1949. For these reasons, the Akhara’s claim of title and possession of the inner courtyard failed.

Suit No. 5 (Instituted by Bhagwan Shri Ram Virajman through a next friend)

Facts

This suit was instituted by the deity, Bhagwan Shri Ram Virajman as the 1^st plaintiff, the birthplace, Shri Ram Janma Bhoomi as the 2^nd plaintiff and the next friend (originally, Shri Deoki Nandan Agarwala, former Judge, Allahabad High Court) as the 3^rd plaintiff. The plaintiffs sought a declaration that the entire disputed property was vested in the 1^st plaintiff and simultaneously, an injunction prohibiting the defendants from interfering, in any manner, with the construction of a new Ram Mandir on the disputed property. The plaint stated that the deity and its devotees are unhappy with the state of the pending suits and the disputed property and are thus, desirous of a new temple being constructed. For this purpose, a trust called the ‘Shri Ram Janma Bhoomi Nyas Trust’ was registered and the head of the Ramananda Sampradaya was entrusted with this entire task. The plaint also avers that some parties to the previous suits only want personal gain by taking control of the deity and hence, a suit has been brought by the deity itself.

What the court held?

• Whether Bhagwan Shri Ram Virajman & Shri Ram Janma Bhoomi are juristic persons?

The status of the 1^st and 2^nd plaintiffs in Suit No. 5 as juristic persons was challenged by the Sunni Central Waqf Board and some other Muslim litigants. While addressing this issue, the Court delved into history to analyze the reasoning behind filing a suit with such juristic persons. Hinduism believes that God or the paramatma (Supreme Being) is omnipresent and does not take a physical or tangible form. For the benefit of devotees, idols were believed to be the physical embodiment of the God and worshipped. God, being metaphysical, is not capable of being identified as a legal person but an idol, which has a fixed and concrete form, is perfectly capable of such conferment. The Court traced the history and the purpose behind conferring legal personality on a Hindu idol. In India, there is long history of people donating their entire property for a religious or charitable purpose, in the name of God. But with the actual receiver of the property having no physical presence, how will it be decided who holds the property after it is donated? The trust or any other body that managed the affairs of the temple that hosted the deity would appropriate it, but there was always a possibility of misuse. Moreover, whenever disputes arose on the validity of the donation or between rival trusts or temples claiming the donated property, how were courts to solve them? There was a need to confer ownership of the donated property on a single entity who would always be at the center of the donation. Thus, a deity was recognized as a juristic person in whom property donated for a religious or charitable purpose would vest. The trust or other body that managed the temple which hosted the deity would essentially be a trustee tasked with using the property for the intended religious or charitable purpose. Thus, the status of Bhagwan Shri Ram Virajman as juristic person was accepted by the Court.

However, the Court did not hold the same views about Shri Ram Janma Bhoomi. It was argued by the plaintiffs that conferral of legal personality on the birthplace could be done purely on the ground of the faith of devotees, in as much that the devotees of Lord Ram worshipped the birthplace of Lord Ram itself. However, the Supreme Court rejected this contention. The Court observed that if legal personality was given to a piece of land on faith alone, all the legal principles governing title to immoveable property would be rendered meaningless. There was legal necessity behind conferring juristic personality on an idol (upholding the will of the donor and protecting the interests of beneficiaries from mismanagement) but the same could not be said about a piece of land as there was no donation or endowment involved. Moreover, immoveable property, by its very nature, has the capacity of being owned, leased, partitioned and sold. If legal personality is granted to immoveable property, it loses all the above characteristics and potentially, it could even be allowed to own property, resulting in the absurd scenario of “property owning property”. On this reasoning, the Court refused to recognize Shri Ram Janma Bhoomi as a juristic person.

• Who had the shebaiti rights to the deity and does the shebait have the exclusive right to sue on behalf of the deity?

A shebaiti right is a right to manage the affairs of a deity. In addition to this, the shebait has the right to sue on behalf of the deity. The Nirmohi Akhara (who was the plaintiff in Suit No. 3 but one of the defendants in Suit No. 5) was claiming shebaiti rights to the idols of Bhagwan Shri Ram Virajman. The Akhara had challenged the maintainability of Suit No. 5 on the ground that the shebait has exclusive right to sue on behalf of the deity and therefore, a suit filed through a next friend is impermissible.

The Court observed that even though the property vests in the idols of the deity, for all practical purposes, it is necessary that some human agent must bring or defend suits that concern the idol’s property, on behalf of the idol. Ordinarily, such a right is vested only in the shebait or the manager. However, the shebait being human, may sometimes act in a selfish manner and even contrary to the interests of the deity or simply fail to look after the interests of the deity. The central idea is that the property vested in the idols should be adequately protected and used for the purpose for which it was dedicated to God. Therefore, when the person entrusted with this task fails to fulfil it, a worshipper may be allowed to bring a suit on behalf of the idol, only in the best interests of the idol. However, this led to the apprehension of any person calling himself a worshipper of an idol and bringing an action mala fide for gratifying a personal interest. Therefore, what had to be first tested was whether the next friend was acting in a bona fide manner or not. The original next friend, Shri Deoki Nandan Agarwala had passed away in 2002 and was substituted with Dr. Thakur Prasad Verma as the next friend. Subsequently, an application was made for replacing Dr. Vema with Mr. Triloki Nath Pande as the next friend. The Allahabad High Court dismissed the application but on appeal, the Supreme Court allowed it. No objections were raised before the Supreme Court to the appointment of Mr. Pande. As a result, it was not open to question the bona fide intention of the next friend at this stage. The question which then arose was whether Nirmohi Akhara had proved the existence of their shebaiti rights, the answer to which would affect the maintainability of Suit No. 5.

The Court observed that the best evidence of the existence of a shebaiti right is a deed of endowment or dedication which expressly confers that right on a person. Such a person becomes a de jure shebait. However, in cases where such a deed is absent, a person claiming to be a shebait would have to prove his shebaiti right by way of his past conduct showing that he has always managed the idol and acted in the best interest of the property held by the idol. Such a person is a de facto shebait. Nirmohi Akhara claimed to be a de facto shebait based on their uninterrupted possession of the inner courtyard which the Court had already refuted. The Court held that the oral evidence led by the Akhara would, at best, prove that the Akhara was present in Ayodhya or in and around the disputed site. It was not enough to hold that the Akhara was in possession of the premises or in charge of management, therefore, the contention of existence of shebaiti rights of the Akhara was not accepted. As a result, in the absence of a shebait, a suit on behalf of the deity could be brought by a next friend and Suit No. 5 was held to be maintainable.

• How was the report of the Archaeological Survey of India (ASI) appreciated?

In 2002, the Allahabad High Court ordered the ASI to investigate at the disputed premises using ground penetrating technology. The initial findings of ASI were that were a lot of ‘anomalies’ beneath the surface which could be associated with ancient structures like walls and pillars. However, the report stated that these findings would have to be confirmed using techniques such as archaeological trenching. Therefore, the High Court ordered the premises to be excavated. The purpose of the excavation was to determine whether there was any prior structural activity over the disputed site and if yes, whether it was religious in nature. The archaeologists were directed to investigate without disturbing the existing temple or hindering worship. For utmost transparency, it was also directed that the excavation would take place in the presence of the disputing parties and their counsel. The ASI dug and investigated nearly 100 trenches around the disputed structure in 5 months and submitted their report shortly after. In its report, the ASI divided the timeline from 6^th century B.C. till present day into 9 periods and stated its findings on man-made structures in each period. The final report opined, “…indicative of remains which are distinctive features found associated with the temples of north India.” Several objections were raised to the report, one of them being that the report does not categorically state whether a temple was demolished, and a mosque was constructed over it. Another objection challenged the value of the report on the ground that it was only an opinion of an expert and therefore, not conclusive. Yet another objection stated that archaeology is only a social science as opposed to the natural sciences and therefore, subjective in nature. The Court answered all these objections by highlighting the organized functioning of the ASI team, its use of purely scientific methods of investigation and absolute compliance with the High Court’s orders. This afforded very high credibility to the report and it could not be ignored as just being another opinion.

Then came the most important question which the Court to sought to answer. Had the erstwhile Babri Masjid been constructed on the disputed property after willful destruction of a Hindu temple? The ASI report only stated that there was a structure underneath the surface that was indicative of a Hindu north Indian temple. It was entirely silent on whether such a temple was destroyed or not. This, the Court noted, gave rise to two possibilities: first, that the earlier temple had collapsed due to natural calamity and second, that the earlier temple was willfully destroyed by human forces. The ASI report was silent on this aspect. Additionally, the earlier temple dated back to the 12^th century and the Babri Masjid was constructed in the 16^th century. There was no evidence to record what transpired over this gap of four centuries. Thus, the ASI report could not be the sole basis to confer title to the property on anyone and it could only be used to corroborate other evidence.

• How was the evidence that was led for proving the nature and use of the disputed structure, interpreted?

To establish the usage of the inner courtyard, particularly the area under the central dome, as a temple for the worship of Lord Ram, several Hindu and Muslim witnesses were examined. In addition, several photographs taken by the State Archaeological Department in 1990 were relied upon as evidence. A perusal of these photographs showed inter alia three things; inscriptions of ‘Allah’ on the disputed structure, presence of black ‘Kasauti’ pillars with some images of Hindu gods and goddesses and a depiction of an eagle flanked by lions which seemed to be of non-Islamic origin. Then came the turn of religious texts, books and travelogues to be examined. Excerpts from the Valmiki Ramayan, Skanda Puran and Shri Ramacharitmanas were cited, which mention Ayodhya as the birthplace of Lord Ram. Among ancient travelers and gazetteers, accounts and observations of Carnegy, Cunningham, Tieffenthaler and a few others were included. These accounts describe what the authors saw when they visited Ayodhya and the disputed site at different points of time in history. Forceful arguments were made against the admissibility and value of the evidence. The Court, at this stage, only cautioned itself that it was looking at material which was impossible to authenticate or verify by cross-examination and therefore, clarified that it would have limited evidentiary value. The Court concluded that a decision on the exact birthplace of Lord Ram or the usage of the disputed premises over the years could not be made based on this evidence alone.

Suit No. 4 (Instituted by Sunni Central Waqf Board)

Facts

This suit was instituted by the Sunni Central Waqf Board on 18/12/1961 praying for a declaration that the disputed structure is a public mosque known by the name of ‘Babri Masjid’ and the graveyard surrounding the structure is a Muslim graveyard. The other relief sought was the possession of the disputed structure. The plaint averred that there has been a mosque standing at the disputed site for more than 400 years and Muslims have been in peaceful possession of it. It has been contended that a mosque does not require any specific form as per Islam and even after the structure was demolished in 1992, it continued to be a mosque. On the point of possession, the plaint states that even if it were to be assumed that there existed a Hindu temple on the site prior to the construction of Babri Masjid, Muslims still have perfect title to the property by adverse possession.

What the court held?

• Does the change of sovereign of a land affect the adjudication of disputes of title to the land?

The Court analyzed several decisions of the Privy Council to conclude that whenever property passes from one sovereign to another, by way of annexation, cession or otherwise, the courts of the new sovereign cannot adjudicate claims to that property as under the previous sovereign, unless the new sovereign has expressly or impliedly recognized the rights of those parties. Applying it to the facts, the Court noted that the evidence which had been, by way of religious texts, travelogues or even the ASI report, only could be used to establish the existence of a Hindu temple beneath the surface. However, nothing was shown to establish that the rights of Hindus to the temple were recognized by all the different rulers (sovereigns) that ever ruled that territory at any point in history. Therefore, the Court could not adjudicate upon a claim lost in history.

On the other hand, the Court then analyzed the conduct of the East India Company and the British Government (after the Queen’s Proclamation of 1858). It noted that after disputes broke out between Hindus and Muslims in 1856-1857, the sovereign did not take any actions to exclude either Hindus or Muslims from practicing their faith at the disputed property. It decided to respect both the faiths and erected a railing between the inner and outer courtyards to ensure peaceful worship. Over the period, the Hindus continued to stake their claim over the inner courtyard also. The Court then cited Articles 296 and 372(1) of the Constitution of India to note a line of continuity between the erstwhile British Government and present-day the Government of India, with respect to the laws in force and claims to property. The Court thus noted that the claims of Hindus and Muslims to the disputed property were recognized by the British Government and then passed on directly to the Government of India. As a result, the Court had the power to adjudicate upon these disputes.

• Was the principle of ‘waqf by user’ attracted to the present case?

A waqf is a dedication of property for a religious or charitable purpose recognized by Muslim law. It is an irrevocable dedication which, once completed, vests the dedicated property in Allah. Ordinarily, a waqf is recognized by a written instrument but where such instrument does not exist, a valid waqf can be inferred from the facts of a given case or from the conduct of parties involved. Such a waqf is called a ‘waqf by user’. In this case, it was argued by the Sunni Board that a valid waqf existed by the long use of the disputed property by Muslims for worship. The Court noted that the threshold for validating a waqf by user is high given the radical and irreversible change in ownership that it causes. The claim of waqf by user of the Board was for the inner and outer courtyards. Regarding the outer courtyard, the Court observed that Hindus have always worshipped there at different places like Ram Chabutra and Seeta Rasoi. Plus, the permission granted to Hindus by the colonial government in 1877 to construct another gate for gaining access was evidence of heavy footfall of Hindu devotees. This established that Muslims did not have control or possession of the outer courtyard. The Court went on to observe that while the plaint stated that the mosque had been regularly used for worship since its construction, there was nothing mentioned about the nature or extent of such use. The Sunni Board had also admitted that there was no evidence of possession or use prior to 1856-1857. The Court remarked that the burden of proving waqf by user was especially high in this case because accepting such a plea would totally extinguish the rights of another religious community, Hindus. The Court concluded that such a high burden was not discharged in the present case and rejected the argument of ‘waqf by user’.

• Had the Sunni Board perfected their title to the disputed property by adverse possession?

A person may have title to a property, but it may be in the possession of another, who continues to possess the property without any specific instrument (such as a lease deed) giving him that right. If the titleholder knows of such possession and chooses to do nothing about it for a period, the other person will eventually get the better title to the property by way of ‘adverse possession’. The Board had advanced the argument of adverse possession to establish its title to property in the event the Court holds that there was a Hindu temple existing before Babri Masjid was constructed. A plea of adverse possession acknowledges another person’s title to a property but contends that such a title has been nullified to due to the pleader’s uninterrupted and peaceful possession of that property for a long time. For such a plea to succeed, it not only has to be shown that the titleholder had knowledge of another person possessing his property but also the titleholder made no efforts to take it back and slept over his rights. The Board had made a plea of adverse possession of the entire premises. The Court pointed out that there was no question of the outer courtyard being possessed by Muslims, as the Hindus had openly possessed and worshipped in it. Most importantly, the Court stated that even if Muslims were in possession of the inner courtyard, it is impossible to call it peaceful, open and continuous owing to the fact that the Hindus always continued to stake their claim to the inner courtyard. In spite a wall being erected between the two courtyards in 1856, there were many instances of Hindus entering the inner courtyard to place idols or offer worship and this frequently led to communal violence, most notably in 1934 and 1992. Based on the pleadings and evidence, the Court concluded that the ingredients of adverse possession were not proved and thus, the burden remained undischarged. The plea of adverse possession, thus, failed.

• Was the doctrine of ‘lost grant’ applicable to the present case?

The doctrine of lost grant supplies a rule of evidence which is, in fact, to be applied in the absence of evidence. Whenever a party alleges that it is the owner of a property by virtue of a grant and the written instrument of grant is lost, upon proving long and continuous possession, a legal presumption of that party’s title to that property may be made. The Court noted that no specific pleading had been made to support the application of the doctrine of lost grant to the case. In addition, the Court pointed out a flaw in the plaintiff’s case, where a plea of applying the doctrine of lost grant was made in the course of oral arguments despite the plea of adverse possession having already been made in the written submissions. This, the Court said, was detrimental to the plaintiff because a plea of adverse possession effectively acknowledges that the title to the property vests in a person other than the alleged grantee and nullifies the effect of a plea of lost grant. Thus, this argument of the Sunni Board was also rejected.

Correctness of the Decision of the Allahabad High Court

At several parts in the entire 1045-page judgment, the Supreme Court has recorded different observations made by the Full Bench of the High Court while deciding the dispute in 2010. It has agreed or disagreed, to differing lengths, with all these observations. It is not necessary to list all the observations of the High Court on which the Supreme Court has commented. However, regarding the ratio decidendi (operative part) of the judgment, the Supreme Court has made the following observations.

While deciding the suits that were filed by various disputing parties, the Allahabad High Court had directed a three-way partition of the disputed property, with 1/3^rd share going to Nirmohi Akhara, Bhagwan Shri Ram Virajman and Sunni Central Waqf Board each.

The Supreme Court noted that the aforesaid order of the High Court was flawed. First, none of the suits in the present factual matrix was a suit for partition. One of the suits was for enforcing a religious right (Suit No. 1 by Gopal Singh Visharad), one was for asserting shebaiti rights, i.e., the right of management and charge of the temple (Suit No. 3 by Nirmohi Akhara), one was for declaratory relief (Suit No. 4 by Sunni Central Waqf Board) and finally, one was for declaratory relief and injunction (Suit No. 5 by Bhagwan Shri Ram Virajman). Particularly in Suits No. 4 and 5, the High Court was called upon to decide the title to the disputed property. The High Court ignored settled principles of law and granted a relief that was not prayed for in any of the suits. This was a serious error in the judgment.

Another flaw which was present in the High Court’s decision was to grant a share in the disputed property to Nirmohi Akhara and Sunni Central Waqf Board when the High Court had held both their suits to be barred by limitation. The effects of such an order would be far- reaching, where, in any future legal proceedings in any matter, a party that has approached the court later than the time permitted by law, not only gets away with it but also is granted relief by the court. Such a reasoning was not acceptable to the Supreme Court.

Decision of the Supreme Court

The Supreme Court held that after considering all the evidence to decide the issue of title to the property, on a balance of probabilities, the scales tilt in the favour of Hindu parties over the Muslim parties. This was because while the Hindus had established their long and uninterrupted possession of the outer courtyard, the Muslims had failed to establish their possession of the inner courtyard. At the same time, the Court acknowledged that the acts of causing damage to the mosque in 1934 and destroying the whole structure in 1992 were serious violations of the rule of law and if this factor was not considered, injustice would be caused to the Muslims.

Decision in Suit No. 5: Based on the better standing which the Hindu parties had on the issue of possession, the Court directed the Central Government to exercise its powers under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya Act, 1993 to create a trust or any other body to whom the possession of the entire disputed property will be handed. The Central Government was also directed to frame a scheme which would contain, inter alia, the details of the board of trustees, management of the trust property including the measures for construction of a temple and all other incidental matters. This entire process was to be completed in 3 months from the date of the judgment.

Decision in Suit No. 4: With the view of preventing injustice being caused to the Muslim parties, the Court, invoking its power to do complete justice under Article 142 of the Constitution of India, also directed the Central Government and the Uttar Pradesh State Government to work in consultation with each other and allot a land admeasuring 5 acres within the city of Ayodhya to Sunni Central Waqf Board. This was directed to be done simultaneously with the handing over of the disputed property to Bhagwan Shri Ram Virajman.

Decision in Suit No. 3: The Court held that the suit was barred by limitation and dismissed it. However, it acknowledged the historical presence of Nirmohi Akhara at the disputed site as devotees of Lord Ram and thus, directed that while the Central Government forms a scheme as aforesaid, it will also grant an appropriate role in the management to Nirmohi Akhara.

Decision in Suit No. 1: The Court affirmed the right of Rajendra Singh Visharad to worship at the disputed property, subject to any restrictions imposed by authorities for the maintenance of peace.

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