Ayodhya – Judgement

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos 10866-10867 of 2010
M Siddiq (D) Thr Lrs …Appellants

Versus
Mahant Suresh Das & Ors …Respondents
WITH
Civil Appeal Nos 4768-4771/2011
WITH
Civil Appeal No 2636/2011
WITH
Civil Appeal No 821/2011
WITH
Civil Appeal No 4739/2011
WITH
Civil Appeal Nos 4905-4908/2011
2
WITH
Civil Appeal No 2215/2011
WITH
Civil Appeal No 4740/2011
WITH
Civil Appeal No 2894/2011
WITH
Civil Appeal No 6965/2011
WITH
Civil Appeal No 4192/2011
WITH
Civil Appeal No 5498/2011
WITH
Civil Appeal No 7226/2011
AND WITH
Civil Appeal No 8096/2011
3
J U D G M E N T
INDEX
A. Introduction
B. An overview of the suits
C. Evidence: a bird‘s eye view
D. The aftermath of 1856-7
D.1 Response to the wall
D.2 Period between 1934-1949
E. Proceedings under Section 145
F. Points for determination
G. The three inscriptions
H. Judicial review and characteristics of a mosque in Islamic law
I. Places of Worship Act
J. Juristic personality
J.1 Development of the law
J.2 Idols and juristic personality
J.3 Juristic personality of the first plaintiff
J.4 Juristic personality of the second plaintiff
K. Analysis of the suits
L. Suit 1: Gopal Singh Visharad
L.1 Pleadings
L.2 Issues and findings of the High Court
L.3 Analysis
M. Suit 3: Nirmohi Akhara
M.1 Pleadings
4
M.2 Conflict between Suit 3 and Suit 5
M.3 Issues and findings of the High Court
M.4 Limitation in Suit 3
M.5 Oral testimony of the Nirmohi witnesses
M.6 Nirmohi Akhara‘s claim to possession of the inner courtyard
Documentary evidence in regard to the mosque (1934-1949)
N. Suit 5: The deities
N.1 Array of parties
N.2 No contest by the State of Uttar Pradesh
N.3 Pleadings
N.4 Written statements
N.5 Issues and findings of the High Court
N.6 Shebaits: an exclusive right to sue?
A suit by a worshipper or a person interested
Nirmohi Akhara and shebaiti rights
N.7 Limitation in Suit 5
The argument of perpetual minority
N.8 The Suit of 1885 and Res Judicata
N.9 Archaeological report
N.10 Nature and use of the disputed structure: oral evidence
N.11 Photographs of the disputed structure
N.12 Vishnu Hari inscriptions
N.13 The polestar of faith and belief
Travelogues, gazetteers and books
Evidentiary value of travelogues, gazetteers and books
N.14 Historian‘s report
O. Suit 4: Sunni Central Waqf Board
O.1 Analysis of the plaint
O.2 Written statements
5
O.3 Issues and findings of the High Court
O.4 Limitation in Suit 4
O.5 Applicable legal regime and Justice, Equity and Good Conscience
O.6 Grants and recognition
O.7 Disputes and cases affirming possession
Impact of Suit of 1885
Incidents between 1934 and 1950
O.8 Proof of namaz
O.9 Placing of idols in 1949
O.10 Nazul land
O.11 Waqf by user
O.12 Possession and adverse possession
O.13 Doctrine of the lost grant
O.14 The smokescreen of the disputed premises – the wall of 1858
O.15 Analysis of evidence in Suit 4
O.16 The Muslim claim to possessory title
P. Analysis on title
P.1 Marshalling the evidence in Suit 4 and Suit 5
P.2 Conclusion on title
Q. Reliefs and directions
PART A
6
A. Introduction

  1. These first appeals centre around a dispute between two religious
    communities both of whom claim ownership over a piece of land admeasuring
    1500 square yards in the town of Ayodhya. The disputed property is of immense
    significance to Hindus and Muslims. The Hindu community claims it as the birthplace of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claims
    it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur.
    The lands of our country have witnessed invasions and dissensions. Yet they
    have assimilated into the idea of India everyone who sought their providence,
    whether they came as merchants, travellers or as conquerors. The history and
    culture of this country have been home to quests for truth, through the material,
    the political, and the spiritual. This Court is called upon to fulfil its adjudicatory
    function where it is claimed that two quests for the truth impinge on the freedoms
    of the other or violate the rule of law.
  2. This Court is tasked with the resolution of a dispute whose origins are as
    old as the idea of India itself. The events associated with the dispute have
    spanned the Mughal empire, colonial rule and the present constitutional regime.
    Constitutional values form the cornerstone of this nation and have facilitated the
    lawful resolution of the present title dispute through forty-one days of hearings
    before this Court. The dispute in these appeals arises out of four regular suits
    which were instituted between 1950 and 1989. Before the Allahabad High Court,
    voluminous evidence, both oral and documentary was led, resulting in three
    judgements running the course of 4304 pages. This judgement is placed in
    PART A
    7
    challenge in the appeals.
  3. The disputed land forms part of the village of Kot Rama Chandra or, as it is
    otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar
    in the District of Faizabad. An old structure of a mosque existed at the site until 6
    December 1992. The site has religious significance for the devotees of Lord
    Ram, who believe that Lord Ram was born at the disputed site. For this reason,
    the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan
    (i.e. birth-place of Lord Ram). The Hindus assert that there existed at the
    disputed site an ancient temple dedicated to Lord Ram, which was demolished
    upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the
    other hand, the Muslims contended that the mosque was built by or at the behest
    of Babur on vacant land. Though the significance of the site for the Hindus is not
    denied, it is the case of the Muslims that there exists no proprietary claim of the
    Hindus over the disputed property.
  4. A suit was instituted in 1950 before the Civil Judge at Faizabad by a Hindu
    worshipper, Gopal Singh Visharad seeking a declaration that according to his
    religion and custom, he is entitled to offer prayers at the main Janmabhumi
    temple near the idols.
  5. The Nirmohi Akhara represents a religious sect amongst the Hindus,
    known as the Ramanandi Bairagis. The Nirmohis claim that they were, at all
    material times, in charge and management of the structure at the disputed site
    which according to them was a ‗temple‘ until 29 December 1949, on which date
    an attachment was ordered under Section 145 of the Code of Criminal Procedure
    PART A
    8
  6. In effect, they claim as shebaits in service of the deity, managing its affairs
    and receiving offerings from devotees. Theirs is a Suit of 1959 for the
    management and charge of ‗the temple‘.
  7. The Uttar Pradesh Sunni Central Board of Waqf (―Sunni Central Waqf
    Board‖) and other Muslim residents of Ayodhya instituted a suit in 1961 for a
    declaration of their title to the disputed site. According to them, the old structure
    was a mosque which was built on the instructions of Emperor Babur by Mir Baqi
    who was the Commander of his forces, following the conquest of the subcontinent by the Mughal Emperor in the third decade of the sixteenth century.
    The Muslims deny that the mosque was constructed on the site of a destroyed
    temple. According to them, prayers were uninterruptedly offered in the mosque
    until 23 December 1949 when a group of Hindus desecrated it by placing idols
    within the precincts of its three-domed structure with the intent to destroy,
    damage and defile the Islamic religious structure. The Sunni Central Waqf Board
    claims a declaration of title and, if found necessary, a decree for possession.
  8. A suit was instituted in 1989 by a next friend on behalf of the deity
    (―Bhagwan Shri Ram Virajman‖) and the birth-place of Lord Ram (―Asthan Shri
    Ram Janmabhumi‖). The suit is founded on the claim that the law recognises
    both the idol and the birth-place as juridical entities. The claim is that the place of
    birth is sanctified as an object of worship, personifying the divine spirit of Lord
    Ram. Hence, like the idol (which the law recognises as a juridical entity), the
    place of birth of the deity is claimed to be a legal person, or as it is described in
    legal parlance, to possess a juridical status. A declaration of title to the disputed
    PART A
    9
    site coupled with injunctive relief has been sought.
  9. These suits, together with a separate suit by Hindu worshippers were
    transferred by the Allahabad High Court to itself for trial from the civil court at
    Faizabad. The High Court rendered a judgment in original proceedings arising
    out of the four suits and these appeals arise out of the decision of a Full Bench
    dated 30 September 2010. The High Court held that the suits filed by the Sunni
    Central Waqf Board and by Nirmohi Akhara were barred by limitation. Despite
    having held that those two suits were barred by time, the High Court held in a
    split 2:1 verdict that the Hindu and Muslim parties were joint holders of the
    disputed premises. Each of them was held entitled to one third of the disputed
    property. The Nirmohi Akhara was granted the remaining one third. A preliminary
    decree to that effect was passed in the suit brought by the idol and the birth-place
    of Lord Ram through the next friend.
  10. Before deciding the appeals, it is necessary to set out the significant
    events which have taken place in the chequered history of this litigation, which
    spans nearly seven decades.
  11. The disputed site has been a flash point of continued conflagration over
    decades. In 1856-57, riots broke out between Hindus and Muslims in the vicinity
    of the structure. The colonial government attempted to raise a buffer between the
    two communities to maintain law and order by set ting up a grill-brick wall having
    a height of six or seven feet. This would divide the premises into two parts: the
    inner portion which would be used by the Muslim community and the outer
    portion or courtyard, which would be used by the Hindu community. The outer
    PART A
    10
    courtyard has several structures of religious significance for the Hindus, such as
    the Sita Rasoi and a platform called the Ramchabutra. In 1877, another door was
    opened on the northern side of the outer courtyard by the colonial government,
    which was given to the Hindus to control and manage. The bifurcation, as the
    record shows, did not resolve the conflict and there were numerous attempts by
    one or other of the parties to exclude the other.
  12. In January 1885, Mahant Raghubar Das, claiming to be the Mahant of
    Ram Janmasthan instituted a suit1
    (―Suit of 1885‖) before the Sub-Judge,
    Faizabad. The relief which he sought was permission to build a temple on the
    Ramchabutra situated in the outer courtyard, measuring seventeen feet by
    twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885,
    the trial judge dismissed the suit, `noting that there was a possibility of riots
    breaking out between the two communities due to the proposed construction of a
    temple. The trial judge, however, observed that there could be no question or
    doubt regarding the possession and ownership of the Hindus over the Chabutra.
    On 18 March 1886, the District Judge dismissed the appeal against the judgment
    of the Trial Court2
    but struck off the observations relating to the ownership of
    Hindus of the Chabutra contained in the judgment of the Trial Court. On 1
    November 1886, the Judicial Commissioner of Oudh dismissed the second
    appeal3
    , noting that the Mahant had failed to present evidence of title to establish
    ownership of the Chabutra. In 1934, there was yet another conflagration between
    the two communities. The domed structure of the mosque was damaged during

1
(OS No. 61/280 of 1885)
2 Civil Appeal No. 27/1885
3 No 27 of 1886
PART A
11
the incident and was subsequently repaired at the cost of the colonial
government.

  1. The controversy entered a new phase on the night intervening 22 and 23
    December 1949, when the mosque was desecrated by a group of about fifty or
    sixty people who broke open its locks and placed idols of Lord Ram under the
    central dome. A First Information Report (―FIR‖) was registered in relation to the
    incident. On 29 December 1949, the Additional City Magistrate, Faizabad-cumAyodhya issued a preliminary order under Section 145 of the Code of Criminal
    Procedure 18984
    (―CrPC 1898‖), treating the situation to be of an emergent
    nature. Simultaneously, an attachment order was issued and Priya Datt Ram, the
    Chairman of the Municipal Board of Faizabad was appointed as the receiver of
    the inner courtyard. On 5 January 1950, the receiver took charge of the inner
    courtyard and prepared an inventory of the attached properties. The Magistrate
    passed a preliminary order upon recording a satisfaction that the dispute between
    the two communities over their claims to worship and proprietorship over the
    structure would likely lead to a breach of peace. The stakeholders were allowed
    to file their written statements. Under the Magistrate‘s order, only two or three
    pujaris were permitted to go inside the place where the idols were kept, to
    perform religious ceremonies like bhog and puja. Members of the general public
    were restricted from entering and were only allowed darshan from beyond the
    grill-brick wall.

4
―Section 145. Procedure where dispute concerning land, etc, is likely to cause breach of peace
(1) Whenever a District Magistrate, or an Executive Magistrate specially empowered by the Government in this
behalf is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace
exists concerning any land or water of the boundaries thereof, within the local limits of his jurisdiction, he shall
make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such
dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in
written statements of their respective claims as respects the fact of actual possession of the subject of dispute…‖
PART A
12
The institution of the suits

  1. On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal
    Singh Visharad5
    , (―Suit 1‖) before the Civil Judge at Faizabad, alleging that he
    was being prevented by officials of the government from entering the inner
    courtyard of the disputed site to offer worship. A declaration was sought to allow
    the plaintiff to offer prayers in accordance with the rites and tenets of his religion
    (―Sanatan Dharm‖) at the ―main Janmabhumi‖, near the idols, within the inner
    courtyard, without hindrance. On the same date, an ad-interim injunction was
    issued in the suit. On 19 January 1950, the injunction was modified to prevent the
    idols from being removed from the disputed site and from causing interference in
    the performance of puja. On 3 March 1951, the Trial Court confirmed the adinterim order, as modified. On 26 May 1955, the appeal6
    against the interim order
    was dismissed by the High Court of Allahabad.
  2. On 5 December 1950, another suit was instituted by Paramhans
    Ramchandra Das7
    (―Suit 2‖) before the Civil Judge, Faizabad seeking reliefs
    similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September
    1990.
  3. On 1 April 1950, a Court Commissioner was appointed in Suit 1 to prepare
    a map of the disputed premises. On 25 June 1950, the Commissioner submitted
    a report, together with two site plans of the disputed premises which were
    numbered as Plan nos 1 and 2 to the Trial Court. Both the report and maps

5 Regular Suit No 2 of 1950. Subsequently renumbered as Other Original Suit (OOS) No 1 of 1989.
6
FAFO No 154 of 1951
7 Regular Suit no 25 of 1950 (subsequently renumbered as Other Original Suit (OOS) No 2 of 1989)
PART A
13
indicate the position at the site and are reproduced below:
Report of the Commissioner
―REPORT
Sir,
I was appointed a commissioner in the above case
to prepare a site plan of the locality and building in suit on
scale. Accordingly, in compliance with the order of the
court, I visited the locality on 16.4.50 and again on
30.4.50 after giving due notice to the counsel of the
parties, and made necessary measurements on the spot.
On the first day of my visit none of the parties were
present, but on the second day defendant no. 1 was
present with Shri Azimullah Khan and Shri Habib Ahmad
Khan counsel. At about noon defendant no. 1 presented
an application, attached herewith, when the measurement
work had already finished.
Plan No. I represents the building in suit shown by
the figure ABCDEF on a larger scale than Plan no.II,
which represents the building with its locality.
A perusal of Plan No.I would show that the
building has got two gates, one on the east and the other
on the north, known as ―Hanumatdwar‖ and ―Singhdwar‖
respectively. The ―Hanumatdwar‖ is the main entrance
gate to the building. At this gate there is a stone slab fixed
to the ground containing the inscription ―1-Shri Janma
Bhumi nitya yatra,‖ and a big coloured picture of Shri
Hanumanji is placed at the top of the gate. The arch of
this entrance gate, 10‘ in height, rests on two black
kasauti stone pillars, each 4‘ high, marked a and b,
containing images of ―Jai and Vijai‖ respectively engraved
thereon. To the south of this gate on the outer wall there
is engraved a stone image, 5‘ long, known as ―Varah
Bhagwan.‖
The northern gate, known as ―Singhdwar,‖ 19‘6‖ in height,
has got at its top images of Garura in the middle and two
lions one on each side.
On entering the main gate there is pucca floor on the
eastern and northern side of the inner building, marked by
letters GHJKL DGB on the north of the eastern floor there
is a neem tree, and to the south of it there is the bhandara
(kitchen). Further south there is a raised pucca platform,
17‘ x 21‘ and 4‘ high, known as ―Ram Chabutra,‖ on which
stands a small temple having idols of Ram and Janki
installed therein. At the south-eastern corner E there is a
PART A
14
joint neem-pipal tree, surrounded by a semi-circular pucca
platform, on which are installed marble idols of
Panchmukhi Mahadev, Parbati, Ganesh and Nandi.
On the northern floor there is a pucca platform, 8‘ x 9‘,
called ―Sita Rasoi.‖ On this platform there is a pucca
chulha with chauka and belna, made of marble, affixed by
its side. To the east of the chulha there are four pairs of
marble foot prints of Ram, Lakshman, Bharat &
Shatrunghna.
The pucca courtyard in front of the inner (main) building is
enclosed by walls NHJK intercepted by iron bars with two
iron bar gates at O and P as shown in the Plan no.I. At the
southern end of this Courtyard there are 14 stairs leading
to the roof of the building, and to the south of the stairs
there is a raised pucca platform 2‘ high, having a urinal
marked U at its south-west corner. There are three arched
gates, X,Y and Z leading to the main building, which is
divided into three portions, having arches at Q and R.
There is a chhajja (projected roof) above the arch Y. 31.
The three arches, Y, Q and R are supported on 12 black
kasauti stone pillars, each 6‘ high, marked with letters c to
n in Plan no. I. The pillars e to m have carvings of kamal
flowers thereon. The pillar contains the image of Shankar
Bhagwan in Tandava nritya form and another disfigured
image engraved thereon. The pillar J contained the
carved image of Hanumanji. The pillar N has got the
image of Lord Krishna engraved thereon other pillars have
also got carvings of images which are effaced.
In the central portion of the building at the north-western
corner, there is a pucca platform with two stairs, on which
is installed the idol of Bal Ram (infant Ram).
At the top of the three portions of the building there are
three round domes, as shown separately in Plan no.I,
each on an octagonal base. There are no towers, nor is
there any ghusalkhana or well in the building.
Around the building there is a pucca path known as
parikrama, as shown in yellow in Plan Nos.I & II. On the
west of the parikrama, the land is about 20‘ low, while the
pucca road on the northern side is about 18‘ low.
Other structures found on the locality have been shown in
Plan no.II at their proper places.
The land shown by letters S and T is covered by huts and
dhunis of sadhus. Adjacent to and south of the land
PART A
15
shown by letter T, there is a raised platform, bounded by
walls, 4‘ 6‖ high, with a passage towards west, known as
―shankar chabutra.‖
The pucca well, known as ―Sita koop‖ has got a tin shed
over it, and a stone slab is fixed close to it with the
inscription ―3-Sita koop‖. To the south – west of this well
there is another stone slab fixed into the ground with the
inscription ―4-Sumitra Bhawan‖. On the raised platform of
Sumitra Bhawan there is a stone slab fixed to the ground,
marked, carved with the image of Shesh nag.
The names of the various samadhis and other structures
as noted in Plan No. II were given by sadhus and others
present on the spot.
Plans nos.I and II, which form part of this report, two
notices given to parties counsel and the application
presented by defendant no.1 are attached herewith.
I have the honour to be,
Sir,
Your most obedient servant,
Shiva Shankar Lal,
Faizabad.
Pleader
25.5.50 Commissioner.‖
PART A
16
Site map (Plan I)
PART A
17
Site map (Plan II)
PART A
18

  1. On 17 December 1959, Nirmohi Akhara instituted a suit8
    through its
    Mahant (―Suit 3‖) before the Civil Judge at Faizabad claiming that its ―absolute
    right‖ of managing the affairs of the Janmasthan and the temple had been
    impacted by the Magistrate‘s order of attachment and by the appointment of a
    receiver under Section 145. A decree was sought to hand over the management
    and charge of the temple to the plaintiff in Suit 3.
  2. On 18 December 1961, the Sunni Central Waqf Board and nine Muslim
    residents of Ayodhya filed a suit9
    (―Suit 4‖) before the Civil Judge at Faizabad
    seeking a declaration that the entire disputed site of the Babri Masjid was a public
    mosque and for the delivery of possession upon removal of the idols.
  3. On 6 January 1964, the trial of Suits 1, 3 and 4 was consolidated and Suit
    4 was made the leading case.
  4. On 25 January 1986, an application was filed by one Umesh Chandra
    before the Trial Court for breaking open the locks placed on the grill-brick wall
    and for allowing the public to perform darshan within the inner courtyard. On 1
    February 1986, the District Judge issued directions to open the locks and to
    provide access to devotees for darshan inside the structure. In a Writ Petition10
    filed before the High Court challenging the above order, an interim order was
    passed on 3 February 1986 directing that until further orders, the nature of the
    property as it existed shall not be altered.

8 Regular Suit No 26 of 1959 (subsequently renumbered as OOS No. 3 of 1989)
9 Regular Suit No. 12 of 1961 (subsequently renumbered as OOS No. 4 of 1989)
10Civil Misc. Writ No. 746 of 1986
PART A
19

  1. On 1 July 1989, a Suit11 (―Suit 5‖) was brought before the Civil Judge,
    Faizabad by the deity (―Bhagwan Shri Ram Virajman‖) and the birth-place
    (―Asthan Shri Ram Janam Bhumi, Ayodhya‖), through a next friend for a
    declaration of title to the disputed premises and to restrain the defendants from
    interfering with or raising any objection to the construction of a temple. Suit 5 was
    tried with the other suits.
  2. On 10 July 1989, all suits were transferred to the High Court of Judicature
    at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief
    Justice of the High Court for the trial of the suits. On an application by the State
    of Uttar Pradesh, the High Court passed an interim order on 14 August 1989,
    directing the parties to maintain status quo with respect to the property in dispute.
  3. During the pendency of the proceedings, the State of Uttar Pradesh
    acquired an area of 2.77 acres comprising of the disputed premises and certain
    adjoining areas. This was effected by notifications dated 7 October 1991 and 10
    October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894
    (―Land Acquisition Act‖). The acquisition was for ‗development and providing
    amenities to pilgrims in Ayodhya‘. A Writ Petition was filed before the High Court
    challenging the acquisition. By a judgment and order dated 11 December 1992,
    the acquisition was set aside.
  4. A substantial change took place in the position at the site on 6 December
  5. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A
    makeshift structure of a temple was constructed at the place under the erstwhile

11 Regular Suit No. 236 of 1989 (subsequently renumbered as OOS No. 5 of 1989)
PART A
20
central dome. The idols were placed there.
Acquisition by the Central Government and Ismail Faruqui‘s case

  1. The Central Government acquired an area of about 68 acres, including the
    premises in dispute, by a legislation called the Acquisition of Certain Area at
    Ayodhya Act 1993 (―Ayodhya Acquisition Act 1993‖). Sections 3 and 4
    envisaged the abatement of all suits which were pending before the High Court.
    Simultaneously, the President of India made a reference to this Court under
    Article 143 of the Constitution. The reference was on ―(w)hether a Hindu temple
    or any Hindu religious structure existed prior to the construction of the Ram
    Janam Bhoomi and Babari Masjid (including the premises of the inner and outer
    courtyards on such structure) in the area on which the structure stands…‖.
  2. Writ petitions were filed before the High Court of Allahabad and this Court
    challenging the validity of the Act of 1993. All the petitions and the reference by
    the President were heard together and decided by a judgment dated 24 October
  3. The decision of a Constitution Bench of this Court, titled Dr M Ismail
    Faruqui v Union of India12 held Section 4(3), which provided for the abatement
    of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be
    valid. The Constitution Bench declined to answer the Presidential reference and,
    as a result, all pending suits and proceedings in relation to the disputed premises
    stood revived. The Central Government was appointed as a statutory receiver for
    the maintenance of status quo and to hand over the disputed area in terms of the

12 (1994) 6 SCC 360
PART A
21
adjudication to be made in the suits. The conclusions arrived at by the
Constitution Bench are extracted below:
―96. … (1)(a) Sub-section (3) of Section 4 of the Act abates all
pending suits and legal proceedings without providing for an
alternative dispute resolution mechanism for resolution of the
disputes between the parties thereto. This is an extinction of
the judicial remedy for resolution of the dispute amounting to
negation of rule of law. Sub-section (3) of Section 4 of the Act
is, therefore, unconstitutional and invalid.
(1)(b) The remaining provisions of the Act do not suffer from
any invalidity on the construction made thereof by us. Subsection (3) of Section 4 of the Act is severable from the
remaining Act. Accordingly, the challenge to the constitutional
validity of the remaining Act, except for sub-section (3) of
Sec. 4, is rejected.
(2) Irrespective of the status of a mosque under the Muslim
law applicable in the Islamic countries, the status of a mosque
under the Mahomedan Law applicable in secular India is the
same and equal to that of any other place of worship of any
religion; and it does not enjoy any greater immunity from
acquisition in exercise of the sovereign or prerogative power
of the State, than that of the places of worship of the other
religions.
(3) The pending suits and other proceedings relating to the
disputed area within which the structure (including the
premises of the inner and outer courtyards of such structure),
commonly known as the Ram Janma Bhumi – Babri Masjid,
stood, stand revived for adjudication of the dispute therein,
together with the interim orders made, except to the extent
the interim orders stand modified by the provisions of Section
7 of the Act.
(4) The vesting of the said disputed area in the Central
Government by virtue of Section 3 of the Act is limited, as a
statutory receiver with the duty for its management and
administration according to Section 7 requiring maintenance
of status quo therein under sub-section (2) of Section 7 of the
Act. The duty of the Central Government as the statutory
receiver is to handover the disputed area in accordance with
Section 6 of the Act, in terms of the adjudication made in the
suits for implementation of the final decision therein. This is
the purpose for which the disputed area has been so
acquired.
PART A
22
(5) The power of the courts in making further interim orders in
the suits is limited to, and circumscribed by, the area outside
the ambit of Section 7 of the Act.
(6) The vesting of the adjacent area, other than the disputed
area, acquired by the Act in the Central Government by virtue
of Section 3 of the Act is absolute with the power of
management and administration thereof in accordance with
sub-section (1) of Section 7 of the Act, till its further vesting in
any authority or other body or trustees of any trust in
accordance with Section 6 of the Act. The further vesting of
the adjacent area, other than the disputed area, in
accordance with Sec. 6 of the Act has to be made at the time
and in the manner indicated, in view of the purpose of its
acquisition.
(7) The meaning of the word “vest” in Section 3 and Section 6
of the Act has to be so understood in the different contexts.
(8) Section 8 of the Act is meant for payment of compensation
to owners of the property vesting absolutely in the Central
Government, the title to which is not in dispute being in
excess of the disputed area which alone is the subject matter
of the revived suits. It does not apply to the disputed area,
title to which has to be adjudicated in the suits and in respect
of which the Central Government is merely the statutory
receiver as indicated, with the duty to restore it to the owner
in terms of the adjudication made in the suits.
(9) The challenge to acquisition of any part of the adjacent
area on the ground that it is unnecessary for achieving the
professed objective of settling the long standing dispute
cannot be examined at this stage. However, the area found to
be superfluous on the exact area needed for the purpose
being determined on adjudication of the dispute, must be
restored to the undisputed owners.
(10) Rejection of the challenge by the undisputed owners to
acquisition of some religious properties in the vicinity of the
disputed area, at this stage is with the liberty granted to them
to renew their challenge, if necessary at a later appropriate
stage, in cases of continued retention by Central Government
of their property in excess of the exact area determined to be
needed on adjudication of the dispute.
(11) Consequently, the Special Reference No. 1 of 1993
made by the President of India under Art. 143(1) of the
Constitution of India is superfluous and unnecessary and
does not require to be answered. For this reason, we very
respectfully decline to answer it and return the same.
PART A
23
(12) The questions relating to the constitutional validity of the
said Act and maintainability of the Special Reference are
decided in these terms.‖
The proceedings before the High Court

  1. The recording of oral evidence before the High Court commenced on 24
    July 1996. During the course of the hearings, the High Court issued directions on
    23 October 2002 to the Archaeological Survey of India (―ASI‖) to carry out a
    scientific investigation and have the disputed site surveyed by Ground
    Penetrating Technology or Geo-Radiology (―GPR‖). The GPR report dated 17
    February 2003 indicated a variety of ―anomalies‖ which could be associated with
    ―ancient and contemporaneous structures‖ such as pillars, foundations, wall slabs
    and flooring extending over a large portion of the disputed site. In order to
    facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to
    undertake the excavation of the disputed site. A fourteen-member team was
    constituted, and a site plan was prepared indicating the number of trenches to be
    laid out and excavated. On 22 August 2003, the ASI submitted its final report.
    The High Court heard objections to the report.
  2. Evidence, both oral and documentary, was recorded before the High
    Court. As one of the judges, Justice Sudhir Agarwal noted, the High Court had
    before it 533 exhibits and depositions of 87 witnesses traversing 13,990 pages.
    Besides this, counsel relied on over a thousand reference books in Sanskrit,
    Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as
    diverse as history, culture, archaeology and religion. The High Court ensured that
    PART A
    24
    the innumerable archaeological artefacts were kept in the record room. It
    received dozens of CDs and other records which the three judges of the High
    Court have marshalled.
    The decision of the High Court
  3. On 30 September 2010, the Full Bench of the High Court comprising of
    Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the
    judgment, which is in appeal. Justice S U Khan and Justice Sudhir Agarwal held
    ―all the three sets of parties‖ – Muslims, Hindus and Nirmohi Akhara – as joint
    holders of the disputed premises and allotted a one third share to each of them in
    a preliminary decree. Justice S U Khan held thus:
    ―Accordingly, all the three sets of parties, i.e. Muslims, Hindus
    and Nirmohi Akhara are declared joint title holders of the
    property/ premises in dispute as described by letters A B C D
    E F in the map Plan-I prepared by Sri Shiv Shanker Lal,
    Pleader/ Commissioner appointed by Court in Suit No.1 to the
    extent of one third share each for using and managing the
    same for worshipping. A preliminary decree to this effect is
    passed.
    However, it is further declared that the portion below the
    central dome where at present the idol is kept in makeshift
    temple will be allotted to Hindus in final decree.
    It is further directed that Nirmohi Akhara will be allotted share
    including that part which is shown by the words Ram
    Chabutra and Sita Rasoi in the said map.
    It is further clarified that even though all the three parties are
    declared to have one third share each, however if while
    allotting exact portions some minor adjustment in the share is
    to be made then the same will be made and the adversely
    affected party may be compensated by allotting some portion
    of the adjoining land which has been acquired by the Central
    Government.
    The parties are at liberty to file their suggestions for actual
    partition by metes and bounds within three months.
    PART A
    25
    List immediately after filing of any suggestion/ application for
    preparation of final decree after obtaining necessary
    instructions from Hon’ble the Chief Justice.
    Status quo as prevailing till date pursuant to Supreme Court
    judgment of Ismail Farooqui (1994(6) Sec 360) in all its
    minutest details shall be maintained for a period of three
    months unless this order is modified or vacated earlier.‖
    Justice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and 4 were
    dismissed as being barred by limitation. The learned judge concluded with the
    following directions:
    ―4566…
    (i) It is declared that the area covered by the central dome of
    the three domed structure, i.e., the disputed structure being
    the deity of Bhagwan Ram Janamsthan and place of birth of
    Lord Rama as per faith and belief of the Hindus, belong to
    plaintiffs (Suit-5) and shall not be obstructed or interfered in
    any manner by the defendants. This area is shown by letters
    AA BB CC DD in Appendix 7 to this judgment.
    (ii) The area within the inner courtyard denoted by letters B C
    D L K J H G in Appendix 7 (excluding (i) above) belong to
    members of both the communities, i.e., Hindus (here
    plaintiffs, Suit-5) and Muslims since it was being used by both
    since decades and centuries. It is, however, made clear that
    for the purpose of share of plaintiffs, Suit-5 under this
    direction the area which is covered by (i) above shall also be
    included.
    (iii) The area covered by the structures, namely, Ram
    Chabutra, (EE FF GG HH in Appendix 7) Sita Rasoi (MM NN
    OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
    7) in the outer courtyard is declared in the share of Nirmohi
    Akhara (defendant no. 3) and they shall be entitled to
    possession thereof in the absence of any person with better
    title.
    (iv) The open area within the outer courtyard (A G H J K L E F
    in Appendix 7) (except that covered by (iii) above) shall be
    shared by Nirmohi Akhara (defendant no. 3) and plaintiffs
    (Suit-5) since it has been generally used by the Hindu people
    for worship at both places.
    PART A
    26
    (iv-a) It is however made clear that the share of muslim
    parties shall not be less than one third (1/3) of the total area
    of the premises and if necessary it may be given some area
    of outer courtyard. It is also made clear that while making
    partition by metes and bounds, if some minor adjustments are
    to be made with respect to the share of different parties, the
    affected party may be compensated by allotting the requisite
    land from the area which is under acquisition of the
    Government of India.
    (v) The land which is available with the Government of India
    acquired under Ayodhya Act 1993 for providing it to the
    parties who are successful in the suit for better enjoyment of
    the property shall be made available to the above concerned
    parties in such manner so that all the three parties may utilise
    the area to which they are entitled to, by having separate
    entry for egress and ingress of the people without disturbing
    each others rights. For this purpose the concerned parties
    may approach the Government of India who shall act in
    accordance with the above directions and also as contained
    in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).
    (vi) A decree, partly preliminary and partly final, to the effect
    as said above (i to v) is passed. Suit-5 is decreed in part to
    the above extent. The parties are at liberty to file their
    suggestions for actual partition of the property in dispute in
    the manner as directed above by metes and bounds by
    submitting an application to this effect to the Officer on
    Special Duty, Ayodhya Bench at Lucknow or the Registrar,
    Lucknow Bench, Lucknow, as the case may be.
    (vii) For a period of three months or unless directed
    otherwise, whichever is earlier, the parties shall maintain
    status quo as on today in respect of property in dispute.‖
    Justice D V Sharma decreed Suit 5 in its entirety. Suits 3 and 4 were dismissed
    as being barred by limitation. Justice D V Sharma concluded:
    ―Plaintiff‘s suit is decreed but with easy costs. It is hereby
    declared that the entire premises of Sri Ram Janm Bhumi at
    Ayodhya as described and delineated in annexure Nos. 1 and
    2 of the plaint belong to the plaintiff Nos. 1 and 2, the deities.
    The defendants are permanently restrained from interfering
    with, or raising any objection to, or placing any obstruction in
    the construction of the temple at Ram Janm Bhumi Ayodhya
    at the site, referred to in the plaint.‖
    PART A
    27
    The parties preferred multiple Civil Appeals and Special Leave Petitions before
    this Court against the judgment of the High Court.
    Proceedings before this Court
  4. On 9 May 2011, a two judge Bench of this Court admitted several appeals
    and stayed the operation of the judgment and decree of the Allahabad High
    Court. During the pendency of the appeals, parties were directed to maintain
    status quo with respect to the disputed premises in accordance with the
    directions issued in Ismail Faruqui. The Registry of this Court was directed to
    provide parties electronic copies of the digitised records.
  5. On 10 September 2013, 24 February 2014, 31 October 2015 and 11
    August 2017, this Court issued directions for summoning the digital record of the
    evidence and pleadings from the Allahabad High Court and for furnishing
    translated copies to the parties. On 10 August 2015, a three judge Bench of this
    Court allowed the Commissioner, Faizabad Division to replace the old and worn
    out tarpaulin sheets over the makeshift structure under which the idols were
    placed with new sheets of the same size and quality.
  6. On 5 December 2017, a three judge Bench of this Court rejected the plea
    that the appeals against the impugned judgement be referred to a larger Bench in
    view of certain observations of the Constitution Bench in Ismail Faruqui. On 14
    March 2018, a three judge Bench heard arguments on whether the judgment in
    Ismail Faruqui required reconsideration. On 27 September 2018, the three judge
    Bench of this Court by a majority of 2:1 declined to refer the judgment in Ismail
    PART A
    28
    Faruqui for reconsideration and listed the appeals against the impugned
    judgement for hearing.
  7. By an administrative order dated 8 January 2019 made pursuant to the
    provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief
    Justice of India constituted a five judge Bench to hear the appeals. On 10
    January 2019, the Registry was directed to inspect the records and if required,
    engage official translators. On 26 February 2019, this Court referred the parties
    to a Court appointed and monitored mediation to explore the possibility of
    bringing about a permanent solution to the issues raised in the appeals. On 8
    March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed
    Ibrahim Kalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and (iii)
    Mr Sriram Panchu, Senior Advocate was constituted. Time granted to the
    mediators to complete the mediation proceedings was extended on 10 May 2019.
    Since no settlement had been reached, on 2 August 2019, the hearing of the
    appeals was directed to commence from 6 August 2019. During the course of
    hearing, a report was submitted by the panel of mediators that some of the
    parties desired to settle the dispute. This Court by its order dated 18 September
    2019 observed that while the hearings will proceed, if any parties desired to settle
    the dispute, it was open for them to move the mediators and place a settlement, if
    it was arrived at, before this Court. Final arguments were concluded in the batch
    of appeals on 16 October 2019. On the same day, the mediation panel submitted
    a report titled ―Final Report of the Committee‖ stating that a settlement had been
    arrived at by some of the parties to the present dispute. The settlement was
    PART B
    29
    signed by Mr Zufar Ahmad Faruqi, Chairman of the Sunni Central Waqf Board.
    Though under the settlement, the Sunni Central Waqf Board agreed to relinquish
    all its rights, interests and claims over the disputed land, this was subject to the
    fulfilment of certain conditions stipulated. The settlement agreement received by
    this Court from the mediation panel has not been agreed to or signed by all the
    parties to the present dispute. Moreover, it is only conditional on certain
    stipulations being fulfilled. Hence, the settlement cannot be treated to be a
    binding or concluded agreement between the parties to the dispute. We,
    however, record our appreciation of the earnest efforts made by the members of
    the mediation panel in embarking on the task entrusted by this Court. In bringing
    together the disputants on a common platform for a free and frank dialogue, the
    mediators have performed a function which needs to be commended. We also
    express our appreciation of the parties who earnestly made an effort to pursue
    the mediation proceedings.
    B. An overview of the suits
  8. Before examining the various contentions of the parties before this Court,
    we first record the procedural history, substantive claims and reliefs prayed for in
    the pleadings of the three Suits before this Court.
    Suit 1 – OOS No 1 of 1989 (Regular Suit 2 of 1950)
  9. The suit was instituted on 13 January 1950 by Gopal Singh Visharad, a
    resident of Ayodhya in his capacity as a ―follower of Sanatan Dharm‖ seeking:
    PART B
    30
    (i) A declaration of his entitlement to worship and seek the darshan of Lord
    Ram, ―according to religion and custom‖ at the Janmabhumi temple
    without hindrance; and
    (ii) A permanent and perpetual injunction restraining defendant nos 1 to 10
    from removing the idols of the deity and other idols from the place where
    they were installed; from closing the way leading to the idols; or interfering
    in worship and darshan.
    Defendant nos 1 to 5 are Muslim residents of Ayodhya; defendant no 6 is the
    State of Uttar Pradesh; defendant no 7 is the Deputy Commissioner of Faizabad;
    defendant no 8 is the Additional City Magistrate, Faizabad; defendant no 9 is the
    Superintendent of Police, Faizabad; defendant no 10 is the Sunni Central Waqf
    Board and defendant no 11 is the Nirmohi Akhara.
    The case of the plaintiff in Suit 1 is that, as a resident of Ayodhya, he was
    worshipping the idol of Lord Ram and Charan Paduka (foot impressions) ―in that
    place of Janambhumi‖. The boundaries of the ‗disputed place‘ as described in the
    plaint are as follows:
    ―Disputed place:
    East: Store and Chabutra of Ram Janam Bhumi
    West: Parti
    North: Sita Rasoi
    South: Parti.‖
    The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when
    the employees of the government are alleged to have unlawfully prevented the
    plaintiff ―from going inside the place‖ and exercising his right of worship. It was
    alleged that the ―State‖ adopted this action at the behest of the Muslim residents
    PART B
    31
    represented by defendant nos 1 to 5, as a result of which the Hindus were stated
    to been deprived of their ―legitimate right of worship‖. The plaintiff apprehended
    that the idols, including the idol of Lord Ram, would be removed. These actions
    were alleged to constitute a ―direct attack on the right and title of the plaintiff‖ and
    were stated to be an ―oppressive act‖, contrary to law.
  10. Denying the allegations contained in the plaint, defendant nos 1 to 5 stated
    in their written statements that:
    (i) The property in respect of which the case has been instituted is not
    Janmabhumi but a mosque constructed by Emperor Babur. The mosque
    was built in 1528 on the instructions of Emperor Babur by Mir Baqi, who
    was the Commander of Babur‘s forces, following the conquest of the subcontinent by the Mughal emperor;
    (ii) The mosque was dedicated as a waqf for Muslims, who have a right to
    worship there. Emperor Babur laid out annual grants for the maintenance
    and expenditure of the mosque, which were continued and enhanced by
    the Nawab of Awadh and the British Government;
    (iii) The Suit of 1885 was a suit for declaration of ownership by Mahant
    Raghubar Das only in respect of the Ramchabutra and hence the claim
    that the entire building represented the Janmasthan was baseless. As a
    consequence of the dismissal of the Suit on 24 December 1885, ―the case
    respecting the Chabutra was not entertained‖;
    (iv) The Chief Commissioner Waqf appointed under the U.P. Muslim Waqf Act
    1936 had held the mosque to be a Sunni Waqf;
    PART B
    32
    (v) Muslims have always been in possession of the mosque. This position
    began in 1528 and continued thereafter, and consequently, ―Muslims are in
    possession of that property … by way of an adverse possession‖;
    (vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which
    point there were no idols under the central dome. If any person had placed
    any idol inside the mosque with a mala fide intent, ―the degradation of the
    mosque is evident and the accused persons are liable to be prosecuted‖;
    (vii) Any attempt of the plaintiff or any other person to enter the mosque to offer
    worship or for darshan would violate the law. Proceedings under Section
    145 of the CrPC 1898 had been initiated; and
    (viii) The present suit claiming Babri Masjid as the place of the Janmasthan is
    without basis as there exists, for quite long, another temple with idols of
    Lord Ram and others, which is the actual place of the Janmasthan of Lord
    Ram.
    A written statement was filed by the defendant no 6, the State, submitting that:
    (i) The property in suit known as Babri Masjid has been used as a mosque for
    the purpose of worship by Muslims for a long period and has not been
    used as a temple of Lord Ram;
    (ii) On the night of 22 December 1949, the idols of Lord Ram were
    surreptitiously placed inside the mosque imperilling public peace and
    tranquillity. On 23 December 1949, the City Magistrate passed an order
    under Section 144 of CrPC 1898 which was followed by an order of the
    same date passed by the Additional City Magistrate under Section 145
    PART B
    33
    attaching the disputed property. These orders were passed to maintain
    public peace; and
    (iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal
    Board, Faizabad-cum-Ayodhya as a receiver of the property.
    Similar written statements were filed by defendant no 8, the Additional City
    Magistrate and defendant no 9, the Superintendent of Police.
    Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
    (i) The building in dispute is not the Janmasthan of Lord Ram and no idols
    were ever installed in it;
    (ii) The property in the suit was a mosque known as the Babri mosque
    constructed during the regime of Emperor Babur who had laid out annual
    grants for its maintenance and expenditure and they were continued and
    enhanced by the Nawab of Awadh and the British Government;
    (iii) On the night of 22-23 December 1949, the idols were surreptitiously
    brought into the mosque;
    (iv) The Muslims alone had remained in possession of the mosque from 1528
    up to the date of the attachment of the mosque under Section 145 on 29
    December 1949. They had regularly offered prayers up to 21 December
    1949 and Friday prayers up to 16 December 1949;
    (v) The mosque had the character of a waqf and its ownership vested in God;
    (vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi
    of Lord Ram as the claim in the Suit of 1885 instituted by Mahant
    Raghubar Das (described to be the plaintiff‘s predecessor) had been
    PART B
    34
    confined only to the Ramchabutra measuring seventeen by twenty-one
    feet outside the mosque; and
    (vii) There already existed a Ram Janmasthan Mandir, a short distance away
    from Babri Masjid.
    In the plaintiff‘s replication to the written statement of defendant nos 1 to 5, it was
    averred that the disputed site has never been used as a mosque since 1934. It
    was further stated that it was ―common knowledge‖ that Hindus have been in
    continuous possession by virtue of which the claim of the defendants has ceased.
    Suit 3 – OOS no 3 of 1989 (Regular Suit no 26 of 1959)
  11. The suit was instituted on 17 December 1959 by Nirmohi Akhara through
    Mahant Jagat Das seeking a decree for the removal of the receiver from the
    management and charge of the Janmabhumi temple and for delivering it to the
    plaintiff.
    Defendant no 1 in Suit 3 is the receiver; defendant no 2 is the State of Uttar
    Pradesh; defendant no 3 is the Deputy Commissioner, Faizabad; defendant no 4
    is the City Magistrate, Faizabad; defendant no 5 is the Superintendent of Police,
    Faizabad; defendant nos 6 to 8 are Muslim residents of Ayodhya; defendant no 9
    is the Sunni Central Waqf Board and defendant no 10 is Umesh Chandra
    Pandey.
    The cause of action is stated to have arisen on 5 January 1950 when the
    management and charge of the Janmabhumi temple was taken away by the City
    Magistrate and entrusted to the receiver. Nirmohi Akhara pleaded that:
    PART B
    35
    (i) There exists in Ayodhya ―since the days of yore‖ an ancient Math or
    Akhara of Ramanandi Bairagis called the Nirmohis. This is a religious
    establishment of a public character;
    (ii) The Janmasthan, commonly known as Janmabhumi, is the birth-place of
    Lord Ram and belongs to and has always been managed by Nirmohi
    Akhara;
    (iii) The Janmasthan is of ancient antiquity lying within the boundaries shown
    by the letters A B C D in the sketch map appended to the plaint within
    which stands the ―temple building‖ marked by the letters E F G K P N M L
    E. The building denoted by the letters E F G H I J K L E is the main
    Janmabhumi temple, where the idols of Lord Ram with Lakshman,
    Hanuman and Saligram have been installed. The temple building has been
    in the possession of Nirmohi Akhara and only Hindus have been allowed to
    enter the temple and make offerings such as money, sweets, flowers and
    fruits. Nirmohi Akhara has been receiving these offerings through its
    pujaris;
    (iv) Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of Bairagis
    which is a religious denomination. The customs of Nirmohi Akhara have
    been reduced to writing by a registered deed dated 19 March 1949;
    (v) Nirmohi Akhara owns and manages several temples;
    (vi) No Mohammedan has been allowed to enter the temple building since
    1934; and
    (vii) Acting under the provisions of Section 145 of the CrPC 1898, the City
    Magistrate placed the main temple and all the articles in it under the
    PART B
    36
    charge of the first defendant as receiver on 5 January 1950. As a
    consequence, the plaintiffs have been wrongfully deprived of the
    management and charge of the temple.
  12. In the written statement filed on behalf of defendant nos 6 to 8, Muslim
    residents of Ayodhya, it was stated that Babri Masjid was constructed by
    Emperor Babur in 1528 and has been constituted as a waqf, entitling Muslims to
    offer prayers. Moreover, it was submitted that:
    (i) The Suit of 1885 by Raghubar Mahant Das was confined to Ramchabutra
    and has been dismissed by the Sub-Judge, Faizabad;
    (ii) The property of the mosque was constituted as a waqf under the U.P.
    Muslim Waqf Act 1936;
    (iii) Muslims have been in continuous possession of the mosque since 1528 as
    a consequence of which all the rights of the plaintiffs have been
    extinguished;
    (iv) On the eastern and northern sides of the mosque, there are Muslim
    graves;
    (v) Namaz was continuously offered in the property until 16 December 1949
    and the character of the mosque will not stand altered if an idol has been
    installed surreptitiously; and
    (vi) There is another temple at Ayodhya which is known as the Janmasthan
    temple of Lord Ram which has been in existence for a long time.
    PART B
    37
    The plaint was amended to incorporate the averment that on 6 December 1992
    ―the main temple was demolished by some miscreants who had no religion, caste
    or creed‖.
    In the replication filed by Nirmohi Akhara to the joint written statement of
    defendant nos 6 to 8, the existence of a separate Janmasthan temple was
    denied. It was stated that the Janmasthan temple is situated to the North of the
    Janmabhumi temple.
    A written statement was filed in the suit by Defendant no 9, the Sunni Central
    Waqf Board denying the allegations.
    In the written statement filed by defendant no 10, Umesh Chandra Pandey, it was
    submitted:
    (i) The Janmasthan is a ―holy place of worship‖ and belongs to the deity of
    Shri Ram Lalla Virajman for a long period of time. The temple is possessed
    and owned by the deity. Lord Ram is the principal deity of Ram
    Janmabhumi;
    (ii) Nirmohi Akhara has never managed the Janmasthan;
    (iii) In 1857, the British Government attempted to divide the building by
    creating an inner enclosure and describing the boundary within it as a
    mosque but no ―true Muslim‖ could have offered prayers there;
    (iv) The presence of Kasauti pillars and the carvings of Gods and Goddess on
    the pillars indicated that the place could not be used by a ―true Muslim‖ for
    offering prayers;
    PART B
    38
    (v) The place was virtually landlocked by a Hindu temple in which worship of
    the deity took place;
    (vi) The Suit of the Nirmohi Akhara was barred by limitation having been
    instituted in 1959, though the cause of action arose on 5 January 1950;
    and
    (vii) Nirmohi Akhara did not join the proceedings under Section 145 nor did
    they file a revision against the order passed by the Additional City
    Magistrate.
    In the replication filed by Nirmohi Akhara to the written statement of defendant no
    10, there was a detailed account of the founding of the denomination. Following
    the tradition of Shankaracharya since the seventh century CE, the practice of
    setting up Maths was followed by Ramanujacharya and later, by Ramanand.
    Ramanand founded a sect of Vaishnavs known as ‗Ramats‘, who worship Lord
    Ram. The spiritual preceptors of the Ramanandi sect of Bairagis established
    three ‗annis‘ namely, the (i) Nirmohi; (ii) Digamber; and (iii) Nirwani Akharas.
    These Akharas are Panchayati Maths. Nirmohi Akhara owns the Ram
    Janmasthan temple which is associated with the birth-place of Lord Ram. The
    outer enclosure was owned and managed by Nirmohi Akhara until the
    proceedings under Section 145 were instituted.
    Suit 4 – OOS 4 of 1989 (Regular Suit no 12 of 1961)
  13. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf
    Board and nine Muslim residents of Ayodhya. It has been averred that the suit
    has been instituted on behalf of the entire Muslim community together with an
    PART B
    39
    application under Order I Rule 8 of the CPC. As amended, the following reliefs
    have been sought in the plaint:
    ―(a) A declaration to the effect that the property indicated
    by letters A B C D in the sketch map attached to the plaint is
    public mosque commonly known as ‗Babari Masjid‘ and that
    the land adjoining the mosque shown in the sketch map by
    letters E F G H is a public Muslim graveyard as specified in
    para 2 of the plaint may be decreed.
    (b) That in case in the opinion of the Court delivery of
    possession is deemed to be the proper remedy, a decree for
    delivery of possession of the mosque and graveyard in suit by
    removal of the idols and other articles which the Hindus may
    have placed in the mosque as objects of their worship be
    passed in plaintiff‘s favour, against the defendants.
    (bb) That the statutory Receiver be commanded to hand over
    the property in dispute described in Schedule ‗A‘ of the Plaint
    by removing the unauthorized structures erected thereon.‖
    [Note : Prayer (bb) was inserted by an amendment to the plaint pursuant to the
    order of the High Court dated 25 May 1995].
    Defendant no 1 in Suit 4 is Gopal Singh Visharad; defendant no 2 is Ram
    Chander Dass Param Hans; defendant no 3 is Nirmohi Akhara; defendant no 4 is
    Mahant Raghunath Das; defendant no 5 is the State of U.P.; defendant no 6 is
    the Collector, Faizabad; defendant no 7 is the City Magistrate, Faizabad;
    defendant no 8 is the Superintendent of Police of Faizabad; defendant no 9 is
    Priyadutt Ram; defendant no 10 is the President, Akhil Bharat Hindu Mahasabha;
    defendant no 13 is Dharam Das; defendant no 17 is Ramesh Chandra Tripathi;
    and defendant no 20 is Madan Mohan Gupta.
    The suit is based on the averment that in Ayodhya, there is an ancient historic
    mosque known commonly as Babri Masjid which was constructed by Babur more
    PART B
    40
    than 433 years ago following his conquest of India and the occupation of its
    territories. It has been averred that the mosque was built for the use of the
    Muslims in general as a place of worship and for the performance of religious
    ceremonies. The main construction of the mosque is depicted by the letters A B
    C D on the plan annexed to the plaint. Adjoining the land is a graveyard.
    According to the plaintiffs, both the mosque and the graveyard vest in the
    Almighty and since the construction of the mosque, it has been used by the
    Muslims for offering prayers while the graveyard has been used for burial. The
    plaint alleged that outside the main building of the mosque, Hindu worship was
    being conducted at a Chabutra admeasuring 17×21 feet on which there was a
    small wooden structure in the form of a tent.
    The plaint contains a recital of the Suit of 1885 by Mahant Raghubhar Das for
    permission to construct a temple on the Chabutra which was dismissed. The
    plaintiffs in Suit 4 contend that the Mahant sued on behalf of himself, the
    Janmasthan and all persons interested in it, and the decision operates as res
    judicata as the matter directly and substantially in issue was the existence of the
    Babri Masjid, and the rights of the Hindus to construct a temple on the land
    adjoining the mosque.
    According to the plaintiffs, assuming without admitting that there existed a Hindu
    temple as alleged by the defendants on the site of which the mosque was built
    433 years ago by Emperor Babur, the Muslims by virtue of their long exclusive
    and continuous possession commencing from the construction of the mosque
    and ensuing until its desecration perfected their title by adverse possession. The
    PART B
    41
    plaint then proceeds to make a reference to the proceedings under Section 145
    of CrPC 1898. As a result of the order of injunction in Suit 2 of 1950, Hindus have
    been permitted to perform puja of the idols placed within the mosque but Muslims
    have been prevented from entering.
    According to the plaintiffs, the cause of action for the suit arose on 23 December
    1949 when the Hindus are alleged to have wrongfully entered the mosque and
    desecrated it by placing idols inside the mosque. The injuries are claimed to be
    continuing in nature. As against the state, the cause of action is alleged to have
    arisen on 29 December 1949 when the property was attached by the City
    Magistrate who handed over possession to the receiver. The receiver assumed
    charge on 5 January 1950.
    The reliefs which have been claimed in the suit are based on the above
    averments. Essentially, the case of the plaintiffs proceeds on the plea that
    (i) The mosque was constructed by Babur 433 years prior to the suit as a
    place of public worship and has been continuously used by Muslims for
    offering prayers; and
    (ii) Even assuming that there was an underlying temple which was
    demolished to give way for the construction of the mosque, the Muslims
    have perfected their title by adverse possession. On this foundation, the
    plaintiffs claim a declaration of title and, in the event that such a prayer is
    required, a decree for possession.
    PART B
    42
  14. In the written statement filed by Gopal Singh Visharad, the first defendant
    (who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in
    possession of the mosque, it ceased in 1934. The Hindus claim to be in
    possession after 1934 and their possession is stated to have ripened into
    adverse possession. According to the written statement, no prayers were offered
    in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said
    to represent the entire Hindu community. Hindu puja is stated to be continuing
    inside the structure, which is described as a temple since 1934 and admittedly
    since January 1950, following the order of the City Magistrate. In an additional
    written statement, a plea has been taken that the UP Muslim Waqf Act 1936 is
    ultra vires. It has been averred that any determination under the Act cannot
    operate to decide a question of title against non-Muslims. In a subsequent written
    statement, it has been stated that Hindus have worshipped the site of the
    Janmabhumi since time immemorial; the Muslims were never in possession of
    the Janmabhumi temple and, if they were in possession, it ceased in 1934. The
    suit is alleged to be barred by limitation.
    As regards the Suit of 1885, it has been submitted that the plaintiff was not suing
    in a representative capacity and was only pursuing his personal interest.
    The written statement of Nirmohi Akhara denies the existence of a mosque.
    Nirmohi Akhara states that it was unaware of any suit filed by Mahant Raghubar
    Das. According to it, a mosque never existed at the site and hence there was no
    occasion for the Muslim community to offer prayers till 23 December 1949. It is
    urged that what the property described as Babri mosque is and has always been
    PART B
    43
    a temple of Janmabhumi with idols of Hindu Gods installed within. According to
    the written statement, the temple on Ramchabutra had been judicially recognised
    in the Suit of 1885. It was urged that the Janmabhumi temple was always in the
    possession of Nirmohi Akhara and none else but the Hindus were allowed to
    enter and offer worship. The offerings are stated to have been received by the
    representative of Nirmohi Akhara. After the attachment, only the pujaris of
    Nirmohi Akhara are claimed to have been offering puja to the idols in the temple.
    The written statement contains a denial of Muslim worship in the structure at least
    since 1934 and it is urged that Suit 4 is barred by limitation. In the additional
    written statement, Nirmohi Akhara has denied that the findings in the Suit of 1885
    operate as res judicata. There is a denial of the allegation that the Muslims have
    perfected their title by adverse possession.
    The State of Uttar Pradesh filed its written statement to the effect that the
    government is not interested in the property in dispute and does not propose to
    contest the suit.
    In the written statement filed on behalf of the tenth defendant, Akhil Bhartiya
    Hindu Mahasabha, it has been averred that upon India regaining independence,
    there is a revival of the original Hindu law as a result of which the plaintiffs cannot
    claim any legal or constitutional right. In an additional written statement, the tenth
    defendant denies the incident of 22 December 1949 and claims that the idols
    were in existence at the place in question from time immemorial. According to the
    written statement, the site is the birth-place of Lord Ram and no mosque could
    have been constructed at the birth-place.
    PART B
    44
    The written statement by Abhiram Das and by Dharam Das, who claims to be his
    chela, questions the validity of the construction of a mosque at the site of Ram
    Janmabhumi. According to the written statement, the site is landlocked and
    surrounded by places of Hindu worship and hence such a building cannot be a
    valid mosque in Muslim law. The written statement contains a denial of a valid
    waqf on the ground that a waqf cannot be based on adverse possession.
    According to the written statement, at Ram Janmabhumi there was an ancient
    temple tracing back to the rule of Vikramaditya which was demolished by Mir
    Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is
    divine and immortal. In spite of the construction of the mosque, it has been
    submitted, the area has continued to be in the possession of the deities and no
    one could enter the three domed structure except after passing through Hindu
    places of worship. The written statements filed by the other Hindu defendants
    broadly follow similar lines. Replications were filed to the written statements of
    the Hindu parties.
    Suit 5 – OOS no 5 of 1989 (Regular Suit no 236 of 1989)
  15. The suit was instituted on 1 July 1989 claiming the following reliefs:
    ―(A) A declaration that the entire premises of Sri Rama Janma
    Bhumi at Ayodhya, as described and delineated in Annexure
    I, II and III belongs to the plaintiff Deities.
    (B) A perpetual injunction against the Defendants prohibiting
    them from interfering with, or raising any objection to, or
    placing any obstruction in the construction of the new Temple
    building at Sri Rama Janma Bhumi, Ayodhya, after
    demolishing and removing the existing buildings and
    structures etc., situate thereat, in so far as it may be
    necessary or expedient to do so for the said purpose.‖
    PART B
    45
    This suit has been instituted in the name of ―Bhagwan Sri Ram Virajman at Sri
    Ram Janmabhumi, Ayodhya also called Bhagwan Sri Ram Lalla Virajman‖. The
    deity so described is the first plaintiff. The second plaintiff is described as ―Asthan
    Sri Rama Janambhumi, Ayodhya‖. Both the plaintiffs were represented by Sri
    Deoki Nandan Agrawala, a former judge of the Allahabad High Court as next
    friend. The next friend of the first and second plaintiffs is impleaded as the third
    plaintiff.
    The defendants to the suit include:
    (i) Nirmohi Akhara which is the Plaintiff in Suit 3;
    (ii) Sunni Central Waqf Board, the Plaintiff in Suit 4;
    (iii) Hindu and Muslim residents of Ayodhya; and
    (iv) The State of Uttar Pradesh, the Collector and Senior Superintendent of
    Police.
    Several other Hindu entities including the All India Hindu Mahasabha and a Trust
    described as the Sri Ram Janmabhumi Trust, are parties to the Suit as is the
    Shia Central Board of Waqfs.
    The principal averments in Suit 5 are that:
    (i) The first and second plaintiffs are juridical persons: Lord Ram is the
    presiding deity of the place and the place is itself a symbol of worship;
    (ii) The identification of Ram Janmabhumi, for the purpose of the plaint is
    based on the site plans of the building, premises and adjacent area
    prepared by Sri Shiv Shankar Lal, who was appointed as Commissioner by
    the Civil Judge at Faizabad in Suit 1 of 1950;
    PART B
    46
    (iii) The plaint contains a reference to the earlier suits instituted before the Civil
    Court and that the religious ceremonies for attending to the deities have
    been looked after by the receiver appointed in the proceedings under
    Section 145. Although seva and puja of the deity have been conducted,
    darshan for the devotees is allowed only from behind a barrier;
    (iv) Alleging that offerings to the deity have been misappropriated, it has been
    stated that the devotees desired to have a new temple constructed ―after
    removing the old structure at Sri Ram Janmabhumi at Ayodhya‖. A Deed of
    Trust was constituted on 18 December 1985 for the purpose of managing
    the estate and affairs of the Janmabhumi;
    (v) Though both the presiding deity of Lord Ram and Ram Janmabhumi are
    claimed to be juridical persons with a distinct personality, neither of them
    was impleaded as a party to the earlier suits. As a consequence, the
    decrees passed in those suits will not bind the deities;
    (vi) Public records establish that Lord Ram was born and manifested himself in
    human form as an incarnation of Vishnu at the premises in dispute;
    (vii) The place itself – Ram Janmasthan – is an object of worship since it
    personifies the divine spirit worshipped in the form of Lord Ram. Both the
    deity and the place of birth thus possess a juridical character. Hindus
    worship the spirit of the divine and not its material form in the shape of an
    idol. This spirit which is worshipped is indestructible. Representing this
    spirit, Ram Janmabhumi as a place is worshipped as a deity and is hence
    a juridical person;
    PART B
    47
    (viii) The actual and continuous performance of puja of ―an immovable deity‖ by
    its devotees is not essential for its existence since the deity represented by
    the land is indestructible;
    (ix) There was an ancient temple during the reign of Vikramaditya at Ram
    Janmabhumi. The temple was partly destroyed and an attempt was made
    to raise a mosque by Mir Baqi, a Commander of Emperor Babur. Most of
    the material utilised to construct the mosque was obtained from the temple
    including its Kasauti pillars with Hindu Gods and Goddesses carved on
    them;
    (x) The 1928 edition of the Faizabad Gazetteer records that during the course
    of his conquest in 1528, Babur destroyed the ancient temple and on its site
    a mosque was built. In 1855, there was a dispute between Hindus and
    Muslims. The gazetteer records that after the dispute, an outer enclosure
    was placed in front of the mosque as a consequence of which access to
    the inner courtyard was prohibited to the Hindus. As a result, they made
    their offerings on a platform in the outer courtyard;
    (xi) The place belongs to the deities and no valid waqf was ever created or
    could have been created;
    (xii) The structure which was raised upon the destruction of the ancient temple,
    utilising the material of the temple does not constitute a mosque. Despite
    the construction of the mosque, Ram Janmabhumi did not cease to be in
    possession of the deity which has continued to be worshipped by devotees
    through various symbols;
    PART B
    48
    (xiii) The building of the mosque could be accessed only by passing through the
    adjoining places of Hindu worship. Hence, at Ram Janmabhumi, the
    worship of the deities has continued through the ages;
    (xiv) No prayers have been offered in the mosque after 1934. During the night
    intervening 22-23 December 1949, idols of Lord Ram were installed with
    due ceremony under the central dome. At that stage, acting on an FIR,
    proceedings were initiated by the Additional City Magistrate under Section
    145 of the CrPC and a preliminary order was passed on 29 December
  16. A receiver was appointed, in spite of which the possession of the
    plaintiff deities was not disturbed;
    (xv) The plaintiffs, were not a party to any prior litigation and are hence not
    bound by the outcome of the previous proceedings; and
    (xvi) The Ram Janmabhumi at Ayodhya which contains, besides the presiding
    deity, other idols and deities along with its appertaining properties
    constitutes one integral complex with a single identity. The claim of the
    Muslims is confined to the area enclosed within the inner boundary wall,
    erected after the annexation of Oudh by the British.
    The plaint contains a description of the demolition of the structure of the mosque
    on 6 December 1992 and the developments which have taken place thereafter
    including the promulgation of an Ordinance and subsequently, a law enacted by
    the Parliament for acquisition of the land.
    PART B
    49
  17. In the written statement filed by Nirmohi Akhara, it has been stated that:
    (i) The idol of Lord Ram has been installed not at Ram Janmabhumi but in
    the Ram Janmabhumi temple. Nirmohi Akhara has instituted a suit
    seeking charge and management of Ram Janmabhumi temple;
    (ii) While the birth-place of Lord Ram is not in dispute, it is the Ram
    Janmabhumi temple which is in dispute. The Muslims claim it to be a
    mosque while Nirmohi Akhara claims it to be a temple under its charge
    and management. Ram Janmabhumi temple is situated at ―Asthan Ram
    Janmabhumi‖ (the birth-place of Lord Ram), Mohalla Ram Kot at
    Ayodhya;
    (iii) Nirmohi Akhara is the Shebait of the idol of Lord Ram installed in the
    temple in dispute and has the exclusive right to repair and reconstruct the
    temple, if necessary; and
    (iv) ―Ram Janmabhumi Asthan‖ is not a juridical person. The plaintiffs of suit 5
    have no real title to sue. The entire premises belong to Nirmohi Akhara,
    the answering defendant. Hence, according to the written statement the
    plaintiffs have no right to seek a declaration.
    According to the written statement of the Sunni Central Waqf Board:
    (i) Neither the first nor the second plaintiffs are juridical persons;
    (ii) There is no presiding deity of Lord Ram at the place in dispute;
    (iii) The idols were surreptitiously placed inside the mosque on the night of 22-
    23 December 1949. There is neither any presiding deity nor a Janmasthan;
    (iv) The Suit of 1885 was instituted by Mahant Raghubar Das in his capacity
    as Mahant of the Janmasthan of Ayodhya seeking permission to establish
    PART B
    50
    a temple over a platform or Chabutra. The mosque was depicted in the site
    plan on the western side of the Chabutra. The suit was instituted on behalf
    of other Mahants and Hindus of Ayodhya and Faizabad. The suit was
    dismissed. The first and second appeals were also rejected. Since the
    claim in the earlier suit was confined only to the Chabutra admeasuring
    seventeen by twenty-one feet outside the mosque, the claim in the present
    suit is barred;
    (v) There exists another temple known as the Janmasthan temple situated at
    a distance of less than one hundred yards from Babri Masjid;
    (vi) The mosque was not constructed on the site of an existing temple or upon
    its destruction;
    (vii) During the regime of Emperor Babur the land belonged to the State and
    the mosque was constructed on vacant land which did not belong to any
    person;
    (viii) The structure has always been used as a mosque ever since its
    construction during the regime of Emperor Babur, who was a Sunni
    Muslim;
    (ix) The possession of Muslims was uninterrupted and continuous since the
    construction of the mosque, until 22 December 1949. Therefore, any
    alleged right to the contrary is deemed to have been extinguished by
    adverse possession;
    (x) Prayers were offered in the mosque five times every day, regularly until 22
    December 1949 and Friday prayers were offered until 16 December 1949;
    PART B
    51
    (xi) On 22-23 December 1949, some Bairagis forcibly entered into the mosque
    and placed an idol below the central dome. This came to the knowledge of
    Muslims who attended the mosque for prayers on 23 December 1949 after
    which proceedings were initiated under Section 145 of the CrPC 1898. The
    possession of the building has remained with the receiver from 5 January
    1950;
    (xii) The third plaintiff in Suit 5 could have got himself impleaded as a party to
    the suit instituted by the Sunni Central Waqf Board. Having failed to do so
    the third plaintiff cannot maintain Suit 5 as the next friend of the deities;
    (xiii) The third plaintiff has never been associated with the management and
    puja of the idols and cannot claim himself to be the next friend of Lord
    Ram;
    (xiv) There is no presiding deity as represented by the first plaintiff and it is
    incorrect to say that the footsteps (―charan‖) and other structures constitute
    one integral complex with a single identity;
    (xv) The concept of a mosque envisages that the entire area below as well as
    above the land remains dedicated to God. Hence, it is not merely the
    structure of the mosque alone but also the land on which it stands which is
    dedicated to the Almighty, Allah;
    (xvi) The site in question has no connection with the place of birth of Lord Ram
    and has no significance to the alleged ―Asthan‖ of Ram Janmabhumi;
    (xvii) The cause of action for the suit is deemed to have accrued in December
    1949 when the property was attached and when the Muslims categorically
    PART B
    52
    denied the claim of the Hindus to perform puja in the mosque. Hence, the
    suit is barred by limitation;
    (xviii) The subject matter of the suit is property registered as a waqf which is
    maintained by the Sunni Central Waqf Board under Section 30 of the U P
    Muslim Waqf Act 1960, shown as such in the revenue records; and
    (xix) Archaeological experts seem to indicate that there appears to be no sign of
    human habitation predating to 700 B.C. nor is there any evidence that a
    fort, palace or old temple existed at the site of Babri Masjid.
    In the written statement filed on behalf of defendant no 5 who is a Muslim
    resident of Ayodhya, it has been submitted that:
    (i) The premises have always been a mosque since the construction in the
    sixteenth century and have been used only for the purposes of offering
    namaz;
    (ii) The existence of Kasauti pillars is denied. No one else except the Muslims
    worshipped in Babri Masjid. Namaz was offered in the mosque since its
    construction until 22 December 1949;
    (iii) Babri Masjid was not constructed on the site of a temple which was
    demolished at the behest of Emperor Babur;
    (iii) The Ram Janmasthan Mandir which exists in Ayodhya is distinct and
    separate from the premises in question; and
    (iv) The findings in the Suit of 1885 operate as res judicata.
    An additional written statement was filed on behalf of defendant nos 4 and 5 in
    order to deal with the amendments to the plaint consequent upon the demolition
    PART B
    53
    of the Babri Masjid on 6 December 1992.
    The written statement of defendant no 6, a Muslim resident of Ayodhya, adopts
    the written statement of defendant no 5. The written statement of defendant no
    11, the President of the All India Hindu Mahasabha, has submitted to a decree in
    terms as sought in the plaint. The written statements filed by the Hindu and
    Muslim defendants follow broadly the same respective lines.
  18. A written statement has been filed by defendant no 24, Prince Anjum
    Qader stating thus:
    ―(a) The spot being presently claimed by the plaintiff is being
    made known as Ram Janam Bhoomi only since 22.12.1949.
    (b) The Ram Chabutra, in the court-yard outside the Babri
    Masjid structure, is being known as Ram Janam Bhoomi only
    since 1885.
    (c) The Janamsthan site Rasoi Mandir, facing the Babri
    Masjid across the street, is traditionally known as
    Ramjanambhumi since time immemorial.‖
    According to defendant no 24:
    (i) In 1855, a spot outside the structure of Babri Masjid in a corner of
    the courtyard was claimed as the Janmasthan. At that stage, an
    area admeasuring seventeen by twenty-one feet was partitioned by
    naming it as Ramchabutra;
    (ii) On 22 December 1949, the Janmasthan claim was shifted from
    Ramchabutra to a place inside the mosque beneath the main dome
    of the Babri Masjid;
    PART B
    54
    (iii) Prior to 1855, ―the undisputed Ram Janmasthan was the old
    Janmasthan Sita Rasoi Mandir across the street on a mound facing
    the Babri Masjid‖;
    (iv) According to defendant no 24, the following three sites are now
    believed to be probable places of the birth of Lord Ram, namely:
    (a) Inside the Babri Masjid beneath the main dome since 1949;
    (b) At Ramchabutra in the courtyard of the Babri Masjid since
    1855; and
    (c) At the old Ram Janmasthan Mandir where Sita Rasoi is also
    situated.
    (v) While the 1928 edition of the Faizabad Gazetteer published by the
    British Government contains a narration of Emperor Babur halting at
    Ayodhya for a week, destroying the ancient temple and building the
    Babri Masjid with the materials of the destroyed temple, it is a fact of
    history that Babur never came to Ayodhya. The Babur-Nama, a
    memoir of Emperor Babur has made no mention of visiting Ayodhya,
    destroying the temple or of building a mosque. Defendant no 24
    states that:
    ―However, after all said and done, it is most
    respectfully submitted that if only this claim is proved
    that a Mandir was demolished and Babri Masjid was
    built on the Mandir land, this defendant and all other
    Muslims will gladly demolish and shift the mosque,
    and return the land for building of the Mandir thereon.‖
    (vi) Babri Masjid was built by Mir Baqi on vacant land and not on the
    ruins of a pre-existing temple. Since Mir Baqi was a Shia Muslim,
    PART B
    55
    the ‗mutawalliship‘ devolved upon his descendants since inception
    in 1528 without a break. However, both Shias and Sunnis offered
    namaz in Babri Masjid. The Sunni Muslims were permitted by the
    Shia mutawalli to perform their own daily Jamaat in the Masjid since
    1925, when the Shia population in Ayodhya dwindled. The Sunni
    Imam of Babri Masjid led the last namaz on 22 December 1949.
    The written statement of defendant no 25 states that:
    (i) Babri Masjid has always been in use as a mosque in which the
    namaz was offered since its construction, until 22 December 1949;
    and
    (ii) On the night between 22-23 December 1949, some persons illegally
    trespassed into the mosque as a result of which an FIR was lodged
    and proceedings under Section 145 were initiated. A receiver was
    appointed and the status quo was directed to be continued during
    the pendency of the civil suits before the Civil Court.
    Heads of issues in the Suits
  19. Justice Sudhir Agarwal observed that the issues in the four suits can be
    broadly classified under the following heads :
    ―(A) Notice under Section 80 C.P.C.
    (B) Religious denomination
    (C) Res judicata, waiver and estoppel
    (D) Waqf Act 13 of 1936 etc.
    (E) Miscellaneous issues like representative nature of suit, Trust, Section
    91 C.P.C., non joinder of parties, valuation/ insufficient Court fee/under
    valuation and special costs.
    PART C
    56
    (F) Person and period- who and when constructed the disputed building
    (G) Deities, their status, rights etc.
    (H) Limitation
    (I) Possession/adverse possession
    (J) Site as birthplace, existence of temple and demolition if any.
    (K) Character of Mosque
    (L) Identity of the property
    (M) Bar of Specific Relief Act
    (N) Others, if any.‖
    C. Evidence: a bird‘s eye view
  20. A wealth of material emerged before the court during the course of the
    trial. The judgment of Justice Sudhir Agarwal in the High Court copiously
    tabulates the documentary evidence13. The documentary exhibits of the parties
    during the course of trial comprised of 533 exhibits of which a brief categorisation
    is:
  21. Plaintiffs (Suit-1) – Exhibits No. 1 to 34 (Total 34)
  22. Plaintiffs (Suit-3) – Exhibits No. 1 to 21 (Total 21)
  23. Plaintiffs (Suit-4) – Exhibits No. 1 to 128 (Total 128)
  24. Plaintiffs (Suit-5) – Exhibits No. 1 to 132 (Total 132)
  25. Defendants (Suit-1) – Exhibits No. A1 to A72 (Total 73)
  26. Defendants (Suit-4) – (i) Exhibits No. A1 to A16 (Total 16)
    (ii) Exhibits No. M1 to M7 (Total 7)
    (iii) Exhibits No. B1 to B16 (Total 16)
    (iv) Exhibits No. J1 to J31 (Total 32)
    (v) Exhibits No. T1-T6 (Total 6)
    (vi) Exhibit No. V1 (Total 1)
    (vii) Exhibits No. Q1 to Q6 (Total 6)

13 2010 (ADJ), Vol. I, pages 624-662
PART C
57

  1. Defendants (Suit-5) – (i) Exhibits No. C1 to C11 (Total 11)
    (ii) Exhibits No. D1 to D38 (Total 38)
    (iii) Exhibits No. E1 to E8 (Total 12) Grand Total – 533
    These exhibits broadly comprise of :
    (i) Religious texts;
    (ii) Travelogues;
    (iii) Gazetteers;
    (iv) Translations of inscriptions on pillars;
    (v) Reports of Archaeological excavation;
    (vi) Photographs prior to demolition; and
    (vii) Details of artefacts found at the disputed site.
    The judgment of Justice Sudhir Agarwal in the High Court tabulates the oral
    evidence in the four suits under the following heads:
    ―274. (1) Oral Depositions : Parties to these suits produced
    88 witnesses, who deposed on one or the other subject.
    Broadly, these witnesses are categorized as under:
  2. (a) Witnesses produced in Suit-4 by Plaintiff :
    (I) Witness of facts :
  3. P.W 1 Sri Mohd. Hashim
  4. PW 2 Hazi Mahboob Ahmed
  5. PW 3 Farooq Ahmad
  6. PW 4 Mohd. Yasin
  7. PW 5 Sri Abdul Rehman
  8. PW 6 Mohd. Yunus Siddiqui
  9. PW 7 Sri Hashmat Ullah Ansari
  10. PW 8 Sri Abdul Aziz
    PART C
    58
  11. PW 9 Syeed Akhlak Ahmad
  12. PW 10 Mohd. Idris
  13. PW11 Mohd. Burhanuddin
  14. PW 12 Ram Shanker Upadhyay
  15. PW 13 Suresh Chandra Mishra
  16. PW 14 Jalil Ahmad
  17. PW 21 Dr. M. Hashim Qidwai
  18. PW 23 Mohd Qasim Ansari
  19. PW 25 Mohd. Sibte Naqvi
    (II) Expert Witnesses (Historians)
  20. PW 15 Sushil Srivastava
  21. PW 18 Prof. Suvira Jaiswal
  22. PW 20 Prof. Shirin Musavi
    (III) Expert Witnesses (Archaeologists)
  23. PW 16 Prof. Suraj Bhan
  24. PW 24 Prof. D. Mandal
  25. PW 27 Dr. Shereen F. Ratnagar
  26. PW 28 Dr. Sita Ram Roy
  27. PW 29 Dr. Jaya Menon
  28. PW 30 Dr. R. C. Thakran
  29. PW 31 Dr. Ashok Datta
  30. PW 32 Dr. Supriya Verma
    (IV) Private Commissioner
  31. PW 17 Zafar Ali Siddiqui
    (V) Expert Witnesses (Religious matters)
  32. PW 19 Maulana Atiq Ahmad
  33. PW 22 Mohd. Khalid Naqui
  34. PW 26 Kalbe Jawed
  35. (b) Witnesses produced in Suit-5 by Plaintiff :
    (I) Witness of facts :
  36. OPW 1 Mahant Paramhans Ram Chandra
    Das
  37. OPW 2 Sri D.N. Agarwal
  38. OPW 4 Harihar Prasad Tewari
    PART C
    59
  39. OPW 5 Ram Nath Mishra alias Banarsi Panda
  40. OPW 6 Hausila Prasad Tripathit
  41. OPW 7 Sri Ram Surat Tewari
  42. OPW 8 Ashok Chandra Chatterjee
  43. OPW 12 Kaushal Kishor Misra
  44. OPW 13 Narad Saran
    (II) Expert Witnesses (Archaeologists)
  45. OPW 3 Dr. S.P. Gupta
  46. OPW 14 Dr. Rakesh Tewari
  47. OPW 17 Dr. R. Nagaswami
  48. OPW 18 Sri Arun Kumar Sharma
  49. OPW 19 Sri Rakesh Dutta Trivedi
    (III) Expert Witness (Epigraphist and Historian)
  50. OPW 9 Dr. T.P. Verma
    (IV) Expert Witnesses (Epigraphist)
  51. OPW 10 Dr. Voluvyl Vyasarayasastri Ramesh
  52. OPW 15 Dr. M.N. Katti
    (V) Expert Witnesses (Historians)
  53. OPW 11 Dr. Satish Chandra Mittal
    (VI) Expert Witnesses (Religious matters)
  54. OPW 16 Jagadguru Ramanandacharya
    Swami Ram Bhadracharya
  55. (c) Witnesses produced in Suit-1 by Plaintiff :
    (I) Witness of facts :
  56. DW 1/1 Sri Rajendra Singh
  57. DW 1/2 Sri Krishna Chandra Singh
  58. DW 1/3 Sri Sahdeo Prasad Dubey
  59. (d) Witnesses produced in Suit-3 of 1989 by Plaintiff:
    (I) Witness of facts :
    PART C
    60
  60. DW 3/1 Mahant Bhaskar Das
  61. DW 3/2 Sri Raja Ram Pandey
  62. DW 3/3 Sri Satya Narain Tripathi
  63. DW 3/4 Mahant Shiv Saran Das
  64. DW 3/5 Sri Raghunath Prasad Pandey
  65. DW 3/6 Sri Sita Ram Yadav
  66. DW 3/7 Mahant Ramji Das
  67. DW 3/8 Pt. Shyam Sundar Mishra @ Barkau Mahraj
  68. DW 3/9 Sri Ram Ashrey Yadav
  69. DW 3/11 Sri Bhanu Pratap Singh
  70. DW 3/12 Sri Ram Akshaibar Pandey
  71. DW 3/13 Mahant Ram Subhag Shashtri
  72. DW 3/15 Narendra Bahadur Singh
  73. DW 3/16 Sri Shiv Bhikh Singh
  74. DW 3/17 Sri Mata Badal Tewari
  75. DW 3/18 Sri Acharya Mahant Bansidhar Das @ Uriya Baba
  76. DW 3/19 Sri Ram Milan Singh
  77. DW 3/20 Mahant Raja Ramchandr-acharya
    (II) Others :
  78. DW 3/10 Sri Pateshwari Dutt Pandey
  79. DW 3/14 Jagad Guru Ramanandacharya
    Swami Haryacharya
  80. (e) Witnesses produced by Defendant 2/1 in Suit-4 :
    (I) Witness of facts :
  81. DW 2/1-3 Mahant Ram Vilas Das Vedanti
    (II) Others :
  82. DW 2/1-1 Sri Rajendra.
  83. DW 2/1-2 Sri Ram Saran Srivastava
  84. (f) Witnesses produced by Defendant 13/1 in Suit-4 :
    (I) Expert Witness (Historians) :
  85. DW 13/1-3 Dr. Bishan Bahadur
    (II) Others :
  86. DW 13/1-1 Mahant Dharam Das
    PART C
    61
  87. DW 13/1-2 Mahant Awadh Bihari Das Pathak
  88. (g) Witnesses produced by Defendant 17 in Suit-4 :
    (I) Witness of facts :
  89. DW 17/1 Sri Ramesh Chandra Tripathi
  90. (h) Witnesses produced by Defendant 20 in Suit-4 :
    (I) Witness of facts :
  91. DW 20/1 Sri Shashi Kant Rungta
  92. DW 20/4 Sri M.M. Gupta
    (II) Expert Witnesses (Religious matters)
  93. DW 20/2 Swami Avimukteshwaran and
    Saraswati
  94. DW 20/3 Bramchari Ram Rakshanand
    (III) Expert Witness (Archaeologist)
  95. DW 20/5 Sri Jayanti Prasad Srivastava
  96. (i) Witnesses produced by Defendant 6/1 in Suit-3 :
    (I) Expert Witness (Archaeologist) :
  97. DW 6/1-2 Sri Mohd. Abid
    (II) Others :
  98. DW 6/1-1 Sri Haji Mahboob Ahmad.‖
    Statements under Order X Rule 2 CPC
  99. During the course of the hearing of the suit, the Trial Court recorded the
    statements of parties and their pleaders under the provisions of Order X Rule 2 of
    the Code of Civil Procedure 190814 (―CPC‖).
  100. Oral examination of party, or companion of party- (1) At the first hearing of the suit, the Court-
    PART C
    62
    On 8 August 1962, it was stated on behalf of the Sunni Central Waqf Board that:
    ―the property in suit is the property dedicated to Almighty God
    and is a mosque for the use of the entire Muslim community
    at large…‖
    On 28 August 1963, it was stated by the Sunni Central Waqf Board that in the
    alternative even if the defendants had any right in the property, it stood
    extinguished by a lapse of time and the plaintiff (Sunni Central Waqf Board) had
    acquired title by adverse possession.
    On 11 January 1996, the statement of Mr Zafaryab Jilani, learned Senior Counsel
    appearing for the Sunni Central Waqf Board was recorded to the effect that:
    ―That the mosque was situate on a Nazul Plot No. 583 of the
    Khasra of 1931 of Mohalla Kot Ramchandra known as
    Ramkot at Ayodhya.‖
    On 22 April 2009, the following statement of Mr Zafaryab Jilani, learned Senior
    Counsel was recorded under Order X Rule 2 of the CPC:
    ―For the purpose of this case there is no dispute about the
    faith of Hindu devotees of Lord Rama regarding the birth of
    Lord Rama at Ayodhya as described in Balmiki Ramayana or
    as existing today. It is, however, disputed and denied that the
    site of Babri Masjid was the place of birth of Lord Rama. It is
    also denied that there was any Ram Janam Bhoomi Temple
    at the site of Babri Masjid at any time whatsoever.
    The existence of Nirmohi Akhara from the second half of
    Nineteenth Century onwards is also not disputed. It is
    however, denied and disputed that Nirmohi Akhara was in (a) shall, with a view to elucidating matters in controversy in the suit, examine, orally such of the parties to
    the suit appearing in person or present in Court, as it deems fit; and
    (b) may orally examine any person, able to answer any material question relating to the suit, by whom any
    party appearing in person or present in Court or his pleader is accompanied.
    (2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court,
    or any person, able to answer any material question relating to the suit, by whom such party or his pleader is
    accompanied.
    (3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by
    either party.
    PART D
    63
    existence and specially in Ayodhya in 16th Century A.D. or in
    1528 A.D. and it is also denied that any idols were there in
    the building of the Babri Masjid up to 22nd December, 1949.‖
    Similar statements were made on behalf of other counsel representing the
    Muslim parties. There is, in other words, no dispute before this Court in regard to
    the faith and belief of the Hindus that the birth of Lord Ram is ascribed to have
    taken place at Ayodhya, as described in Valmiki‘s Ramayan. What is being
    disputed is whether the disputed site below the central dome of the Babri Masjid
    is the place of birth of Lord Ram. The Muslim parties have expressly denied the
    existence of a Ram Janmabhumi temple at the site of Babri Masjid. With this
    background, it becomes necessary to advert to the salient aspects of the
    documentary evidence which has emerged on the record.

D. The aftermath of 1856-7
D.1 Response to the wall

  1. In 1856-7, a communal riot took place. Historical accounts indicate that the
    conflagration had its focus at Hanumangarhi and the Babri mosque. Some of
    those accounts indicate that prior to the incident, Muslims and Hindus alike had
    access to the area of the mosque for the purpose of worship. The incident was
    proximate in time with the transfer of power to the colonial government. The
    incident led to the setting up of a railing made of a grill-brick wall outside the
    mosque. The object of this would have been to maintain peace and due order at
    the site. The railing provided the genesis of the bifurcation of the inner courtyard
    (in which the structure of the mosque was situated) and the outer courtyard
    PART D
    64
    comprising the remaining area. The setting up of the railing was not a
    determination of proprietary rights over the inner and outer courtyards, the
    measure having been adopted to maintain peace between the two communities.
    This section of the judgment traces the documentary evidence on the aftermath
    of 1856-7 at the disputed site, the continuing skirmishes in the inner and outer
    courtyards, the proceedings between various disputants and the claim to worship
    by the Hindus in the inner courtyard. The evidence is as follows:
    (i) On 28 November 1858 a report was submitted by Sheetal Dubey who was
    the Thanedar, Oudh15. The report spoke of an incident during which
    Hawan and Puja was organised inside the mosque by a Nihang Sikh who
    had erected a religious symbol. The report states:
    ―Today Mr. Nihang Singh Faqir Khalsa resident of Punjab,
    organized Hawan and Puja of Guru Gobind Singh and
    erected a symbol of Sri Bhagwan, within the premises of the
    Masjid. At the time of pitching the symbol, 25 sikhs were
    posted there for security. Deemed necessary so requested.
    May your regime progress. Pleasure.‖
    (ii) An application was submitted by Syed Mohammad Khateeb, Muazzim of
    the Masjid16. The subject of the application was the report of the Thanedar
    Oudh. The application stated that ‗Mahant Nihang Singh Faqir‘ was
    creating a riot on ―Janam Sthan Masjid situated in Oudh‖. The application
    stated:
    ―Near Mehrab and Mimber, he has constructed, inside the
    case, an earth Chabutra measuring about four fingers by
    filling it with Kankars (concrete). Lighting arrangement has
    been made…and after raising the height of Chabutra about
    1
    1/4 yards a picture of idol has been placed and after digging

15 Exhibit 19
16 Exhibit 20
PART D
65
a pit near it, the Munder wall has been made Pucca. Fire has
been lit there for light and Puja and Hom is continuing there.
In whole of this Masjid ‗Ram Ram‘ has been written with coal.
Kindly, do justice. It is an open tyranny and high handedness
of the Hindus on Muslims and not that of Hindus. Previously
the symbol of Janamsthan had been there for hundreds of
years and Hindus did Puja. Because of conspiracy of Shiv
Ghulam Thandedar Oudh Government, the Bairagis
constructed overnight a Chabutra up to height of one ‗Balisht‘
until the orders of injunction were issued. At that time the
Deputy Commissioner suspended the Thanedar and fine was
imposed on Bairagis. Now the Chabootra has been raised to
about 11/4 yards. Thus sheer high-handedness has been
proved. Therefore, it is requested that Murtaza Khan Kotwal
City may be ordered that he himself visit the spot and inspect
the new constructions and get them demolished (sic) and
oust the Hindus from there; the symbol and the idol may be
removed from there and writing on the walls be washed.‖
The contents of the application indicate that by this time a platform had been
constructed inside the mosque in which an idol had been placed. A fire had been
lit and arrangements were made for puja. Evidently, the railing did not prevent
access to the inner courtyard or to the precincts of the mosque.
(iii) A report was submitted by the Thanedar on 1 December 1858 ―for
summoning Nihang Singh Faqir who is residing within the Masjid Janam
Sthan17. The report stated that he had taken a summons ―to the said Faqir‖
and he was admonished, in spite of which he continued to insist that ―every
place belonged to Nirankar‖;
(iv) A report was submitted by the Thanedar on 6 December 1858 indicating
service of the summons18;
(v) There was an application dated 9 April 1860 of Mohammadi Shah, resident
of Mohalla Ramkot seeking a postponement of the grant of a lease in

17 Exhibit 21
18 Exhibit 22
PART D
66
respect of village Ramkot until a decision was taken on whether the land is
Nazul land19;
(vi) On 5 November 1860, an application was made to the Deputy
Commissioner for the removal of the Chabutra which had been
constructed ―within Babri Masjid Oudh‖20. The grievance in the application
and the relief sought is indicated in this extract:
―Besides, when the Moazzin recites Azaan, the opposite party
begins to blow conch (Shankh/Naqoos). This has never
happened before. I would pray that your honour is the Judge
for both the parties. The opposite party should be restrained
from his unlawful act and after proper inquiry the newly
constructed Chabootra which had never existed, may kindly
be demolished and a bond be got executed from the opposite
party to the effect that he will not unlawfully and illegally
interfere in the Masjid property and will not blow conch
(Shankh/Naqoos) at the time of Azaan.‖
(vii) The application would indicate that the namaz was at the stage being
performed in the mosque. The Azaan of the Moazzin was met with the
blowing of conch shells by the Hindus. A contentious situation was arising.
Eventually, the Nihang Sikh was evicted from the site and a record was
maintained;
(viii) In or about 1877, another door to the outer courtyard was allowed to be
opened by the administration on the northern site, in addition to the
existing door on the east. The Deputy Commissioner declined to entertain
a complaint against the opening made in the wall of the Janmasthan21. The
order of the Deputy Commissioner records:

19 Exhibit 23
20 Exhibit 31
21 Exhibit 15
PART D
67
―A doorway has recently been opened in the wall of the
Janum-Asthan not at all in Baber‘s mosque, but in the wall
which in front is divided from the mosque by a railing. This
opening was necessary to give a separate route on fair days
to visitors to the Janum-Asthan. There was one opening
only, so the crush (sic rush) was very great and life was
endangered. I marked out the spot for the opening myself
so there is no need to depute any Europe officer. This
petition is merely an attempt to annoy the Hindu by
making it dependent on the pleasure of the mosque
people to open or close the 2nd door in which the
Mohammedans can have no interest.‖
(Emphasis supplied)
This was accepted by the Commissioner while dismissing an appeal on 13
December 1877 holding:
―As the door in question has opened by the Deputy
Commissioner in the interests of the public safety, I decline to
interfere. Appeal dismissed.‖
(ix) Justice Agarwal has alluded to the above documentary evidence including
in particular, the application of the Moazzin dated 30 November 1858.22
The application complained of the construction of a Chabutra near the
mihrab and mimbar on which a picture of an idol had been placed. The
complaint refers to the worship which was being conducted by lighting a
fire and conducting a puja. The letter notes that previously the symbol of
the Janmasthan was in existence for hundreds of years and Hindus had
performed puja. Justice Agarwal has noted that the genuineness of this
document has not been disputed by the plaintiff in the suit or of it having
been written by a person whose identity was not disputed. The learned
Judge held that the document contains admissions which prove that
Hindus had continuously offered prayers inside the disputed building

22 Exhibit 20
PART D
68
including the inner courtyard and at Ramchabutra and Sita Rasoi in the
outer courtyard. However, during the course of the proceedings Mr Mohd.
Nizamuddin Pasha, learned counsel for the plaintiffs in Suit 4 has
challenged the translation of the exhibit;
(x) Mohd Asghar instituted Suit 374/943 of 188223 against Raghubar Das,
Mahant, Nirmohi Akhara claiming rent for use of the Chabutra and Takht
near the door of Babri Masjid and for organizing the Kartik Mela on the
occasion of Ram Navami in 1288 Fasli. The Sub-Judge, Faizabad
dismissed the suit on 18 June 1883;
(xi) The construction of a railing in 1856-7 to provide a measure of separation
between the inner and outer courtyards led to the construction of a
platform by the Hindus in close proximity to the railing, in the outer
courtyard. The platform, called Ramchabutra, became a place of worship
for the Hindus;
(xii) On 29 January 1885, a suit was instituted in the court of the Munsif,
Faizabad by Mahant Raghubar Das, describing himself as ―Mahant
Janmasthan at Ayodhya‖. The sole defendant was the Secretary of State
for India in Council24. The relief which was sought in the suit was an
injunction restraining the defendant from obstructing the construction of a
temple over the Chabutra admeasuring 17×21 feet. The plaint stated that
the Janmasthan at Ayodhya is a place of religious importance and the
plaintiff is a Mahant of the place. Charan Paduka was affixed on the
Chabutra and a small temple built next to it was worshipped. The plaintiff

23 Exhibit 24
24 The certified copy of the plaint is Exhibit A-22 in Suit 1
PART D
69
stated that in April 1883, the Deputy Commissioner, Faizabad acting on
the objection of the Muslims, obstructed the construction of a temple. A
map was appended with the plaint showing the three domed structure
described as ―Masjid‖ within a boundary railing. The map appended to the
plaint indicated two entrances to the outer courtyard on the Northern and
Eastern sides. Mohd Asghar as Mutawalli of the mosque was impleaded
as second defendant to the suit. He filed a written statement on 22
December 1885 stating that Babur had created a waqf by constructing a
Masjid and above the door, the word ‗Allah‘ was inscribed. Babur was also
stated to have declared a grant for its maintenance. Mohd Asghar pleaded
that no permission had been granted for the use of the land in the
compound of the mosque. It was averred that there was no Chabutra from
the date of the construction of the mosque until 1856 and it was only
constructed in 1857. The prayer for the construction of a temple was
opposed; and
The above suit was dismissed by the Sub-Judge on 24 December 1885.
The Trial Court held that:
(a) The Chabutra was in possession of the plaintiff, which had not been
disputed by the second defendant;
(b) The area was divided by a railing wall separating the domed
structure from the outer courtyard where the Chabutra existed to
prevent any dispute between Hindus and Muslims;
(c) The erection of a railing was necessitated due to the riot in 1885
between Hindus and Muslims;
PART D
70
(d) The divide was made to so that Muslims could offer prayers inside
and the Hindus outside;
(e) Since the area to visit the mosque and the temple was the same but
the place where the Hindus offered worship was in their possession,
there could be no dispute about their ownership; and
(f) Though the person who was the owner and in possession is entitled
to make construction, grant of permission to construct a temple in
such close proximity to a mosque may lead to a serious dispute
between Hindus and Muslims and create a law and order problem.
The suit was dismissed on this ground.
Against the decree of the Trial Court, an appeal was filed by Mahant Raghubar
Das while cross-objections were filed by Mohd Asghar. The District Judge by a
judgment dated 18/26 March 1886 dismissed the appeal of the plaintiff. The
District Judge held that it was ―most unfortunate‖ that the Masjid should have
been built on the land especially held sacred by the Hindus but since the
construction had been made 358 years earlier, it was too late in the day to
reverse the process. The suit was dismissed on the ground that there was no
injury which could give a right of action to the plaintiff. On the cross-objections of
Mohd Asghar, the District Judge held that the finding of the Trial Court that the
plaintiff was the owner of the land in dispute was redundant and should be
expunged.
The second appeal was dismissed by the Judicial Commissioner of Oudh on 1
November 1886 on the ground that (i) there was nothing on record to show that
PART D
71
the plaintiff was the proprietor of the land in question; and (ii) it was inappropriate
to allow the parties to disturb the status quo especially when a mosque had been
in existence for nearly 350 years. The Judicial Commissioner held:
―The matter is simply that the Hindus of Ajodhya want to
create a new temple or marble baldacchino over the
supposed holy spot in Ajodhya said to be the birthplace of
Shri Ram Chandar. Now this spot is situated within the
precinct of the grounds surrounding a mosque erected some
350 years ago owing to the bigotry and tyranny of the
Emperor Babur, who purposely chose this holy spot
according to Hindu legend as the site of his mosque.
The Hindus seem to have got very limited rights of access to
certain spots within the precincts adjoining the mosque and
they have for a series of years been persistently trying to
increase those rights and to erect buildings on two spots in
the enclosure:
(a) Sita ki Rasoi
(b) Ram Chandar ki Janam Bhumi.
The Executive authorities have persistently refused these
encroachments and absolutely forbid any alteration of the
‗status quo‘.
I think this is a very wise and proper procedure on their part
and I am further of opinion that the Civil Courts have properly
dismissed the Plaintiff‘s claim.‖
The issue as to whether the findings in the suit will operate as res judicata will be
dealt with in a subsequent segment of the judgment.
The conflagration which took place in 1855-56 resulted in a brick wall and railing
being put up outside the mosque. This divided the courtyard into an inner portion
which lay within the railing and the outer portion beyond it. Situated in the outer
portion were places worshipped by the Hindus, among them being Ramchabutra
and Sita Rasoi. Two entrance gates (on the north and east) provided access to
the outer courtyard. Entry to the mosque was through the access points to the
PART D
72
outer courtyard.
D.2 Period between 1934-1949

  1. In 1934, there was another communal incident in the course of which
    damage was sustained to the mosque which was subsequently restored. The
    documentary evidence which has been brought on record shows that :
    (i) The colonial administration sanctioned the work of repair and renovation of
    the damaged structure of the mosque;
    (ii) A fine was imposed on the Hindus for the damage which was caused to
    the mosque;
    (iii) The work of restoration was entrusted to a Muslim contractor with whom
    there was an exchange of correspondence over the payment of unpaid
    bills and for verification of work done;
    (iv) This was a claim by the Pesh Imam of the mosque over the payment of the
    arrears of salary with the Mutawalli; and
    (v) Upon the work of repair, the administration permitted arrangements to be
    made for commencement of namaz.
    (In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have relied upon this
    documentary evidence as indicative of the status of the mosque and of the
    performance of namaz).
  2. A series of incidents took place between March and December 1949. On
    19 March 1949, a deed was executed by the Panches of Nirmohi Akhara
    PART D
    73
    purportedly to reduce into writing the customs of the Akhara. This document25
    included the following provision in regard to ―the temple of Janmabhoomi‖ of
    which the management was claimed to vest in the Akhara:
    ―Temple of Janam Bhoomi is situate in Mohalla Ram Ghat of
    City, Ayodhya which is under the Baithak of this Akhara and
    its whole management is trust upon to this Akhara. It stands
    in name of Mahant of Akhara as Mahant and Manager. This is
    the best well reputed, moorty of worship temple of Ayodhya.
    Being the birthplace of Lord Rama, it is the main temple of
    Ayodhya. The deity of Shri Ram Lalaji is installed there and
    there are other deities also.‖
  3. During the course of his arguments, Dr Rajeev Dhavan, learned Senior
    Counsel for the plaintiffs in Suit 4 urged that the communications exchanged
    between the officials of the State of Uttar Pradesh demonstrate that they had
    prior information about a carefully planned course of action of placing idols inside
    the mosque which led to the desecration of the mosque. Despite this, it has been
    submitted, the administration took no steps to prevent such an incident from
    taking place. Hence, in this backdrop, it is necessary to set out the events that led
    to the incident which took place on 22-23 December 1949:
    (i) On 12 November 1949, a police picket was posted in the area;
    (ii) On 29 November 1949, Kripal Singh who was the Superintendent of Police
    at Faizabad addressed a letter to K K Nayar, the Deputy Commissioner
    and District Magistrate, Faizabad stating:
    ―I visited the premises of Babri mosque and the Janm Asthan
    in Ajodhya this evening. I noticed that several ―Hawan
    Kunds‖ have been constructed all around the mosque.
    Some of them have been built on old constructions already
    existing there.‖

25 Exhibit 1 in Suit 3
PART D
74
I found bricks and lime also lying near the Janm Asthan. They
have a proposal to construct a very big Havan Kund
where Kirtan and Yagna on Puranmashi will be
performed on a very large scale. Several thousand
Hindus, Bairagis and Sadhus from outside will also
participate. They also intend to continue the present Kirtan
till Puranmashi. The plan appears to be to surround the
mosque in such a way that entry for the Muslims will be
very difficult and ultimately they might be forced to
abandon the mosque. There is a strong rumour, that on
puranmashi the Hindus will try to force entry into the
mosque with the object of installing a deity.‖
(Emphasis supplied)
(iii) On 10 December 1949, Mohd Ibrahim who was the Waqf Inspector
submitted a report to the secretary of the Masjid stating that Muslims were
being prevented from offering namaz Isha (the namaz at night) at the
mosque, due to the fear of Hindus and Sikhs and there was an
apprehension of danger to the mosque:
―On investigation in Faizabad city it was revealed that
because of the fear of Hindus and Sikhs no one goes into
the Masjid to pray Namaz Isha. If by chance any
passenger stays in the Masjid he is being threatened and
teased by the Hindus … (sic)….. There are number of
Numberdars … (sic)….. if any Muslim into the Masjid, he is
harassed and abused. I made on the spot enquires which
reveal that the said allegations are correct. Local people
stated that the Masjid is in great danger because of
Hindus … (sic)….. Before they try to damage the wall of
the Masjid, it seems proper the Deputy Commissioner
Faizabad may be accordingly informed , so that no
Muslim, going into the Masjid may be teased. The Masjid
is a Shahi monument and it should be preserved.‖
(Emphasis supplied)
(iv) On 16 December 1949, K K Nayyar addressed a communication to Govind
Narayan who was Home Secretary to the Government of Uttar Pradesh,
stating that there was a ―magnificent temple‖ at the site which had been
constructed by Vikramaditya, which was demolished by Babur for the
PART D
75
construction of a mosque, known as Babri Masjid. The letter stated that
building material of the temple was used in the construction of the mosque
and that a long time had elapsed before Hindus were again restored to the
possession of a site therein, at the corner of two walls. The letter recorded
a reference to recent happenings and stated:
―Some time this year probably in October or November some
grave-mounds were partially destroyed apparently by Bairagis
who very keenly resent Muslim associations with this shrine.
On 12.11.49 a police picket was posted at this place. The
picket still continues in augmented strength.
There were since other attempts to destroy grave-mounds.
Four persons were caught and cases are proceeding against
them but for quite some time now there have been no
attempts.
Muslims, mostly of Faizabad have been exaggerating these
happenings and giving currency to the report that graves are
being demolished systematically on a large scale. This is an
entirely false canard inspired apparently by a desire to
prevent Hindus from securing in this area possession or rights
of a larger character than have so far been enjoyed. Muslim
anxiety on this score was heightened by the recent Navami
Ramayan Path, a devotional reading of Ramayan by
thousands of Hindus for nine days at a stretch. This period
covered a Friday on which Muslims who went to say their
prayers at the mosque were escorted to and from safely by
the Police.
As far as I have been able to understand the situation the
Muslims of Ayodhya proper are far from agitated over this
issue with the exception of one Anisur Rahman who
frequently sends frantic messages giving the impression that
the Babri Masjid and graves are in imminent danger of
demolition.‖
Nayyar saw no apprehension of danger to the mosque in spite of the letter
of the Superintendent of Police which contained specific reference to the
plans which were afoot to enter the mosque and install idols within its
precincts;
PART D
76
(v) On the night between 22-23 December 1949, Hindu idols were
surreptitiously placed inside Babri Masjid by a group of 50-60 persons. An
FIR was lodged, complaining of the installation of idols inside the inner
courtyard of the disputed site. The FIR, complaining of offences under
Sections 147, 295, 448 of the Indian Penal Code was lodged at 7:00 pm
on 23 December 1949 by Ram Deo Dubey, Sub-Inspector in charge. The
FIR recorded that on information received from Mata Prasad, Constable
No. 7, the complainant had arrived at the disputed site at 7:00 am and
learned that a crowd of 50 or 60 persons had broken the locks placed on
the compound of the mosque and had placed the idols inside, besides
inscribing the names of Hindu deities on the walls. Thereafter, 5000 people
had gathered to perform Kirtan. It was alleged that Abhay Ram Das, Ram
Shukul Das, Sheo Darshan Dass and about 50 or 60 persons had
committed an act of trespass by entering the mosque and installing idols,
thereby desecrating the mosque.
The judgment of Justice S U Khan contains a reference to the report/diary
of the District Magistrate stating that on 23 December 1949, the crowd was
controlled by allowing two or three persons to offer bhog;
(vi) K K Nayyar opposed the direction of the state government to remove the
idols, fearing a loss of life. On 25 December 1949, K K Nayar recorded that
puja and bhog was offered as usual. In spite of the directions to remove
the idols, K K Nayar declined to do so stating that ―if Government still
insisted that removal should be carried out in the face of these facts, I
would request to replace me by another officer‖;
PART D
77
(vii) K K Nayar addressed two letters on 26 and 27 December 1949 to
Bhagwan Sahai, Chief Secretary, Government of U.P. stating that the
incident that took place on 23 December 1949 was ―unpredictable and
irreversible‖ on the basis of the above narration of incidents. On the basis
of the above documentary material, Dr Dhavan, learned Senior Counsel
submitted that:
(a) There was a mosque at the disputed site;
(b) The state authorities acknowledged the structure as a mosque and
consistently referred to it as a mosque in their internal
communications;
(c) From the report of the Waqf commissioner dated 10 December
1949, the following points emerge:
―(a) The temple of the Hindus was outside the
courtyard
Namaz was being read in the Babri Mosque as it
refers to the Muslim worshippers being harassed by
the members of the Hindu Community;‖
(d) The state authorities acknowledged the threat posed by the
members of the Hindu Community to the mosque and to the people
going to pray;
(e) The state authorities could foresee the potential desecration / attack
to the mosque and the worshippers, but took no steps to avert such
an incident;
(f) From the internal communication of the officials of the state, it is
clear that the desecration of the mosque was planned as the
Superintendent of Police had informed the Deputy Commissioner of
PART E
78
(g) the plan of the Hindus to force entry into the mosque with the
intention of installing an idol;
(h) The desecration of December 22-23, 1949 was a planned attack,
the seeds for which were sown with the ‗customs deed‘ dated March
19, 1949 when the temple of Ram Janmabhumi was for the first time
mentioned; and
(i) Officials of the state refused to thereafter remove the surreptitiously
installed idols despite orders from the State Government, further
confirming their alliance with the miscreants who desecrated the
mosque.
E. Proceedings under Section 145

  1. On 29 December 1949, a preliminary order was issued under Section 145
    of the CrPC 1898 by the Additional City Magistrate, Faizabad cum Ayodhya.
    Simultaneously, treating the situation as involving an emergency, an order of
    attachment was issued and the disputed site was directed to be entrusted to Sri
    Priya Datt Ram who was the Chairman of the Municipal Board. The order dated
    29 December 1949 is extracted below:
    ―Whereas I, Markendeya Singh, Magistrate First Class and
    Additional City Magistrate, Faizabad-cum-Ayodhya, am fully
    satisfied from information received from Police sources and
    from other credible sources that a dispute between Hindus
    and Muslims in Ayodhya over the question of rights of
    proprietorship and worship in the building claimed variously
    as Babari Masjid and Janam Bhoomi Mandir, situate at
    Mohalla Ram Kot within the local limits of my jurisdiction, is
    likely to lead to a breach of the peace.
    I hereby direct the parties described below namely:
    PART E
    79
    (1) Muslims who are bona fide residents of Ayodhya
    or who claim rights of proprietorship or worship in the
    property in dispute;
    (2) Hindus who are bona fide residents of Ahodhya or
    who claim rights of proprietorship or worship in the
    property in dispute;
    to appear before me on 17th day of January at 11 A.M. at
    Ayodhya Police Station in person or by pleader and put in
    written statements of their respective claims with regard to the
    fact of actual possession of the subject of dispute.
    And the case being one of the emergency I hereby attach the
    said buildings pending decision.
    The attachment shall be carried out immediately by Station
    Officer, Ayodhya Police Station, who shall then put the
    attached properties in the charge of Sri Priya Datt Ram,
    Chairman Municipal Board, Faizabad-cum-Ayodhya who shall
    thereafter be the receiver thereof and shall arrange for the
    care of the property in dispute.
    The receiver shall submit for approval a scheme for
    management of the property in dispute during attachment,
    and the cost of management shall be defrayed by the parties
    to this dispute in such proportions as may be fixed from time
    to time.
    This order shall, in the absence of information regarding the
    actual names and addresses of the parties to dispute to be
    served by publication in:
  2. The English Daily, ―The Leader‖ Allahabad,
  3. The Urdu Weekly ―Akhtar‖ Faizabad
  4. The Hindi Weekly ―Virakta‖ Ayodhya.
    Copies of this order shall also be affixed to the walls of the
    buildings in dispute and to the notice board at Ayodhya Police
    Station.
    Given under my hand and the seal of the court on this the
    twenty ninth day of December, 1949 at Ayodhya.‖
  5. The receiver took charge on 5 January 1950 and made an inventory of the
    properties which had been attached. The last namaz which was offered in the
    mosque was on 16 December 1949. The receiver made an inventory of the
    PART E
    80
    following articles:
    ―1. Idols of Thakur Ji
    1-(a) Two idols of Sri Ram Lala Ji, one big and another small.
    (b) Six idols of Sri Shaligram Ji.
    2 . A two feet high silver throne.
  6. One idol of Hanuman Ji.
    4 (a) One glass of German Silver.
    (b) One small glass of silver.
    (c) One big glass of silver
  7. One Garun bell.
  8. One incensory.
  9. One Arti vessel.
  10. One lamp stand
  11. ―Husra‖ and one sandal.
  12. Two big photographs of Ram Janki.
  13. Four flower pots.
  14. One (small) photograph of Badrinath Ji.
  15. One small photograph of Ramchandra Ji.
  16. Ornaments of Deity
    Two caps of Ramlala and one cap of Hanuman Ji.
    And eight robes of Deity.
  17. Building- Three domed building with Courtyard and
    boundary wall, which is bounded as under.
    North-Premises comprising Chhathi Courtyard and Nirmohi
    Akhara.
    South-Vacant land and ―Parikrama‖ (circumambulation path)
    East-‗Chabutara‘ (platform) of Ram temple under possession
    of Nirmohi Akhara, and Courtyard of temple premises.
    West-Parikrama‘ (circumambulation path)
  18. Small brass glass
  19. One bowl of ―Phool‖ (an alloy) for sandal.
  20. ―Panch Pas‖ and one brass plate.
    PART E
    81
  21. One small brass plate.
  22. One small wooden board.‖
    In the course of the proceedings of the civil suit before the Trial Court at
    Faizabad, the pleader, Shiv Shankar Lal, was appointed as a Commissioner to
    prepare a site plan of the locality and building. The Commissioner submitted a
    report on 25 May 1950, annexing two site plans which were numbered as Plan
    nos 1 and 2 which have been referred above in the earlier part of the judgment.
  23. The salient features noticed in the Commissioner‘s report are:
    (i) The existence of two entry gates to the disputed site, described as
    Hanumat Dwar and Singh Dwar;
    (ii) The presence of two black Kasauti stone pillars at the entry point of
    Hanumat Dwar containing engraved images of ‗Jai‘ and ‗Vijai‘;
    (iii) The images of a ‗Garud‘ flanked by lions on either side above Singh
    Dwar;
    (iv) An engraved stone image of a boar (‗varah‘) on the outer wall, to the
    south of Hanumat Dwar;
    (v) Ramchabutra admeasuring 17 X 21 feet containing a small temple
    with idols of Lord Ram and Janki;
    (vi) On the south-eastern corner, a semi-circular platform attached to
    the neem-pipal tree containing idols of Panchmukhi Mahadev,
    Parvati, Ganesh and Nandi;
    (vii) The platform called Sita Rasoi containing the foot prints of Lord
    Ram, Lakshman, Bharat and Shatrughan;
    (viii) The railing separating the inner and outer courtyards;
    PART F
    82
    (ix) The presence of twelve black Kasauti stone pillars supporting the
    three arches of the mosque which contained carvings of:
    (a) Lotus flowers;
    (b) Tandava nritya;
    (c) Lord Hanuman; and
    (d) Lord Krishna.
    (Carvings on the other pillars had been obliterated);
    (x) The idol of infant Lord Ram placed on a platform with two steps in
    the central portion of the domed structure;
    (xi) A parikrama around the disputed structure; and
    (xii) The existence of structures surrounding the disputed site including
    huts of sadhus/bairagis and the wall called ‗sita-koop‘.
    F. Points for determination
    The following points for determination arise in these appeals:
    (i) Whether Suits 3, 4 and 5 or any of them are barred by limitation
    (ii) Whether the decision in Suit 81/280 of 1885 will operate as res judicata
    in Suits 1, 3 and 5;
    (iii) (a) Whether a Hindu temple existed at the disputed site;
    (b) Whether the temple was demolished by Babur or at his behest by
    his commander Mir Baqi in 1528 for the construction of the Babri
    Masjid;
    PART F
    83
    (c) Whether the mosque was constructed on the remains of and by
    using the materials of the temple; and
    (d) What, if any are the legal consequences arising out of the
    determination on (a)(b) and (c) above;
    (iv) Whether the suit property is according to the faith and belief of the
    Hindus since time immemorial the birth-place of Lord Ram;
    (v) (a) Whether the first and the second plaintiffs in Suit 5 are juristic
    persons;
    (b) Whether the third plaintiff was entitled to represent the first and
    second plaintiffs as next friend;
    (vi) (a) Whether Nirmohi Akhara has established its claim of being a shebait
    of the deity of Lord Ram in the disputed premises;
    (b) If (a) is in the affirmative, whether the objection of Nirmohi Akhara to
    the maintainability of Suit 5 is valid;
    (vii) Whether during the intervening night of 22/23 December 1949,
    Hindu idols were installed under the Central dome of Babri Masjid
    as pleaded in the plaint in Suit 4;
    (viii) (a) Whether it is open to the Court to determine if the three domed
    structure which existed at the disputed site prior to 6 December
    1992 was a mosque in accordance with Islamic tenets;
    (b) If the answer to (a) is in the affirmative, whether the three domed
    structure at the disputed site was constructed in accordance with
    Islamic tenets;
    PART F
    84
    (ix) (a) Whether there was a dedication of the three domed structure as a
    waqf at the time of its construction;
    (b) In the alternative to (a) above, whether there is a waqf by public
    user as claimed by the plaintiffs in Suit 4;
    (x) Whether the plaintiffs in Suit 4 have established in the alternative
    their case of adverse possession;
    (xi) Whether the Muslims and or the Hindus have established the claim
    of worship and a possessory title over the disputed property;
    (xii) Whether the plaintiffs in Suit 4 have established their title to the
    disputed property;
    (xiii) Whether the plaintiff in Suit 5 have established their title to the
    disputed property;
    (xiv) Whether the High Court was justified in passing a preliminary
    decree for a three way division of the disputed property in equal
    shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the
    plaintiffs of Suit 5;
    (xv) Whether the plaintiff in Suit 1 is entitled to the reliefs as claimed in
    the suit; and
    (xvi) What, if any, relief ought to be granted in Suits 1, 3, 4 and 5
    These points will be analysed and dealt with in the course of this judgment.
    Before analysing the issues in the individual suits, it would be appropriate to
    discuss certain matters in dispute at the forefront, since they traverse the gamut
    of the entire case.
    PART G
    85
    G. The three inscriptions
  24. The case of the Sunni Central Waqf Board and other plaintiffs in Suit 4 is
    that in the town of Ayodhya ―there exists an ancient historic mosque commonly
    known as Babri Masjid built by Emperor Babur more than 433 years ago, after his
    conquest of India and his occupation of the territories including the town of
    Ayodhya‖. The mosque, it has been pleaded, was for the use of Muslims in
    general as a place of worship and for the performance of religious ceremonies.
    The mosque and the adjoining graveyard are stated to vest ―in the Almighty‖ and
    the mosque since the time of its inscription is stated to have been used by
    Muslims for offering prayers. Thus, the plaintiffs have come forth with a positive
    case in regard to the:
    (i) Existence of a mosque;
    (ii) Construction of the mosque by Babur 433 years prior to the institution of
    the Suit in 1961;
    (iii) Construction of the mosque as a place of worship and for religious
    ceremonies; and
    (iv) Use of the mosque since its construction for the purpose of offering
    prayers.
  25. Justice Sudhir Agarwal recorded in his judgment that it is accepted by the
    counsel appearing on behalf of the Sunni Central Waqf Board that the sole basis
    for determining the date of the construction of the mosque and correlating it to
    Babur consists of the inscriptions stated to have been installed on the mosque as
    referred to in the gazetteers and other documents. In paragraph 1435, the
    PART G
    86
    learned Judge observed:
    ―Broadly, we find and in fact it is even admitted by Sri Jilani
    that the sole basis for determining the period of construction
    of the disputed building and to co-relate it with Emperor Babar
    is/are the inscription(s) said to be installed in the disputed
    building referred to in certain Gazetteers etc.‖
    Now both before the High Court and during the course of the present
    proceedings, there has been a debate on whether the texts of the alleged
    inscriptions on the mosque have been proved. Mr P N Mishra, learned Counsel
    appearing on behalf of the Akhil Bharatiya Shri Ram Janmabhumi Punrudhar
    Samiti has questioned the authenticity of the inscriptions. He sought to cast doubt
    on whether the mosque was constructed in 1528 A.D. by or at the behest of
    Babur.
  26. The first document relied on is the text by Fuhrer titled ―The Sharqi
    Architecture of Jaunpur with notes on Zafarabad, Sahet-Mahet and other
    places in the Northern-Western Provinces and Oudh26. The original edition of
    the book was printed in 1889 and there is a reprint in 1994 by the ASI. In Chapter
    X, there is a reference to three inscriptions bearing nos XL, XLI, and XLII. It is
    from these three inscriptions that Fuhrer formed an opinion that the Babri
    mosque was constructed at Ayodhya in 1523 A.D or A.H. 930. Inscription XL in
    Arabic is over the central mihrab and furnishes the Kalimah twice in the following
    words:
    ―There is no god but Allah, Muhammad is His Prophet.‖

26 Führer, Alois Anton, Edmund W. Smith, and James Burgess, The Sharqi architecture of Jaunpur: with notes on
Zafarabad, Sahet-Mahet and other places in the North-Western provinces and Oudh (1994)
PART G
87
Inscription XLI was found on the mimbar and was written in Persian. The
inscription as translated in English reads thus:
―1. By order of Babar, the king of the world,

  1. This firmament-like, lofty,
  2. Strong building was erected.
  3. By the auspicious noble Mir Khan.
  4. May ever remain such a foundation,
  5. And such a king of the world.‖
    Inscription XLII was found above the entrance door. Also, in Persian, the
    inscription has been translated thus:
    ―1. In the name of God, the merciful, the element.
  6. In the name of him who ……; may God perpetually keep
    him in the world.
    3………..
  7. Such a sovereign who is famous in the world, and in
    person of delight for the world.
  8. In his presence one of the grandees who is another king of
    Turkey and China.
  9. Laid this religious foundation in the auspicious Hijra 930.
  10. O God ! May always remain the crown, throne and life with
    the king.
  11. May Babar always pour the flowers of happiness; may
    remain successful.
  12. His counsellor and minister who is the founder of this fort
    masjid.
  13. This poetry, giving the date and eulogy, was written by the
    lazy writer and poor servant Fath-allah-Ghorl, composer.‖
    After adverting to the inscriptions, Fuhrer notes:
    ―The old temple of Ramachandra at Janamasthanam must
    have been a very fine one, for many of its columns have been
    used by the Musalmans in the construction of Babar’s masjid.
    These are of strong, close-grained, dark-coloured or black
    stone, called by the natives kasauti, ―touch-stone slate,‖ and
    carved with different devices. They are from seven to eight
    feet long, square at the base, centre and capital, and round or
    octagonal intermediately.‖
    PART G
    88
  14. The second piece of documentary evidence in which these inscriptions are
    purportedly translated the ―Babur-Nama‖. The translation by A S Beveridge was
    first published in 192127. Apart from the book, extracts of some of its pages were
    exhibited by the parties to the proceedings.
    Appendix (U) refers to two inscriptions; one inside and another outside the
    mosque. Photocopies of the pages of appendix (U) were marked as appendix T3
    in Suit 4.
  15. Beveridge obtained the text of the inscription through the Deputy
    Commissioner of Faizabad on a request made by her spouse. Beveridge notes
    that while reproducing the text she had made a few changes. The text of the
    inscription inside the mosque, as quoted by Beveridge is as follows:
    ―(1) By the command of the Emperor Babur whose justice is
    an edifice reaching up to the very height of the heavens.
    (2) The good-hearted Mir Baqi built this alighting place of
    angels.
    (3) It will remain an everlasting bounty, and (hence) the date
    of its erection became manifest from my words: It will remain
    an everlasting bounty.‖
    The text of the inscription outside the mosque is thus:
    ―1. In the name of One who is Great (and) Wise (and) who is
    Creator of the whole world and is free from the bondage of
    space.
  16. After His praise, peace and blessings be on Prophet
    Muhammad, who is the head of all the Prophets in both the
    worlds.

27 William Erskine, John Leyden, and Annette Susannah Beveridge, the B bur-nama in English (Memoirs of
B bur), London: Luzac & Co. (Reprint in 2006 by Low Price Publications, Delhi)
PART G
89

  1. In the world, it is widely talked about Qalandar Babur that
    he is a successful emperor.‖
    Beveridge stated that the second inscription outside the mosque was
    incomplete.
  2. The third set of texts in support of the inscriptions is published in
    ―Epigraphia Indica-Arabic-Persian Supplement (In continuation of
    Epigraphia Indo-Moslemica) 1964 and 1965‖
    28 (reprinted in 1987). This has
    been published by the Director General, ASI and contains a reference to the
    inscriptions of Babur. The text is attributed to Maulvi M Ashraf Husain and is
    edited by Z A Desai. The introductory note to the edition states:
    ―A rough draft of this article by the author, who was my
    predecessor, was found among sundry papers in my office. At
    the time of his retirement in 1953, he had left a note saying
    that it might be published after revision by his successor.
    Consequently, the same is published here after incorporation
    of fresh material and references and also, extensive revision
    and editing. The readings have been also checked, corrected
    and supplemented with the help of my colleague, Mr.
    S.A.Rahim, Epigraphical Assistant,-Editor.‖
    The text contains the following description in regard to the construction of Babri
    Masjid:
    ―The Baburi-Masjid, which commands a picturesque view
    from the riverside, was constructed according to A. Fuhrer in
    A.H. 930 (1523-24 A.D.) but his chronology, based upon
    incorrect readings of inscriptions supplied to him, is
    erroneous. Babur defeated Ibrahim Lodi only in A.H. 933
    (1526 A.D.), and moreover, the year of construction, recorded
    in two of the three inscriptions studied below, is clearly A.H.
    935 (1528-29 A.D.). Again, it was not built by Mir Khan as
    stated by him. The order for building the mosque seems to

28 Epigraphia Indica, Arabic and Persian Supplement (in continuation of Epigraphia Indo-Moslemica) (Z A Desai
Eds), Archaeology Survey of India (1987)
PART G
90
have been issued during Babur’s stay at Ajodhya in A.H. 934
(1527-28 A.D.), but no mention of its completion is made in
the Babur Nama. However, it may be remembered that his
diary for the year A.H. 934 (1527-28 A.D.) breaks off abruptly,
and throws the reader into the dark in regard to the account of
Oudh.‖
The text also provides an account of the manner in which the author obtained an
inked rubbing of one of the inscriptions from Sayyid Badru‘l Hasan of Faizabad:
―The mosque contains a number of inscriptions. On the
eastern facade is a chhajja, below which appears a Quranic
text and above, an inscription in Persian verse. On the central
mihrab are carved religious texts such as the Kalima (First
Creed), etc. On the southern face of the pulpit was previously
fixed a stone slab bearing a Persian inscription in verse.
There was also another inscription in Persian verse built up
into the right hand side wall of the pulpit. Of these, the lastmentioned two epigraphs have disappeared. They were
reportedly destroyed in the communal vandalism in 1934
A.D., but luckily, I managed to secure an inked rubbing of one
of them from Sayyid Badru’l Hasan of Fyzabad. The present
inscription, restored by the Muslim community, is not only in
inlaid Nasta‘liq characters, but is also slightly different from
the original, owing perhaps to the incompetence of the
restorers in deciphering it properly.
The readings and translations of the historical epigraphs
mentioned above, except in the case of one, were published
by Fuhrer and Mrs. Beveridge, but their readings are so
incomplete, inaccurate and different from the text that their
inclusion in this article is not only desirable but also
imperative.
The epigraph studied below was inscribed on a slab of stone
measuring about 68 by 48 cm., which was built up into the
southern side of the pulpit of the mosque, but is now lost, as
stated above. It is edited here from the estampage obtained
from Sayyid Badru’l Hasan of Fyzabad. Its three-line text
consists of six verses in Persian, inscribed in ordinary Naskh
characters within floral borders. It records the construction of
the mosque by Mir Baqi under orders from emperor Babur
and gives the year A.H. 935 (1528-29 A.D.) in a chronogram.‖
PART G
91
The author states that on the southern side of the pulpit of the mosque was an
inscription fixed on a slab of stone measuring 68 X 48 cm but the original was
lost. What is quoted is the version obtained from the inked rubbing noted above.
The text of the first inscription was thus:
―(1) By the order of king Babur whose justice is an edifice,
meeting the palace of the sky (i.e. as high as the sky).
(2) This descending place of the angels was built by the
fortunate noble Mir Baqi.
(3) It will remain an everlasting bounty, and (hence) the date
of its erection became manifest from my words: It will remain
an everlasting bounty.‖
As regards the second inscription, the judgment of Justice Sudhir Agarwal notes:
―1449. Fuhrer‘s inscription no. XLI which he mentions that the
same was found inside the mosque on the mimbar (right hand
side of the disputed building) has been termed as second
inscription by Maulvi F. Ashraf Hussain. It consists of three
couplets arranged in six lines. He (Hussain) clearly admits
non existence of the said inscription by observing ―the
epigraphical Tablet‖ which was built up into right hand side
wall of the pulpit, does not exist now, and, therefore, the text
of the inscription is quoted here from Furher‘s work, for the
same reason, its illustration could not be given.‖ Husain/Desai
however, did not agree to the reading of the inscription by
Fuhrer and observed that Furher‘s reading does not appear
free from mistakes.‖
The text of the third inscription is as follows:
―(1) In the name of Allah, the Beneficent, the Merciful. And in
Him is my trust.
(2) In the name of One who is Wise, Great (and) Creator of all
the universe (and) is spaceless.
After His praise, blessings be upon the Chosen one (i.e. the
Prophet), who is the head of prophets and best in the world.
The Qalandar-like (i.e. truthful) Babur has become celebrated
(lit. a story) in the world, since (in his time) the world has
achieved prosperity.
PART G
92
(3) (He is) such (an emperor) as has embraced (i.e.
conquered) all the seven climes of the world in the manner of
the sky.
In his court, there was a magnificent noble, named Mir Baqi
the second Asaf, councillor of his Government and
administrator of his kingdom, who is the founder of this
mosque and fort-wall.
(4) O God, may he live for ever in this world, with fortune and
life and crown and throne. The time of the building is this
auspicious date, of which the indication is nine hundred (and)
thirty five (A.H. 935=1528-29 A.D.).
Completed was this praise of God, of Prophet and of king.
May Allah illumine his proof. Written by the weak writer and
humble creature, Eathu’llah Muhammad Ghori.‖
As regards the inscriptions noted by Fuhrer, certain significant aspects need to
be noted. While the second inscription contains a reference to the order of Babur
for the construction of the mosque, construction is attributed to Mir Khan (not Mir
Baqi). The third inscription refers to the foundation of the construction of the
mosque being laid in Hijri 930 which corresponds to 1523 A.D. This is prior to the
invasion by Babur and the battle at Panipat which resulted in the defeat of
Ibrahim Lodhi. As regards the work of Beveridge, it is evident that she had
neither seen the original text nor had she translated the text of the inscriptions
herself. Beveridge obtained a purported text of the inscriptions through her
spouse from the Deputy Commissioner, Faizabad. Beveridge claimed that she
received a copy of the text through correspondence initiated by her spouse who
was an ICS officer in the colonial government. She had neither read the original
nor is there anything to indicate that she was in a position to translate it.
Beveridge states that she made ―a few slight changes in the term of expression‖.
What changes were made by Beveridge has not been explained. According to
her, the text of the two inscriptions was incomplete and was not legible. The text
PART G
93
provided by Fuhrer shows that the construction of the mosque was not in 1528
A.D. Inscription XLI mentions the name of Mir Khan while inscription XLII refers to
the construction of the mosque as Hijri 930.

  1. Justice Sudhir Agarwal while adverting to the work of Ashraf Husain and Z
    A Desai took serious note of the ―fallacy and complete misrepresentation‖ of the
    author in publishing a text under the authority of the ASI without regard for its
    accuracy, correctness and genuineness:
    ―1463. We are extremely perturbed by the manner in which
    Ashraf Husain/Desai have tried to give an impeccable
    authority to the texts of the alleged inscriptions which they
    claim to have existed on the disputed building though
    repeatedly said that the original text has disappeared. The
    fallacy and complete misrepresentation on the part of author
    in trying to give colour of truth to this text is writ large from a
    bare reading of the write up. We are really at pains to find that
    such blatant fallacious kind of material has been allowed to
    be published in a book published under the authority of ASI,
    Government of India, without caring about its accuracy,
    correctness and genuineness of the subject.
    …Both these inscriptions i.e., the one claimed to be on the
    southern face of the pulpit and the other on the right hand
    side wall of the pulpit are said to be non-available by
    observing ―of these the last mentioned two epigraphs have
    disappeared‖. The time of disappearance according to Maulvi
    Ashraf Husain was 1934 A.D. when a communal riot took
    place at Ayodhya. However, he claimed to have got an inked
    rubbing on one of the two inscriptions from Syed Badrul
    Hasan of Faizabad. The whereabouts of Syed Badrul Hasan,
    who he was, what was his status, in what way and manner he
    could get that ink rubbing of the said inscription and what is
    the authenticity to believe it to be correct when original text of
    the inscription are not known. There is nothing to co-relate the
    text he got as the correct text of the inscription found in the
    disputed building claimed to have lost in 1934.‖
    The High Court observed that two inscriptions, those on the southern face of the
    pulpit and on the wall on the right of the pulpit were not available. According to
    PART G
    94
    Ashraf Husain, the epigraphs disappeared in 1934 at the time of the communal
    riot. However, reliance was sought to be placed on an alleged ―inked rubbing‖
    without explaining the identity or whereabouts of the person from whom it was
    obtained. The criticism of the High Court is not without basis. The identity of the
    individual from whom the inked rubbings were obtained was not explained. Nor
    was there any explanation about the manner in which he had in turn obtained it.
    There was indeed nothing to co-relate the text which that individual had obtained
    with the translation in the text compiled by Ashraf Husain and Z A Desai. The
    High Court observed:
    ―1464…When the original was already lost and there was
    nothing to verify the text of restored inscription with the
    original, neither the restored one can be relied upon nor is it
    understandable as to how he could have any occasion to
    compare the restored one with the alleged… original…‖
    In this background, the High Court observed:
    ―1466…The text, description and whatever had been set up
    by Ashraf Husain in respect of the above inscription is
    unbelievable and lacks trustworthiness. We are constrained
    to observe at this stage that in the matter of historical events
    and that too, when it bears a religious importance and the
    matter has also seen serious disputes between two
    communities, the persons who are connected with history…
    must behave responsibly and before making any write up,
    should check up, cross check and verify very carefully what
    they are writing since the consequences of their write up may
    be dangerous and irreparable.‖
  2. A fourth version of the inscriptions emerged pursuant to a direction of the
    Civil Judge dated 26 March 1946 in Shia Central Waqf Board v Sunni Central
    Board of Waqf29
    . In pursuance of those directions, a person by the name of Sr.
    A Akhtar Abbas is stated to have read an inscription and prepared his inspection

29 Regular Suit No 29 of 1945
PART G
95
note. The High Court, however, noted that the text as reproduced in the judgment
dated 30 March 1946 states that in the first inscription, the words are ―by the
order of Shah Babar, Amir Mir Baki built the resting place of angels in 923 A.H.
i.e. 1516-17 A.D‖. In respect of the second inscription, there is a reference to ―Mir
Baki of Isphahan in 935 A.H. i.e. 1528-29 AD‖. The High Court observed that it
was not apprised of whether in the entire Babur-Nama, there was a reference to
any Mir Baki Isphahani though, there was a reference to Baki Tashkendi. Besides
one of the two tablets was new and had been replaced for the original tablet
which had been demolished during the communal riots of 1934. On the above
state of the evidence, the High Court doubted the genuineness and authenticity
of the transcripts of the inscriptions which were relied upon before it.

  1. At this stage, it is necessary to make a reference to the ―Tuzuk-i-Babri‖
    30
    .
    The Babur-Nama contains the daily diary of Babur commencing from 899 Hijri
    (1494 AD). Out of the life span of Babur, a description of eighteen years is
    available over different periods. Babur came to India in 1526 A.D. The description
    available until his death is for the following periods, (noted by Justice Sudhir
    Agarwal):
    ―1487…
  2. From 1 Safar 932 Hijri (17 November 1525 AD) till 12
    Rajab 934 Hijri (2nd April 1528 AD)
  3. From 3 Muharram 934 Hijri (18th September 1528 AD) till 3
    Moharram 936 Hijri (7th September 1529 AD).‖
    The records for the period from 2 April 1528 till 17 September 1528 are missing.
    Out of this period, the period from 2 April 1528 to 15 September 1528 was of 934

30 Rashid Akhtar Nadvi, Tuzk e Babri, Lahore: Sang e Mil (1995)
PART G
96
Hijri while the period from 15 September 1528 to 17 September 1528 was of 935
Hijri. Justice Sudhir Agarwal noted in the High Court that the crucial year was 935
Hijri and the missing record was only of three days.
Babur defeated Ibrahim Lodhi at Panipat on 20 April 1526. On 28 March 1528,
Babur reached the junction of the rivers Ghaghara and Saryu. After a reference
to the date 2 April 1528, there is a break until 15 September 1528.

  1. Beveridge‘s translation of Babur-Nama refers to the employment of
    artisans in the construction of buildings at several places including at Agra and
    Gwalior:
    ―1533… Another good thing in Hindustan is that it has
    unnumbered and endless workmen of every kind. There is a
    fixed caste (jam’i) for every sort of work and for everything,
    which has done that work or that thing from father to son till
    now. Mulla Sharaf, writing in the Zafar-nama about the
    building of Timur Beg’s Stone Mosque, lays stress on the fact
    that on it 200 stone-cutters worked, from Azarbaijan, Fars,
    Hindustan and other countries. But 680 men worked daily on
    my buildings in Agra and of Agra stone-cutters only; while
    1491 stone-cutters worked daily on my buildings in Agra,
    Sikri, Biana, Dulpur, Gualiar and Kuil. In the same way there
    are numberless artisans and workmen of every sort in
    Hindustan.‖
    In this context, Justice Agarwal observed:
    ―1534. There is mention of buildings in Babur-Nama at
    different places including temple of Gwalior, mosque at Delhi,
    Agra, Gwalior and other several places but it is true that
    neither there is mention of demolition of any religious place by
    Babar in Awadh area nor there is anything to show that he
    either entered Ayodhya or had occasion to issue any direction
    for construction of a building and in particular a Mosque at
    Ayodhya.‖
    PART G
    97
    The High Court recorded the submission made before it by Mr Jilani, counsel for
    the Sunni Central Waqf Board, in paragraph 1577 of the judgment that since
    Babur did not enter Ayodhya himself, there was no question of a demolition of a
    temple by him and a construction of a mosque. The absence in Babur-Nama of a
    reference to the construction of a mosque has been relied upon as a factor to
    discredit the inscriptions which have been analysed earlier. This line of enquiry
    must be read with the caution which must be exercised while drawing negative
    inferences from a historical text.
  2. Mr P N Mishra, learned Counsel adverted to the work of Niccolao Manucci
    titled ―Indian Texts Series-Storia Do Mogor or Mogul India 1653-1708‖
    31
    ,
    translated in English by William Irvine. Manucci identifies ―the chief temples
    destroyed‖ by Aurangzeb, among them being:
    (i) Maisa (Mayapur);
    (ii) Matura (Mathura);
    (iii) Caxis (Kashi); and
    (iv) Hajudia (Ajudhya).
    Manucci was a traveller who had visited India during the reign of Aurangzeb.
    Besides, the work of Manucci, there is the ―Ain-e-Akbari‖
    32 written by Abul Fazal
    Allami. Ain-e-Akbari deals with the province of Oudh and refers to Ayodhya and
    its association with Lord Ram. The text refers to ―two considerable tombs of six
    and seven yards in length‖ near the city. The text identified several sacred places

31 Manucci, Niccol , and William Irvine, Storia do Mogor; or, Mogul India, 1653-1708, J. Murray: London (1907).
32 Ab al-Faz l ibn Mub rak and H. Blochmann, The Ain i Akbari, 1873, Calcutta: Rouse (Reprint of 1989
published by Low Price Publications, Delhi)
PART G
98
of pilgrimage. It specifically speaks of Ayodhya where during the month of
Chaitra, a religious festival is held. Mr Mishra urged that there is no reference in
the Ain-e-akbari to the construction of a mosque at Ayodhya. The text refers to
certain cities as being dedicated to the divinities, among them being Kashi and
Ayodhya. By its order dated 18 March 2010, the High Court permitted the above
text to be relied on under the provisions of Section 57(13) of the Evidence Act
1872.

  1. Rebutting the above submissions principally urged by Mr P N Mishra and
    Mr Mohd Nizamuddin Pasha, learned Counsel appeaing on behalf of the plaintiffs
    in Suit 4 urged that an unnecessary confusion was sought to be created over the
    identity of Mir Baqi. He submitted that in the Babur-Nama, he is known by the
    following titles / suffixes:
    (j) Baqi Sharghwal – ―high official of Central Asian sovereigns, who is
    supreme over all qazis and mullah‖. (See ―Baburnama‖, translated
    by A.S. Beveridge, 1921, p. 463);
    (ii) Baqi Mingbashi – Commander of a thousand men (See
    ―Baburnama‖, translated by A.S. Beveridge, 1921, p. 590); and
    (iii) Baqi Tashkinti – Hailing of Tashkent (See ―Baburnama‖,
    translated by A.S. Beveridge, 1921, p. 601, 684).
    Mr Pasha urged that the inscriptions above the door of Babri Masjid read as Mir
    Baqi Asif Sani, which the District Judge, Faizabad misread as ‗Isfahani‘ in his
    order of 1946 in the suit between the Shia Waqf Board and Sunni Waqf Board.
    PART G
    99
  2. Having set out the material which was presented before the High Court in
    support of the plea that the mosque was constructed in 1528 by Mir Baki, on the
    instructions of Emperor Babur following the conquest of the sub-continent, it
    becomes necessary to analyse the conclusions which have been arrived at by
    the three judges of the High Court :
    (i) Justice S U Khan
    Justice S U Khan held:
    ―Muslims have not been able to prove that the land belonged
    to Babur under whose orders the mosque was constructed‖
    Moreover, the learned judge held that the inscriptions on the mosque as
    translated by Fuhrer, Beveridge and Z A Desai were not authentic and hence,
    on the basis of these inscriptions alone, it could not be held either that the
    disputed building was constructed by or under the orders of Babur or that it was
    constructed in 1528. Justice S U Khan specifically observed that:
    ―In this regard detailed reasons have been given by my
    learned brother S. Agarwal, J. with which I fully agree‖.
    However, in the course of his conclusions titled as ―Gist of the Findings‖ Justice
    Khan held:
    ― 1. The disputed structure was constructed as mosque by or
    under orders of Babar.
  3. It is not proved by direct evidence that premises in dispute
    including constructed portion belonged to Babar or the person
    who constructed the mosque or under whose orders it was
    constructed.‖
    The conclusion in point 1 in the above extract of the conclusions is contrary to the
    earlier finding that it could not be held either that the mosque was constructed by
    or under the orders of Babur or that it was constructed in 1528. The finding on
    PART G
    100
    point 1 is also contrary to the specific observation that Justice S U Khan was in
    agreement with the decision of Justice Sudhir Agarwal in regard to the lack of
    authenticity of the inscriptions.
    (ii) Justice Sudhir Agarwal
    Justice Sudhir Agarwal held:
    ―1679… it is difficult to record a finding that the building in
    dispute was constructed in 1528 AD by or at the command of
    Babar since no reliable material is available for coming to the
    said conclusion. On the contrary the preponderance of
    probability shows that the building in dispute was constructed
    at some later point of time and the inscriptions thereon were
    fixed further later but exact period of the two is difficult to
    ascertain…
  4. In the absence of any concrete material to show the
    exact period and the reign of the concerned Mughal emperor
    or anyone else during which the above construction took
    place, we are refraining from recording any positive finding on
    this aspect except that the building in dispute, to our mind,
    may have been constructed much later than the reign of
    Emperor Babar and the inscriptions were fixed further
    thereafter and that is why there have occurred certain
    discrepancies about the name of the person concerned as
    also the period. The possibility of change, alteration or
    manipulation in the inscriptions cannot be ruled out.‖
    While answering the issues framed in the suits, Justice Agarwal held:
    ―1682… (A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are
    answered in negative. The defendants have failed to prove
    that the property in dispute was constructed by… Emperor
    Babar in 1528 AD. Accordingly, the question as to whether
    Babar constructed the property in dispute as a ‘mosque’ does
    not arise and needs no answer.
    (B) Issue No.1(a) (Suit-4) is answered in negative. The
    plaintiffs have failed to prove that the building in dispute was
    built by Babar. Similarly defendant no.13 has also failed to
    prove that the same was built by Mir Baqi. The further
    question as to when it was built and by whom cannot be
    replied with certainty since neither there is any pleading nor
    PART G
    101
    any evidence has been led nor any material has been placed
    before us to arrive at a concrete finding on this aspect.
    However, applying the principle of informed guess, we are of
    the view that the building in dispute may have been
    constructed, probably, between 1659 to 1707 AD i.e. during
    the regime of Aurangzeb.‖
    In the last part of the above findings, the Judge has recorded that it was not
    possible to enter a finding of fact with any certainty as to when the structure was
    constructed in the absence of pleading or evidence. The ―informed guess‖ at the
    end of the above observation that the structure was probably constructed by
    Aurangzeb between 1659-1707 cannot be placed on the pedestal of a finding of
    fact.
    (iii) Justice D V Sharma
    Justice DV Sharma in the course of his decision arrived at the finding that:
    ―Thus, on the basis of the opinion of the experts, evidence on
    record, circumstantial evidence and historical accounts…, it
    transpires that the temple was demolished and the mosque
    was constructed at the site of the old Hindu temple by Mir
    Baqi at the command of Babur. Issue Nos. 1 and 1(a) are
    decided in favour of the defendants and against the plaintiffs.‖
  5. The High Court entered into the controversy surrounding the authenticity of
    the inscriptions on the basis of the hypothesis that the inscriptions were the sole
    basis for asserting that the mosque had been constructed by Babur. Justice
    Agarwal came to the conclusion that the inscriptions were not authentic and
    hence a finding that the mosque was constructed by or at the behest of Babur in
    1528 A.D. could not be arrived at. Justice S U Khan‘s reasoning in the text of the
    judgment was in accord with the view of Justice Agarwal but then, as we have
    noted, his ultimate conclusion that the disputed structure was constructed as a
    PART G
    102
    mosque by or under the orders of Babur is not consistent with the earlier part of
    the reasons. Justice Sharma held that the mosque was constructed by Mir Baqi
    at the command of Babur.
  6. The basic issue, however, is whether it was necessary for the High Court
    to enter into this thicket on the basis of the pleadings of the parties. In the suit
    instituted by the Sunni Central Waqf Board (Suit 4), the case is that the mosque
    was constructed by Babur after his conquest and occupation of the territories,
    including the town of Ayodhya. Significantly, Suit 5 which has been instituted on
    behalf of Lord Ram and Ram Janmabhumi through a next friend also proceeds
    on the basis that the mosque was constructed by Mir Baqi who was the
    commander of Babur‘s forces. The pleading in the plaint in Suit 5 reads thus:
    ―23. That the books of history and public records of
    unimpeachable authenticity, establish indisputably that there
    was an ancient Temple of Maharaja Vikramaditya‘s time at Sri
    Rama Janma Bhumi, Ayodhya. That Temple was destroyed
    partly and an attempt was made to raise a mosque
    thereat, by the force of arms, by Mir Baqi, a commander
    of Babar‘s hordes. The material used was almost all of it
    taken from the Temple including its pillars which were
    wrought out of Kasauti or touch-stone, with figures of Hindu
    gods and goddesses carved on them. There was great
    resistance by the Hindus and many battles were fought from
    time to time by them to prevent the completion of the mosque.
    To this day it has no minarets, and no place for storage ov f
    water for Vazoo. Many lives were lost in these battles. The
    last such battle occurred in 1855. Sri Rama Janma Bhumi,
    including the building raised during the Babar‘s time by
    Mir Baqi, was in the possession and control of Hindus at that
    time.‖ (Emphasis supplied)
    PART G
    103
    Immediately following the text of the pleading in the above extract, is a reference
    to the 1928 edition of the Faizabad Gazetteer. The text of the gazetteer is
    incorporated in the plaint and reads thus:
    ―23…In 1528 Babar came to Ayodhya and halted here for a
    week. He destroyed the ancient temple and on its site built a
    mosque, still known as Babar‘s mosque. The materials of the
    old structure were largely employed, and many of the
    columns are in good preservation, they are of close-grained
    black stone, called by the natives kasauti and carved with
    various device.‖
  7. The pleading in Suit 5 demonstrates that even according to the plaintiffs,
    the mosque was built by Mir Baqi, a commander of Babur‘s forces, during the
    time of Babur. Hence, both in the pleading in Suit 4 and in Suit 5, there was
    essentially no dispute about the fact that the mosque was raised in 1528 A.D. by
    or at the behest of Babur. The case in Suit 5 is that the Hindus retained
    possession and control over the mosque. This is a separate matter altogether
    which has to be adjudicated upon. But, from the pleadings both in Suit 4 and in
    Suit 5, there appears to be no dispute about the origin or the date of construction
    of the mosque. Nirmohi Akhara in Suit 3 did not accept that the structure is a
    mosque at all for, according to it, the structure has always been a Hindu temple
    which has been managed by the Nirmohis at all material times. The Nirmohis‘
    disputed the very existence of a mosque, claiming it to be a temple. The case of
    the Nirmohis will be considered separately while assessing the pleadings,
    evidence and issues which arise in Suit 3. But, on the basis of the pleadings in
    Suit 4 and Suit 5, the controversy in regard to the authenticity of the inscriptions
    will not have any practical relevance.
    PART H
    104
    There is another reason for adopting this line of approach. In the ultimate
    analysis, whether the mosque was built in 1528 (as both sets of plaintiffs in suit 4
    and suit 5 have pleaded) or thereafter would essentially make no difference to the
    submissions of the rival sides. The plaintiffs in Suit 4 have stated before this
    Court that the records on which they place reliance in regard to their claim of
    worship, use and possession commence around 1860. This being the position,
    the precise date of the construction of the mosque is a matter which has no
    practical relevance to the outcome of the controversy having regard to the
    pleadings in Suits 4 and 5 and the positions adopted by the contesting Hindu and
    Muslim parties before this Court.
    H. Judicial review and characteristics of a mosque in Islamic law
  8. Mr P N Mishra, learned Counsel appearing on behalf of defendant no 20 in
    Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi Punrudhar Samiti) has made an
    earnest effort to demonstrate that the Babri Masjid lacked the essential features
    of a valid mosque under Islamic jurisprudence. The submissions, essentially deal
    with two facets:
    (i) Features bearing on the location, construction and design of a mosque;
    and
    (ii) The requirements for a valid dedication.
    PART H
    105
    In this segment, the first limb of the submissions is addressed. Whether there
    was a valid dedication will be addressed in a separate segment in Suit 4. Mr
    Mishra urged that Babri Masjid cannot be treated to be a valid mosque since it
    lacked essential features in relation to location, design and construction.
  9. Before the High Court, the following issues were framed in Suit 4:
    Issue no 1 in Suit 4 – Whether the building in question described as a mosque in
    the sketch map attached to the plaint was a mosque as claimed by the plaintiffs;
    If the answer is in the affirmative:
    (a) When was it built and by whom-whether by Babur as alleged by the
    plaintiffs or by Mir Baqi as alleged by defendant no. 13; and
    (b) Whether the building had been constructed on the site of an alleged Hindu
    temple after demolishing the same as alleged by defendant no. 13. If so,
    its effect.
    Issue No 19(d) – Whether the building in question could not be a mosque under
    Islamic Law in view of the admitted position that it did not
    have minarets.
    Issue No 19(e) – Whether the building in question could not legally be a mosque
    as on plaintiffs‘ own showing it was surrounded by a graveyard on three sides.
    Issue No 19(f) – Whether the pillars inside and outside the building in question
    contain images of Hindu Gods and Goddesses. If the finding is in the affirmative,
    whether on that account the building in question cannot have the character of
    mosque under the tenets of Islam.
    PART H
    106
  10. The written statement of defendant no 20 provides the basis for the
    assertion that Babri Masjid did not fulfil or abide by the features required for a
    mosque in Islamic jurisprudence:
    ―…(1) The tomb of this disputed Masjid if it is to be looked
    from behind would show that it is not in the style developed
    by Turkis during fifteenth century, nor the Mehrab of the
    Masjid in that style is to be found. Thus there is no tomb in
    the disputed Masjid as is to be found in other mosques
    generally.
    (2) On the north door in the front facing each other there are
    two tigers. They are in the style of taking leaps and their tails
    are just in the same style when a tiger takes the leap.
    Between these two tigers there is a peacock. This is not a
    characteristic of a mosque.
    (3) The various Hindu idols are painted or their scriptions are
    to be found in the disputed mosque.
    (4) In the disputed mosque there is no provision for reciting
    Namaz. To this day it has no minerettes, no place for storage
    of water for Vazoo.
    (5) The Muslim Faith as adumbrated in Holy Koran does not
    permit the construction of a mosque on the site of temple
    after demolishing the temple.
    (6) Babur never dedicated the property of disputed mosque to
    ALLAH. Even supposing without admitting that Babur
    constructed the disputed mosque, yet as it has been done by
    committing trespass, demolishing the Temple, the abode of
    God, either by Babur or at his instance by Mir Baqi, the
    Governor of Oudh, the dedication is wholly invalid and void.
    The material of the old temple was largely employed in
    building the mosque and a few of the original columns are still
    in good preservation. They are of closed grained black stone
    (Kasauti) bearing various Hindi Bas-reliefs. The outer beam of
    the main structure being of sandal wood, the height of the
    columns is 7 to 8 ft., the shape of the base, the middle
    Section and the capital is square, the rest being round or
    octagonal . . . . . Subsequently, Aurangjeb also desecrated
    the shrines of Ayodhya which led to prolonged bitterness
    between Hindus and Musalmans. Latter also occupied
    Janmasthan by force and also made an assault on
    Hanumangarhi. Attacks and counter attacks continued under
    the leadership of Maulvi Amir Ali (See page 352 of Faizabad
    Gazetteer 1960).
    (7) A mosque must be built in a place of peace and quiet and
    near a place where there is a sizeable and large number of
    Muslim population. According to the Tenets of Islam, a
    mosque cannot be built at place which is surrounded on all
    sides by temples where the sound of music, of Conch shells
    PART H
    107
    or Ghanta Ghariyalis must always disturb the peace and quiet
    of the place.
    (8) A mosque must have minerette for calling the Ajan.
    According to Baille ―When an assembly of worshippers pray
    in Masjid with permission, i.e. delivery. But it is a condition
    that prayers be with Ajan or the regular call and be public and
    not private, for though there should be an assembly yet if it is
    without Izah and the prayers are private instead of public, the
    place is no Masjid according to the true disciples.‖ Indeed
    there has been no mosque without a minerette after the first
    half century fight. (See P.R. Ganapati Iyer‘s law relating to
    Hindu and Muhammadan Endowments 2nd Edition 1918
    Chapter XVII, page 388).
    (9) According to the claim laid by the Muslims in the present
    suit, the building is surrounded on sides by a graveyard
    known as Ganj Shahidan. There is a mention in the Faizabad
    Gazetteer also of the burial of seventy-five Muslims at the
    gate of Janmasthan and the place being known as Ganj
    Shahidan after the battle of 1855. Although there are no
    graves anywhere near the building at Sri Rama Janma Bhumi
    or in its precincts or the area appurtenant thereto for the last
    more than 50 years and if the building was surrounded by a
    graveyard during the British times soon after the annexation
    of Audh by them the building could not be mosque and could
    not be used as a mosque for offering of prayers except the
    funeral prayers.‖
  11. The above challenge is sought to be buttressed by placing reliance on the
    evidence of some of the Muslim witnesses. Relevant parts of the depositions of
    these witnesses have been adverted to during the course of the hearing and are
    reproduced below:
    (i) Mohammad Idris (PW-10)
    According to the witness:
    ―A building built on somebody‘s land by force will not be a
    mosque. So, there is no question of its being legitimate or
    illegitimate. Demolishing any place of worship is forbidden in
    Islam. So, there is no question of breaking the same and
    building a mosque instead. If the debris of any fallen temple
    is sold by its owner, then there is no prohibition on building a
    mosque by purchasing such materials. It is another thing that
    they cannot build a mosque by forcibly grabbing this debris.‖
    PART H
    108
    On the depiction of the images of human beings, animals, birds or idols, the
    witness stated:
    ―If an Imam has the knowledge that pictures of animals and
    birds, or idols, or statues of human beings, or straight or
    crooked images or representations of any women are
    engraved in any structure , he will try to remove such
    engraving before the recital of namaz. But if he does not do
    so even then the namaz will get offered. I have already
    spoken about the status and efficacy of such namaz. It will be
    Makrooh in some circumstances and it will not be so in some
    circumstances. If the Imam does not try to remove this types
    of pictures and shapes, it will be a crime on his part.
    Similarly it is mentioned in the ‗Shariyat‘ that if picture or idol
    of any living being exists over the walls or pillars of mosque,
    then the namaz offered there would be ‗Makruh‘ (undesirable)
    under certain situations. It is so mentioned in the ‗Hidaya‘ of
    ‗Fiqh‘.‖
    (ii) Mohd Burhanuddin (PW-11)
    ―It is true that there is a restriction on forcefully building a
    mosque over someone else‘s land. If the ownership of
    someone is proved over a land, then a mosque would not be
    built over there in absence of the consent of owner. . . .If any
    property belongs to a non-Muslim or even a Muslim, then a
    mosque cannot be forcibly built over there under any
    circumstance by demolishing the same. If it is so proved, then
    the mosque would not be considered legal/proper.‖
    The witness spoke of arrangements for Vazoo or ablution:
    ―Namaz can be offered even by performing ‗Taimum‘
    (substitute for Vazoo), if ‗Vazoo‘ has not been performed and
    there is no arrangement in the mosque for performing ‗Vazoo‘
    and water is not ‗Dastyab‘ (available) even at distant places . .
    . I have also seen such mosques, where there was no
    arrangement for performing ‗Vazoo‘.‖
    On human and other images, the witness stated:
    ―When any Muslim would build a mosque afresh, then he
    would not get the picture of any living being be it animal-bird
    or male-female or God-Goddess, depicted inside it and if he
    does so, he would be an offender. However, it would still be
    called a mosque if other ‗Sharayat‘ are observed.‖
    PART H
    109
    On whether a mosque can be constructed on the demolition of a building, the
    witness stated:
    ―It is true that according to ‗Ehkam‘ (sanction) of the prophet,
    if any building is demolished and mosque is built from its
    debris, then the same is ‗Makruh‘ (not desirable).‖
    (iii) Mohd Khalid Nadvi (PW-22)
    The witness stated:
    ―It is true that a mosque will not be constructed by forcibly
    demolishing a place of worship belonging to any religion.
    Similarly it cannot be constructed by forcibly capturing a place
    of worship belonging to any other religion.‖
    According to the witness, if a place of worship belonging to a particular religion is
    demolished, it would remain a place of worship for that faith and if it was proved
    that a temple on a disputed site was forcibly demolished for the construction of a
    mosque, the temple would continue to be treated as a temple:
    ―It is correct to say that if a place of worship belonging to a
    particular faith is demolished, it will remain to be a place of
    worship belonging to that very faith. It is correct to say that a
    temple will not lose its character and will remain to be a
    temple even if it is demolished to build a mosque. If any
    mosque is demolished and a temple is constructed in its
    place, the mosque will remain to be a mosque. If it is proved
    that there was a temple on the disputed site forcibly
    demolishing which a mosque was constructed, then such a
    temple will continue to be treated as a temple.‖
    (iv) Sibte Mohd. Naqvi of the Shia sect (PW-25)
    According to the witness:
    ―vii. At one place, two separate buildings of worship or two
    religions cannot exist.
    xv. Images, portraits, pictures, idols etc. as also designed
    garments having pictures are prohibited in a mosque.
    xvii. Musical instrument i.e. bell etc. is not permissible in the
    mosque or in the vicinity thereof.
    PART H
    110
    xviii. Where bells are ringing or conch shells are blown,
    prayer would not be offered.‖
  12. Mr Mishra, while placing reliance on the texts of the Hadees sought to urge
    that there was a breach of the following cardinal principles of Islamic law:
    (i) Azaan must be called at least twice a day;
    (ii) A mosque must have a Vazoo or place for ablution;
    (iii) A mosque should not contain visual images of idols, floral designs or
    the human form;
    (iv) No ringing of bells is permissible within the precincts of or in the area
    surrounding the mosque;
    (v) On one plot of land, two religious places are impermissible;
    (vi) No preparation of food in a kitchen is permissible in or in closeproximity to a mosque;
    (vii) Land should not be usurped for the construction of a mosque; and
    (viii) No graves should be situated in close-proximity to a mosque.
    These submissions have been controverted by Mr Mohd Nizamuddin Pasha,
    learned Counsel appearing on behalf of plaintiffs in Suit 4, both in the course of
    his oral arguments and in written submissions. Mr Pasha urged:
    (i) On whether Vazoo is necessary in a mosque:
    (a) Babri Masjid had a specific place ear-marked for ablution;
    (b) In any event according to the Hadees, it is preferable to perform
    ablution at home before coming to the mosque;
    (c) The Hadees which have been cited state that bathing on Friday is a
    must or indicate how Vazoo is to be performed;
    PART H
    111
    (ii) On whether pictures or depictions detract from the character of a mosque:
    (a) The purpose of the prohibition is to ensure that a worshipper is not
    detracted from prayer;
    (b) While a Muslim may claim that a picture is interfering with prayer, an
    outsider cannot claim that a prayer is makruh because of the
    presence of images in the mosque; and
    (c) Pictures of lifeless things are not specifically disapproved.
    (iii) As regards minarets:
    (a) The first mosque of Islam neither had domes nor minarets; and
    (b) A large number of mosques including of the same period, do not
    have minarets.
    (iv) On the presence of pillars /columns, there is no absolute injunction;
    (v) There cannot be two qiblas in one land. This is a misinterpretation of a
    Hadees which means that a state cannot have two religions;
    (vi) On the claim that there should not be any bells nearby:
    (a) In practical terms in a populated city, such an injunction is incapable
    of being observed;
    (b) Mosques in the vicinity of temples and ringing of bells was not
    unusual in India; and
    (c) The Sufi idea of Islam is more accommodative of other faiths.
    (vii) As regards the presence of graves, the map annexed to the plaint of 1885
    shows that there are no graves in front of the western face of the mosque.
    The Hadees indicates that one should not offer namaz facing a grave; and
    PART H
    112
    (viii) In any case what is or is not permissible in relation to graves is heavily
    disputed with sufis and wahabis being on extreme ends of the spectrum.
    Finally, Mr Pasha argued that the concept of ‗Makruh‘ means something which is
    undesirable but not prohibited; this is a purely spiritual idea about what makes
    worship dearer to Almighty Allah.
    Mr Pasha, while controverting the interpretation placed by Mr Mishra has
    indicated that Mr Mishra has selectively relied upon certain aspects of the
    Hadees without reading the religious texts in their context and as a whole.
  13. Justice Sudhir Agarwal observed that Babur, as the Emperor, had absolute
    power as an independent sovereign:
    ―3389…The position of Babar, in our view, was that of
    independent sovereign, Sole Monarch, having paramount
    power. It was supreme, uncontrollable and absolute, not
    answerable to anyone. Whether invader or anything else, the
    fact remains that he had been the supreme authority in the
    territory which he conquered. Nobody could have questioned
    him.‖
    The judge observed that ―Whether the building in dispute is a mosque, treated to
    be a mosque, believed to be a mosque and practiced as a mosque‖ have to be
    decided not in terms of the tenets of the Shariat but according to how people
    believed and conducted themselves over a length of time. The High Court held
    that whether Muslims had used the mosque for offering worship immediately after
    its construction had not been proved either way but there was evidence to
    indicate that Muslims had visited the mosque in order to offer namaz after the
    partition wall was set up in 1856-57. Whether namaz was offered was not proved
    PART H
    113
    but it had been established that since 1857 until the last namaz was offered in the
    inner courtyard on 16 December 1949, Muslims had visited the mosque for
    worship. Hence, whether the building could be a mosque in accordance with the
    tenets of the Shariat was of no significance since the conduct of those who
    believed and worshipped would be the determinative factor for determining the
    nature and use of the property in question. The authority of Babur or Aurangzeb
    (whoever constructed the mosque) was absolute and the court could not examine
    whether the mosque had been constructed in accordance with or contrary to the
    tenets of the Shariat:
    ―3404…Whether Babar or Aurangzeb or anybody else, they
    were supreme authority. Whether their action was consistent
    with the tenets of Islam or not, in our view, is unchallengeable
    after so many centuries particularly when those supreme
    authorities were not subordinate to any system of justice.
    Even otherwise, we cannot examine as to whether they rightly
    or wrongly constructed a place terming it as mosque
    particularly when at least the local people believe from the
    representation, whatever it is, that the construction which has
    been made, is that of a mosque.‖
    In the view of Justice Sudhir Agarwal:
    ―3405. Something which took place more than 200 and odd
    years, we are clearly of the view, cannot be a subject matter
    of judicial scrutiny of this Court which is the creation of statute
    that came into force in a system which itself was born after
    more than hundred and odd years when the building in
    dispute might have been constructed. All the expert religious
    witnesses have admitted that if a mosque is constructed, the
    picture or images of living beings like human images or
    animal images shall not be allowed to remain thereat. The
    creator of the building in dispute thought otherwise, yet the
    followers of Islam did not hesitate in using the premises for
    the purpose of Namaz. Whether the belief of such persons,
    who visited the premises for such worship, is superior or
    inferior, whether such offering of Namaz was regular or
    frequent or occasional and intermittent would be of no
    consequence. Suffice, if there had been Namaz by the
    Muslim. The offering of worship by Hindus knowing the
    PART H
    114
    building in dispute that it is a mosque is something else but
    on that basis the manner in which the building in dispute has
    been known for the last more than 250 years and odd cannot
    be changed.‖
    The offering of prayer by Muslims though intermittently from 1860 uptill 16
    December 1949 was in the view of the High Court a matter of significance.
  14. Assailing the above view, it has been urged by Mr Mishra that the
    observations of the High Court are per incuriam and that in terms of Section 3 of
    the Oudh Laws Act 1876, decisions on matters of religious use or institutions
    have to be decided according to Islamic law or, as the case may be, according to
    Hindu law.
  15. Essentially, the submissions which have been urged before this Court
    require it to embark upon a journey into theological doctrine and to apply the
    doctrine to deduce whether every one of the features prescribed by the Hadees
    for the location or construction of a mosque have been fulfilled.
  16. During the course of the submissions, it has emerged that the extreme and
    even absolute view of Islam sought to be portrayed by Mr P N Mishra does not
    emerge as the only available interpretation of Islamic law on a matter of theology.
    Hence, in the given set of facts and circumstances, it is inappropriate for this
    Court to enter upon an area of theology and to assume the role of an interpreter
    of the Hadees. The true test is whether those who believe and worship have faith
    in the religious efficacy of the place where they pray. The belief and faith of the
    worshipper in offering namaz at a place which is for the worshipper a mosque
    PART H
    115
    cannot be challenged. It would be preposterous for this Court to question it on the
    ground that a true Muslim would not offer prayer in a place which does not meet
    an extreme interpretation of doctrine selectively advanced by Mr Mishra. This
    Court, as a secular institution, set up under a constitutional regime must steer
    clear from choosing one among many possible interpretations of theological
    doctrine and must defer to the safer course of accepting the faith and belief of the
    worshipper.
    Above all, the practice of religion, Islam being no exception, varies according to
    the culture and social context. That indeed is the strength of our plural society.
    Cultural assimilation is a significant factor which shapes the manner in which
    religion is practiced. In the plural diversity of religious beliefs as they are
    practiced in India, cultural assimilation cannot be construed as a feature
    destructive of religious doctrine. On the contrary, this process strengthens and
    reinforces the true character of a country which has been able to preserve its
    unity by accommodating, tolerating and respecting a diversity of religious faiths
    and ideas. There can be no hesitation in rejecting the submission made by Mr
    Mishra. Our Court is founded on and owes its existence to a constitutional order.
    We must firmly reject any attempt to lead the court to interpret religious doctrine
    in an absolute and extreme form and question the faith of worshippers. Nothing
    would be as destructive of the values underlying Article 25 of the Constitution.
    PART I
    116
    I. Places of Worship Act
  17. Parliament enacted the Places of Worship (Special Provisions) Act 199133
    .
    Sections 3, 6 and 8 of the legislation came into force at once on the date of
    enactment (18 September 1991) while the other provisions are deemed to have
    come into force on 11 July 1991. The long title evinces the intent of Parliament in
    enacting the law, for it is:
    ―An Act to prohibit conversion of any place of worship and to
    provide for the maintenance of the religious character of any
    place of worship as it existed on the 15th day of August, 1947,
    and for matters connected therewith or incidental thereto.‖
    The law has been enacted to fulfil two purposes. First, it prohibits the conversion
    of any place of worship. In doing so, it speaks to the future by mandating that the
    character of a place of public worship shall not be altered. Second, the law seeks
    to impose a positive obligation to maintain the religious character of every place
    of worship as it existed on 15 August 1947 when India achieved independence
    from colonial rule.
  18. The expression ‗place of worship‘ is defined in Section 2(c) thus :
    ―2(c) ―place of worship‖ means a temple, mosque, gurudwara,
    church, monastery or any other place of public religious
    worship of any religious denomination or any section thereof,
    by whatever name called.‖
    In Section 2(a), the Places of Worship Act provides that the ―commencement of
    this Act‖ means the commencement on 11 July 1991.

33 ―Places of Worship Act‖
PART I
117
Section 3 enacts a bar on the conversion of a place of worship of any religious
denomination or a section of it into a place of worship of a different religious
denomination or of a different segment of the same religious denomination:
―3. Bar of conversion of places of worship.—No person shall
convert any place of worship of any religious denomination or
any section thereof into a place of worship of a different
section of the same religious denomination or of a different
religious denomination or any section thereof.‖
Section 4 preserves the religious character of a place of worship as it existed on
15 August 1947:
―4. Declaration as to the religious character of certain places
of worship and bar of jurisdiction of courts, etc.—(1) It is
hereby declared that the religious character of a place of
worship existing on the 15th day of August, 1947 shall
continue to be the same as it existed on that day.
(2) If, on the commencement of this Act, any suit, appeal or
other proceeding with respect to the conversion of the
religious character of any place of worship, existing on
the 15th day of August, 1947, is pending before any
court, tribunal or other authority, the same shall abate,
and no suit, appeal or other proceeding with respect to any
such matter shall lie on or after such commencement in any
court, tribunal or other authority:
Provided that if any suit, appeal or other proceeding,
instituted or filed on the ground that conversion has
taken place in the religious character of any such place
after the 15th day of August, 1947, is pending on the
commencement of this Act, such suit, appeal or other
proceeding shall not so abate and every such suit, appeal
or other proceeding shall be disposed of in accordance with
the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2)
shall apply to,—
(a) any place of worship referred to in the said sub-sections
which is an ancient and historical monument or an
archaeological site or remains covered by the Ancient
Monuments and Archaeological Sites and Remains Act, 1958
(24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to any
matter referred to in sub-section (2), finally decided, settled or
disposed of by a court, tribunal or other authority before the
commencement of this Act;
PART I
118
(c) any dispute with respect to any such matter settled by the
parties amongst themselves before such commencement;
(d) any conversion of any such place effected before such
commencement by acquiescence;
(e) any conversion of any such place effected before such
commencement which is not liable to be challenged in any
court, tribunal or other authority being barred by limitation
under any law for the time being in force.‖
(Emphasis supplied)
The Places of Worship Act however contains an exemption from the application
of its provisions to the place of worship ―commonly known as Ram Janam Bhumi
–Babri Masjid‖ and to any suit, appeal or proceeding relating to it. Section 5
stipulates:
―5. Act not to apply to Ram Janma Bhumi-Babri Masjid.—
Nothing contained in this Act shall apply to the place or place
of worship commonly known as Ram Janma Bhumi-Babri
Masjid situated in Ayodhya in the State of Uttar Pradesh and
to any suit, appeal or other proceeding relating to the said
place or place of worship.‖
Section 6 provides for a punishment of three years‘ imprisonment and a fine for
contravening the provisions of Section 3 and for an attempt or act of abetment:
―6. Punishment for contravention of section 3.—(1) Whoever
contravenes the provisions of section 3 shall be punishable
with imprisonment for a term which may extend to three years
and shall also be liable to fine.
(2) Whoever attempts to commit any offence punishable
under sub-section (1) or to cause such offence to be
committed and in such attempt does any act towards the
commission of the offence shall be punishable with the
punishment provided for the offence.
(3) Whoever abets, or is a party to a criminal conspiracy to
commit, an offence punishable under sub-section (1) shall,
whether such offence be or be not committed in consequence
of such abetment or in pursuance of such criminal conspiracy,
and notwithstanding anything contained in section 116 of the
Indian Penal Code, be punishable with the punishment
provided for the offence.‖
PART I
119
Section 7 confers upon the Places of Worship Act overriding force and effect:
―7. Act to override other enactments.—The provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in
force or any instrument having effect by virtue of any law
other than this Act.‖

  1. The law imposes two unwavering and mandatory norms:
    (i) A bar is imposed by Section 3 on the conversion of a place of worship of
    any religious denomination or a section of a denomination into a place of
    worship either of a different section of the same religious denomination or
    of a distinct religious denomination. The expression ‗place of worship‘ is
    defined in the broadest possible terms to cover places of public religious
    worship of all religions and denominations; and
    (ii) The law preserves the religious character of every place of worship as it
    existed on 15 August 1947. Towards achieving this purpose, it provides for
    the abatement of suits and legal proceedings with respect to the
    conversion of the religious character of any place of worship existing on 15
    August 1947. Coupled with this, the Places of Worship Act imposes a bar
    on the institution of fresh suits or legal proceedings. The only exception is
    in the case of suits, appeals or proceedings pending at the
    commencement of the law on the ground that conversion of a place of
    worship had taken place after 15 August 1947. The proviso to sub-section
    (2) of Section 4 saves those suits, appeals and legal proceedings which
    are pending on the date of the commencement of the Act if they pertain to
    the conversion of the religious character of a place of worship after the cut-
    PART I
    120
    off date. Sub-Section (3) of Section 4 however stipulates that the previous
    two sub-sections will not apply to:
    (a) Ancient and historical monuments or archaeological sites or
    remains governed by Act 24 of 1958 or any other law;
    (b) A suit or legal proceeding which has been finally decided
    settled or disposed of;
    (c) Any dispute which has been settled by the parties before the
    commencement of the Act;
    (d) A conversion of a place of worship effected before the
    commencement of the Act by acquiescence; and
    (e) Any conversion of a place of worship before the
    commencement of the Act in respect of which the cause of
    action would be barred by limitation.
    Section 5 stipulates that the Act shall not apply to Ram Janmabhumi – Babri
    Masjid and to any suit, appeal or any proceeding relating to it. Consequently,
    there is a specific exception which has been carved out by the provisions of the
    Places of Worship Act in respect of the present dispute.
    The intention of Parliament
  2. The purpose of enacting the law was explained by the Union Minister of
    Home Affairs on the floor of the Lok Sabha on 10 September 199134:
    ―We see this Bill as a measure to provide and develop our
    glorious traditions of love, peace and harmony. These
    traditions are part of a cultural heritage of which every Indian
    is justifiably proud. Tolerance for all faiths has

34 Lok Sabha Debates, Volume V, nos 41-49, page 448
PART I
121
characterized our great civilization since time
immemorial.
These traditions of amity, harmony and mutual respect came
under severe strain during the pre-independence period when
the colonial power sought to actively create and encourage
communal divide in the country. After independence we
have set about healing the wounds of the past and
endeavoured to restore our traditions of communal amity and
goodwill to their past glory. By and large we have succeeded,
although there have been, it must be admitted, some
unfortunate setbacks. Rather than being discouraged by
such setbacks, it is our duty and commitment to taken
lesson from them for the future.‖
(Emphasis supplied)
The Union Minister of Home Affairs indicated that the law which sought to prohibit
the forcible conversion of places of worship was not ―to create new disputes and
to rake up old controversies which had long been forgotten by the people…but
facilitate the object sought to be achieved‖35. Speaking in support of the cut-off
date of 15 August 1947, one of the Members (Shrimati Malini Bhattacharya)
explained36:
―But I think this August 15, 1947 is crucial because on that
date we are supposed to have emerged as a modern,
democratic and sovereign State thrusting back such
barbarity into the past once and for all. From that date, we
also distinguished ourselves…as State which has no official
religion and which gives equal rights to all the different
religious denominations. So, whatever may have happened
before that, we all expected that from that date there should
be no such retrogression into the past.‖
(Emphasis supplied)

  1. The Places of Worship Act which was enacted in 1991 by Parliament
    protects and secures the fundamental values of the Constitution. The Preamble
    underlines the need to protect the liberty of thought, expression, belief, faith and

35 Lok Sabha Debates, Volume V, nos 41-49, page 448
36 Lok Sabha Debates, Volume V, nos 41-49, pages 443-444
PART I
122
worship. It emphasises human dignity and fraternity. Tolerance, respect for and
acceptance of the equality of all religious faiths is a fundamental precept of
fraternity. This was specifically adverted to by the Union Minister of Home Affairs
in the course of his address before the Rajya Sabha37 on 12 September 1991 by
stating:
―I believe that India is known for its civilization and the
greatest contribution of India to the world civilization is the
kind of tolerance, understanding, the kind of assimilative spirit
and the cosmopolitan outlook that it shows…
The Advaita philosophy…clearly says that there is no
difference between God and ourselves. We have to realize
that God is not in the mosque or in the temple only, but God
is in the heart of a person…
Let everybody understand that he owes his allegiance to the
Constitution, allegiance to the unity of the country: the rest of
the things are immaterial.‖
In providing a guarantee for the preservation of the religious character of places
of public worship as they existed on 15 August 1947 and against the conversion
of places of public worship, Parliament determined that independence from
colonial rule furnishes a constitutional basis for healing the injustices of the past
by providing the confidence to every religious community that their places of
worship will be preserved and that their character will not be altered. The law
addresses itself to the State as much as to every citizen of the nation. Its norms
bind those who govern the affairs of the nation at every level. Those norms
implement the Fundamental Duties under Article 51A and are hence positive
mandates to every citizen as well. The State, has by enacting the law, enforced a
constitutional commitment and operationalized its constitutional obligations to
uphold the equality of all religions and secularism which is a part of the basic

37 Rajya Sabha Debates, Volume CLX, nos 13-18, pages 519-520 and 522
PART I
123
features of the Constitution. The Places of Worship Act imposes a non-derogable
obligation towards enforcing our commitment to secularism under the Indian
Constitution. The law is hence a legislative instrument designed to protect the
secular features of the Indian polity, which is one of the basic features of the
Constitution. Non-retrogression is a foundational feature of the fundamental
constitutional principles of which secularism is a core component. The Places of
Worship Act is thus a legislative intervention which preserves non-retrogression
as an essential feature of our secular values.
Secularism as a constitutional value

  1. In a nine judge Bench decision of this Court in S R Bommai v Union of
    India38, Justice B P Jeevan Reddy held:
    ―304…How are the constitutional promises of social justice,
    liberty of belief, faith or worship and equality of status and of
    opportunity to be attained unless the State eschews the
    religion, faith or belief of a person from its consideration
    altogether while dealing with him, his rights, his duties and his
    entitlements? Secularism is thus more than a passive attitude
    of religious tolerance. It is a positive concept of equal
    treatment of all religions. This attitude is described by some
    as one of neutrality towards religion or as one of benevolent
    neutrality. This may be a concept evolved by western liberal
    thought or it may be, as some say, an abiding faith with the
    Indian people at all points of time. That is not material. What
    is material is that it is a constitutional goal and a basic feature
    of the Constitution as affirmed in Kesavananda
    Bharati [Kesavananda Bharati v. State of Kerala, (1973) 4
    SCC 225 : 1973 Supp SCR 1] and Indira N. Gandhi v. Raj
    Narain [1975 Supp SCC 1 : (1976) 2 SCR 347] . Any step
    inconsistent with this constitutional policy is, in plain words,
    unconstitutional.‖

38 (1994) 3 SCC 1
PART I
124
The Places of Worship Act is intrinsically related to the obligations of a secular
state. It reflects the commitment of India to the equality of all religions. Above all,
the Places of Worship Act is an affirmation of the solemn duty which was cast
upon the State to preserve and protect the equality of all faiths as an essential
constitutional value, a norm which has the status of being a basic feature of the
Constitution. There is a purpose underlying the enactment of the Places of
Worship Act. The law speaks to our history and to the future of the nation.
Cognizant as we are of our history and of the need for the nation to confront it,
Independence was a watershed moment to heal the wounds of the past.
Historical wrongs cannot be remedied by the people taking the law in their own
hands. In preserving the character of places of public worship, Parliament has
mandated in no uncertain terms that history and its wrongs shall not be used as
instruments to oppress the present and the future.

  1. The observations made on the Places of Worship Act by Justice D V
    Sharma are contrary to the scheme of the law as they are to the framework of
    constitutional values. Justice D V Sharma observed as follows:
    ―1 (c). Section 9 is very wide. In absence of any ecclesiastical
    Courts any religious dispute is cognizable, except in very rare
    cases where the declaration sought may be what constitutes
    religious rite. Places of Worship (Special Provisions) Act,
    1991 does not debar those cases where declaration is sought
    for a period prior to the Act came into force or for enforcement
    of right which was recognized before coming into force of the
    Act.‖
    The above conclusion of Justice D V Sharma is directly contrary to the provisions
    of Section 4(2). Justice D V Sharma postulates in the above observations that the
    PART I
    125
    Places of Worship Act will not debar cases of the following nature being
    entertained namely:
    (i) Where a declaration is sought for a period prior to the enforcement of the
    Places of Worship Act; or
    (ii) Where enforcement is sought of a right which was recognised before the
    enforcement of the Places of Worship Act.
  2. Section 4(1) clearly stipulates that the religious character of a place of
    worship as it existed on 15 August 1947 shall be maintained as it existed on that
    day. Section 4(2) specifically contemplates that all suits, appeals and legal
    proceedings existing on the day of the commencement of the Places of Worship
    Act, with respect to the conversion of the religious character of a place of
    worship, existing on 15 August 1947, pending before any court, tribunal or
    authority shall abate, and no suit, appeal or proceeding with respect to such
    matter shall lie after the commencement of the Act. The only exception in the
    proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on
    the ground that the conversion of the religious character of a place of worship
    had taken place after 15 August 1947 and such an action was pending at the
    commencement of the Places of Worship Act. Clearly, in the face of the statutory
    mandate, the exception which has been carved out by Justice D V Sharma runs
    contrary to the terms of the legislation and is therefore erroneous.
    PART J
    126
    J. Juristic Personality
    J.1 Development of the law
  3. At the heart of the legal dispute in the present batch of appeals is the
    question whether the first and second plaintiff in Suit 5 – ―Bhagwan Sri Ram
    Virajman‖ and ―Asthan Sri Ram Janam Bhumi, Ayodhya‖, possess distinct legal
    personalities or, in other words, are ―juristic persons‖. Courts in India have held
    that Hindu idols are legal persons. The meaning and significance of this doctrine
    will be examined over the course of this judgement. At this juncture it is
    necessary to note that the legal personality of the first plaintiff in Suit 5 (‗Bhagwan
    Sri Ram Virajman‘) as represented by the physical idols of Lord Ram at the
    disputed site is not contested by any of the parties. Whether the second plaintiff
    (‗Asthan Sri Ram Janam Bhumi‘) is a juristic person has however been the
    subject of controversy in the oral proceedings before us.
  4. The present case requires us to answer two important questions: First,
    what are the exact contours of the legal personality ascribed to a Hindu idol? In
    other words, to what extent is the artificial legal personality ascribed by courts to
    a Hindu idol akin to the legal personality of a natural person? Second, can
    property of a corporeal nature (in this case land) be ascribed a distinct legal
    personality? To answer these questions, it is necessary to understand both the
    true purpose underlying the legal innovation of recognising or conferring legal
    personality and why courts have conferred legal personality on Hindu idols.
    PART J
    127
    The legal subject: recognising rights, entitlements, duties and liabilities
  5. The foundational principle of a legal system is that it must recognise the
    subjects it seeks to govern. This is done by the law recognising distinct legal units
    or ‗legal persons‘. To be a legal person is to be recognised by the law as a
    subject which embodies rights, entitlements, liabilities and duties. The law may
    directly regulate the behaviour of legal persons and their behaviour in relation to
    each other. Therefore, to be a legal person is to possess certain rights and duties
    under the law and to be capable of engaging in legally enforceable relationships
    with other legal persons. Who or what is a legal person is a function of the legal
    system. The ability to create or recognise legal persons has always varied
    depending upon historic circumstances. The power of legal systems to recognise
    and hence also to deny legal personality has been used over history to wreak
    fundamental breaches of human rights. Roscoe Pound alludes to this in the
    following passage in ―Jurisprudence‖:
    ―In civilised lands even in the modern world it has happened
    that all human beings were not legal persons. In Roman law
    down to the constitution of Antonius Pius the slave was not a
    person. He enjoyed neither rights of family nor rights of
    patrimony. He was a thing, and as such like animals, could be
    the object of rights of property. … In French colonies, before
    slavery was there abolished, slaves were put in the class of
    legal persons by the statute of April 23, 1833 and obtained a
    ‗somewhat extended juridical capacity‘ by a statute of 1845.
    In the United States down to the Civil War, the free Negroes
    in many of the States were free human beings with no legal
    rights.‖39

39 Roscoe Pound, Jurisprudence, Part IV, 1959 Edition
PART J
128
Pound‘s observations were extracted by this Court in Shiromani Gurdwara
Prabandhak Committee, Amritsar v Som Nath Dass40 where a two judge
Bench of this Court had to determine whether the ―Guru Granth Sahib‖
possessed a legal personality. While discussing ‗who is a legal person‘ Justice A
P Misra observed:
―11. …If we trace the history of a ―person‖ in the various
countries we find surprisingly it has projected differently at
different times.

  1. With the development of society, where an individual‘s
    interaction fell short, … cooperation of a larger circle of
    individuals was necessitated. Thus, institutions like
    corporations and companies were created, to help the society
    in achieving the desired result. The very constitution of a
    State, municipal corporation, company etc. are all creations of
    the law and these ―juristic persons‖ arose out of necessities in
    the human development. In other words, they were dressed in
    a cloak to be recognised in law to be a legal unit.‖
  2. Legal systems across the world evolved from periods of darkness where
    legal personality was denied to natural persons to the present day where in
    constitutional democracies almost all natural persons are also legal persons in
    the eyes of the law. Legal systems have also extended the concept of legal
    personality beyond natural persons. This has taken place through the creation of
    the ‗artificial legal person‘ or ‗juristic person‘, where an object or thing which is not
    a natural person is nonetheless recognised as a legal person in the law. Two
    examples of this paradigm are, where a collection of natural persons is
    collectively conferred a distinct legal personality (in the case of a cooperative
    society or corporation) and where legal personality is conferred on an inanimate
    object (in the case of a ship). The conferral of legal personality on things other

40 (2000) 4 SCC 146
PART J
129
than natural persons is a legal development which is so well recognised that it
receives little exposition by courts today. The legal development is nonetheless
well documented. Salmond in his work titled ―Jurisprudence‖ notes:
―Conversely there are, in the law, persons who are not men.
A joint-stock company or a municipal corporation is a person
in legal contemplation. It is true that it is only a fictitious, not a
real person; but it is not a fictitious man. It is personality, not
human nature, that is fictitiously attributed by the law to
bodies corporate.
So far as legal theory is concerned, a person is any being
whom the law regards as capable of rights and duties. Any
being that is so capable is a person, whether a human being
or not, and no being that is not so capable is a person, even
though he be a man. Persons are the substance of which
rights and duties are the attributes. It is only in this
respect that persons possess juridical significance, and
this is the exclusive point of view from which personality
receives legal recognition.
But we may go one step further than this in the analysis. No
being is capable of rights, unless also capable of
interests which may be affected by the acts of others. For
every right involves an underlying interest of this nature.
Similarly no being is capable of duties, unless also capable of
acts by which the interests of others may be affected. To
attribute rights and duties, therefore, is to attribute interests
and acts as their necessary bases. A person, then, may be
defined for the purposes of the law, as any being to
whom the law attributes a capability of interests and
therefore of rights, of acts and therefore of duties.‖41
(Emphasis supplied)

  1. A legal person possesses a capability to bear interests, rights and duties.
    Salmond makes a crucial distinction between legal personality and the physical
    corpus on which legal personality is conferred:
    ―The law, in creating persons, always does so by personifying
    some real thing. Such a person has to this extent a real
    existence, and it is his personality alone that is fictitious.
    There is, indeed, no theoretical necessity for this, since the
    law might, if it so pleased, attribute the quality of

41 J W Salmond, Jurisprudence, Steven and Haynes (1913)
PART J
130
personality to a purely imaginary being, and yet attain the
ends for which this fictitious extension of personality is
devised. Personification, however, conduces so greatly
to simplicity of thought and speech, that its aid is
invariably accepted. The thing personified may be termed
the corpus of the legal person so created; it is the body
into which the law infuses the animus of a fictitious
personality.

Legal persons, being the arbitrary creations of the law, may
be as of as many kinds as the law pleases. Those which are
actually recognised by our own system, however, all fall
within a single class, namely corporations or bodies
corporate. A corporation is a group or series of persons which
by a legal fiction is regarded and treated as itself a person. If,
however, we take account of other systems of our own,
we find that the conception of legal personality is not so
limited in its application…‖
42
(Emphasis supplied)
Legal personality is not human nature. Legal personality constitutes recognition
by the law of an object or corpus as an embodiment of certain rights and duties.
Rights and duties which are ordinarily conferred on natural persons are in select
situations, conferred on inanimate objects or collectives, leading to the creation of
an artificial legal person. An artificial legal person is a legal person to the extent
the law recognises the rights and duties ascribed to them, whether by statute or
by judicial interpretation. Salmond presciently notes that the rights and duties
conferred on artificial legal persons ultimately represent the interests and benefits
of natural persons. In fact, it is precisely because of the substantial benefits
derived by natural persons from such objects or collectives that legislators and
courts are called upon to consider conferring legal personality on such objects or
collectives.

42 J.W. Salmond, Jurisprudence, Steven and Haynes (1913)
PART J
131

  1. At a purely theoretical level, there is no restriction on what legal personality
    may be conferred. What is of significance is the purpose sought to be achieved
    by conferring legal personality. To the extent that this purpose is achieved, legal
    personality may even be conferred on an abstract idea. However, Salmond
    notes that legal personality is usually conferred on objects which are already the
    subject of personification or anthropomorphisms in layman‘s language out of
    ―simplicity for thought and speech‖. The question whether legal personality is
    conferred on a ship, idol, or tree is a matter of what is legally expedient and the
    object chosen does not determine the character of the legal personality
    conferred. The character of the legal personality conferred is determined by the
    purpose sought to be achieved by conferring legal personality. There is thus a
    distinction between legal personality and the physical corpus which then comes
    to represent the legal personality. By the act of conferring legal personality, the
    corpus is animated in law as embodying a distinct legal person possessing
    certain rights and duties.
  2. By conferring legal personality, legal systems have expanded the definition
    of a ‗legal person‘ beyond natural persons. Juristic persons so created do not
    possess human nature. But their legal personality consists of the rights and
    duties ascribed to them by statute or by the courts to achieve the purpose sought
    to be achieved by the conferral of such personality. It is important to understand
    the circumstances in which legal personality has been conferred and
    consequently the rights and duties ascribed to the inanimate objects on which
    this conferment takes place.
    PART J
    132
    The Corporation
  3. The most widely recognised artificial legal person is the corporation in
    Company law. However, for the purposes of understanding the circumstances
    under which courts have conferred legal personality, the example of the
    corporation is of limited use. The idea of treating a collective of individuals as a
    single unit for the purposes of identification in law is as old as human civilisation
    itself. There exists a plethora of examples of such recognition scattered across
    human history with the advent of guilds, partnerships and early unincorporated
    businesses. As Phillip Blumberg notes in his book titled ―The Multinational
    Challenge to Corporation Law‖:
    ―When the Crown finally began to charter craft guilds and
    trading companies – the first business corporations – in the
    fifteenth century, an understanding of the legal nature of
    the corporation was already substantially in place. … With
    this history before them, Sir Edward Code, writing in the
    beginning of the seventeenth century; … and Blackstone and
    Kyd, writing in the late eighteenth century, could confidently
    assert what the corporation was, how it was created, and
    what legal attributes flowed from its organization. While they
    had primarily ecclesiastical and municipal corporations in
    mind, their commentary fully applied to business corporations
    as well.‖43
    (Emphasis supplied)
    The jurisprudential concept of treating a collective of entrepreneurs as a single
    unit for the purposes of legal recognition was already well established by the time
    the first business corporations came into existence and did not warrant
    examination by the courts. The author further states:

43 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 3
PART J
133
―Until well into the nineteenth century, recognition of a
corporation for business purposes, both in England and
in the United States, required a specific governmental
decision to grant corporate status. In England, this took
the form of a character from the Crown or an act of
Parliament. In the United States it required a legislative act. …
With the universal triumph of general incorporation
statutes more than a century ago, corporations could be
formed simply by filing certain forms and paying certain
fees and taxes. The state’s role has shrunken dramatically to
a general specification of procedures and a ministerial
administrative acknowledgement of the incorporators’
compliance with statutory formalities.‖44
(Emphasis supplied)
The independent legal personality of a corporation has never been dependent on
recognition by courts. The legal personality of the corporation was originally
granted by a positive act of the government. In later years, as incorporation
became the preferred method of doing business, corporate personality was
conferred by general statutes of incorporation which permitted any person to
incorporate a company subject to the satisfaction of certain statutory conditions.
These historical developments outline the departure from a positive act of the
government as the basis of corporate personality, to the creation of statutory
frameworks within which it was conferred. It does not, however, outline the
reasons underlining the conferral of legal personality and is of little assistance in
the present situation.
The Ship

  1. A more pertinent example for the present purposes is the conferment of
    legal personality on a ship. The concepts of a maritime lien and of actions in rem

44 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 22
PART J
134
are established precepts of maritime law. A maritime lien may arise in the case of
a wrongdoing or damage caused by a ship which gives the claimant a charge on
the ‗res‘ of the ship. The charge is crystallised by an ‗action in rem‘ under which
the ship is directly proceeded against, as a legal person. In 1881, Sir George
Jessel MR explained this in The City of Mecca45, where he observed:
―You may in England and in most countries proceed against
the ship. The writ may be issued against the owner of such a
ship, and the owner may never appear, and you get your
judgement against the ship without a single person being
named from beginning to end. That is an action in rem, and it
is perfectly well understood that the judgement is against the
ship.‖
D R Thomas in his book titled ―Maritime Liens‖
46 traces the history of the judicial
conferment of legal personality on ships. He speaks of two theories- the
‗personification theory‘ and the ‗procedural theory‘ in explaining the evolution of
the concept:
―The first [theory], commonly coined as the personification
theory, traces the historical origin and development of
maritime liens to the juristic technique, which has obtained
since medieval times, of ascribing personality to a ship. Under
this theory a ship is personified and regarded as a distinct
juristic entity with a capacity to contract and commit torts. The
ship is both the source and limit of liability.

The second theory, known as the procedural theory, is based
on the premise that maritime liens evolved out of the process
of arrest of a vessel in order to compel the appearance of the
res owner and to obtain a security.

Although the point is not free of uncertainty it is probably the
case that a maritime lien is a substantive right whereas a
statutory right of action in rem is in essence a procedural
remedy. The object behind the availability of a statutory right

45 The City of Mecca (1881) 5 P.D. 106
46 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980)
PART J
135
of action in rem is to enable a claimant to found a jurisdiction
and to provide the res as security for the claim.‖47
(Emphasis supplied)

  1. There is a direct nexus between the conferral of a limited legal personality
    and the adjudicative utility achieved by the conferral. Courts treat the physical
    property of the ship as a legal person against which certain actions may be taken.
    Conferring legal personality on the ship allows for actions to be taken
    independent of the availability or presence of the ship‘s owners, who in a great
    many cases may be in other parts of the world. As a ship may only be in port for
    a brief period, an action in rem allows the claimant to ensure pre-judgement
    security. Thus, even absent an express personification, actions against the ship
    as a legal person ensure the effective adjudication of admiralty disputes.
  2. In M V Elisabeth v Harwan Investment and Trading Pvt Ltd.48
    , this
    Court noticed the underlying basis of this principle of Admiralty law. Justice
    Thommen, speaking for a two judge Bench traced the exercise of admiralty
    jurisdiction by English courts:
    ―44. …The vital significance and the distinguishing feature of
    an admiralty action in rem is that this jurisdiction can be
    assumed by the coastal authorities in respect of any maritime
    claim by arrest of the ship, irrespective of the nationality of the
    ship or that of its owners, or the place of business or domicile
    or residence of its owners or the place where the cause of
    action arose wholly or in part.‖
    ―…In admiralty the vessel has a juridical personality, an
    almost corporate capacity, having not only rights but
    liabilities (sometimes distinct from those of the owner)
    which may be enforced by process and the decree
    against the vessel, binding upon all interested in her and
    conclusive upon the world, for admiralty in appropriate

47 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980), at pages 7
and 38
48 1993 Supp (2) SCC 433
PART J
136
cases administers remedies in rem, i.e., against the property,
as well as remedies in personam, i.e., against the party
personally…‖ (Benedict, The Law of American Admiralty, 6th
ed., Vol. I p. 3.)

  1. Admiralty Law confers upon the claimant a right in rem to
    proceed against the ship or cargo as distinguished from a
    right in personam to proceed against the owner. The arrest of
    the ship is regarded as a mere procedure to obtain security to
    satisfy judgement….‖ (Emphasis supplied)
    In this view, the conferral of legal personality on a ship sub-served the purpose of
    business certainty and expediency. The decree against the ship binds all
    interested in her, and despite her nomadic nature, satisfies the requirement of
    ensuring pre-judgment security. Besides the UK and India, the attribution of legal
    personality to ships has been used extensively across jurisdictions. Illustrating
    the approach of American courts, Professor Douglas Lind traces the evolution of
    the concept:
    ―As the United States entered its first century, the greater
    part of the nation’s trade and commerce, as well as much of
    the general transportation of persons, occurred on the high
    seas or along the country‘s abundant inland navigable
    waterways. The constitution had extended the federal
    judicial power to all cases of admiralty and maritime
    jurisdiction.

    [The Brig James Wells v United States] case raised what was
    quickly becoming a common issue: whether an American
    registered vessel should be condemned for violating a federal
    law. The Court held the Brig’s condemnation inevitable.
    Noteworthy is the fact that while the case was styled in the
    name of the vessel, neither the term ‘maritime lien’ nor ‘in
    rem, appears, and there is no suggestion that the ship
    itself, rather than those in charge of it, was the offender
    … The practice of naming an action against a vessel did
    not, however, attest to the idea of vessel personification.
    The Court treated actions styled against a vessel as
    including everyone with an interest in her as ―a party to
    the suit.‖

    PART J
    137
    Numerous cases had troubled the federal courts regarding
    enforcement of liens when the principals (owners, masters)
    with interests in a ship had no active role or prior knowledge
    of the wrongdoing alleged. Traditional law of agency, with
    the ship as agent, worked against a coherent rule of
    responsibility and recovery … Given the peculiar vitalism of
    the ship in lore, literature, and poetry, it took only a slight
    conceptual shift in the legal mind for the federal courts to
    assume the ―mental mode‖ of adaptation to [the] reality of the
    vitalism of the ship. The doctrine gave the courts the ―control
    of the environment‖ over maritime law that they had been
    lacking … with the doctrine of the personality of the ship,
    the Supreme Court inverted the relationship of agency,
    making the ship the principal rather than the agent. In
    this way, the ―desirable consequences‖ of a coherent,
    workable admiralty jurisdiction seemed possible. The
    doctrine of the personality of the ship, that is, became a
    central hallmark of nineteenth century American admiralty law
    because it appeared to the Supreme Court ―to be good in the
    way of belief‖ … The idea originated in the practical efforts
    of the Supreme Court, especially Justices Marshall and
    Story, to meet critical social and political needs of the
    new American republic.‖
    49
    (Emphasis supplied)
  2. The experience of American courts was that owners of offending ships
    regularly avoided the jurisdiction of courts. The existing law of the day was
    inadequate to address the situation. The judges of the American Supreme Court
    therefore utilised the existing non-legal practice of anthropomorphising the ship
    and gave it legal significance by conferring legal personality on vessels within
    their jurisdiction. Significantly, the existing law of agency was ill equipped to deal
    with the unique features of Admiralty Law. Allowing actions against ships then
    created a vehicle through which the obligations of those with an interest in the
    ships and her actions, though outside the jurisdiction of courts, would be fulfilled
    by the recognition by the law of the personality of the maritime vessel. Perhaps
    even more so than in the case of English admiralty courts, the American

49 Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine of the Personality of the Ship,
22 U.S.F. Mar. L.J. 39 (2009) at page 91
PART J
138
experience demonstrates that the conferral of legal personality on ships was a
result of historical circumstances, shortcomings in the existing law and the need
of courts to practically and effectively adjudicate upon maritime claims. Over the
course of several cases, the American Supreme Court solved the practical
difficulties of attribution and agency by making the ship a distinct legal person for
the purposes of adjudicating maritime claims.
History, necessity and convenience

  1. These observations are true even beyond the realm of admiralty law.
    Bryant Smith in a seminal article titled ―Legal Personality‖ published in 1928 in
    the Yale Law Journal50 states that ordinarily, the subjects of rights and duties are
    natural persons. However, he goes on to note that:
    ―… for some reason or other, it becomes necessary or
    convenient to deal with an inanimate object such as a
    ship, or with a human being in a multiple capacity, as a
    trustee or a guardian, or with an association of human
    beings in a single capacity, as a partnership or a
    corporation. A merchant, for example, who has furnished
    supplies for a voyage, or a boss stevedore who has
    renovated the ship, cannot reach the owner of the vessel,
    who is outside the jurisdiction. The obvious solution is to get
    at the ship itself and, through it, satisfy the owner’s
    obligations. But to devise a new system of jurisprudence
    for the purpose, to work out new forms and theories and
    processes, would too severely tax the ingenuity of the
    profession. The alternative is for the judges to shut their
    eyes to the irrelevant differences between a ship and a
    man and to treat the ship as if it were a man for the
    purpose of defending a libel.

    It is true, of course, that the benefits and burdens of legal
    personality in other than human subjects, on ultimate
    analysis, result to human beings, which, we have no
    doubt, is what the writers above cited mean. But the very
    utility of the concept, particularly in the case of corporate

50 Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296
PART J
139
personality, lies in the fact that it avoids the necessity for
this ultimate analysis.

But, though the function of legal personality, as the quotation
suggests, is to regulate behaviour, it is not alone to regulate
the conduct of the subject on which it is conferred; it is
to regulate also the conduct of human beings toward the
subject or toward each other. It suits the purposes of
society to make a ship a legal person, not because the
ship’s conduct will be any different, of course, but because its
personality is an effective instrument to control in certain
particulars the conduct of its owner or of other human
beings.‖
(Emphasis supplied)
The above extract affirms Salmond‘s observations that the choice of corpus (i.e.
the object) on which legal personality is conferred is not based on strict legal
principle but is an outcome of historical circumstances, legal necessity and
convenience. Historical circumstances require courts to adjudicate upon unique
factual situations. In American admiralty law, the increase in maritime expeditions
coupled with the conferral of admiralty jurisdiction on the United States Supreme
Court led to an influx of cases involving maritime claims. The existing law of the
day did not allow the court to effectively adjudicate upon these new claims,
leading to inequitable, absurd or perverse outcomes. Hence, legal innovation was
resorted to by courts. Both Lind and Smith highlighted several problems arising
from the uniqueness of the ship itself – a vessel travelling across multiple
jurisdictions, whose owners may reside in jurisdictions other than those where
they are sought to be acted against and have little knowledge of, or control, over
the operation of the ship. The conferral of legal personality on the ship did not
change the behaviour of the ship. It however created a legal framework within
which the interactions between natural persons and the ship could be regulated
to achieve outcomes at a societal level which are satisfactory and legally sound.
PART J
140

  1. Both authors note that the existing personification of the ship required
    courts to make but a small conceptual leap of faith, which resulted in significant
    legal benefits for courts. This point is of greater historical than legal significance
    for it cannot be stated that where there is no personification of an object, a court
    is barred from conferring legal personality. Arguably, the independent legal
    personality conferred on a corporation by acts of the state involved a far greater
    conceptual leap. Yet it was deemed necessary and has since crystallised into a
    foundational principle in the law of corporations.
  2. There exists another reason to confer legal personality. Objects represent
    certain interests and confer certain benefits. In the case of some objects, the
    benefits will be material. The benefit may extend beyond that which is purely
    material. An artificial legal person, whether a ship or a company cannot in fact
    enjoy these benefits. The ultimate beneficiaries of such benefits are natural
    persons. However, requiring a court, in every case, to make the distinction
    between the artificial legal person and the natural persons deriving benefit from
    such artificial person is inordinately taxing, particularly when coupled with the
    increasing use of corporations and ships. This leads us to the third rationale for
    conferring legal personality – convenience. The conferral of legal personality on
    objects has historically been a powerful tool of policy to ensure the practical
    adjudication of claims. By creating a legal framework, it equipped the court with
    the tools necessary to adjudicate upon an emerging class of disputes. It saved
    considerable judicial effort and time by allowing judges to obviate the distinction
    between artificial and natural persons where it was not relevant. The conferral of
    PART J
    141
    legal personality was thus a tool of legal necessity and convenience. Legal
    personality does not denote human nature or human attributes. Legal personality
    is a recognition of certain rights and duties in law. An object, even after the
    conferral of legal personality, cannot express any will but it represents certain
    interests, rights, or benefits accruing to natural persons. Courts confer legal
    personality to overcome shortcomings perceived in the law and to facilitate
    practical adjudication. By ascribing rights and duties to artificial legal persons
    (imbued with a legal personality), the law tackles and fulfils both necessity and
    convenience. By extension, courts ascribe legal personality to effectively
    adjudicate upon the claims of natural persons deriving benefits from or affected
    by the corpus upon which legal personality is conferred. The corollary of this
    principle is that the rights ascribed by courts to the corpus are limited to those
    necessary to address the existing shortcomings in the law and efficiently
    adjudicate claims.
  3. This principle is concisely articulated by Phillip Blumberg:
    ―Distinguished by their particular legal rights and
    responsibilities, each class of legal unit is unique. They
    include legal subjects as disparate as individuals, maritime
    vessels, physical objects, partnerships, associations, special
    accounts, funds, economic interest groupings, and
    governmental agencies, as well as the corporation and the
    corporate group. In each case, the attribution of rights and
    responsibilities demarcating the perimeters of legal
    recognition of the unit reflects all the factors that
    underlie societal lawmaking: the historical development
    of the law, changing values and interests, socio-economic
    and political forces, and conceptual currents.
    There are certain fundamental points. First, neither legal
    rights nor legal units exist ―in the air‖. Legal rights must
    pertain to a legal unit that can exercise them. Further, there
    can be no comprehensive list of legal rights and
    responsibilities that automatically springs into existence
    PART J
    142
    upon recognition of a particular subject as a legal unit.
    Quite the contrary. It is the recognition of particular
    rights and responsibilities (principally rights) – one by
    one – that shapes the juridical contours of the legal unit
    for which they have been created.
    When the law recognises a particular right or imposes a
    particular responsibility on a presumptive legal unit, this
    constitutes recognition as a legal unit to the extent of the
    attribution. Other rights and responsibilities may or may
    not exist, depending on whether such recognition of the
    unit in the view of the lawmaker – whether legislator,
    administrator, or judge – will fulfil the underlying policies
    and objectives of the law of the time in the area. Further,
    as society changes, the concept of legal identity and the legal
    consequences attributed to them inevitably change as well.‖51

(Emphasis supplied)
All legal units are not alike. The conferral of legal personality sub-serves specific
requirements that justify its recognition. The conferral of juristic personality does
not automatically grant an ensemble of legal rights. The contours of juristic
personality i.e. the rights and liabilities that attach upon the object conferred with
juristic personality, must be determined keeping in mind the specific reasons for
which such legal personality was conferred. The limits or boundaries of the rights
ascribed to the new legal person must be guided by the reasons for conferring
legal personality. The parameters of judicial innovation are set by the purpose for
which the judge innovates. An example of this is when courts lift the veil of
corporate personality where the conferral of an independent legal personality no
longer serves the above goals. The application of the doctrine is defined by its
ability to serve the object underlying its creation. The legal innovation will become
unruly if courts were to confer legal personality on an object and subsequently
enlarge the object‘s rights to the point where the original goal of intelligible and

51 Phillip Blumberg, The Multinational Challenge to Corporation Law (Oxford University Press 1993), at page 207
PART J
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practical adjudication is defeated. With this understanding, it is necessary to now
turn to the application of these principles with respect to Hindu idols.
The Hindu idol and divinity

  1. At the outset, it is important to understand that the conferral of legal
    personality on a Hindu idol is not the conferral of legal personality on divinity
    itself, which in Hinduism is often understood as the ‗Supreme Being‘. The
    Supreme Being defies form and shape, yet its presence is universal. In the law of
    Hindu endowments and in the present proceedings, it has often been stated that
    legal personality is conferred on the ‗purpose behind the idol‘. The present
    judgment shall advert to the exact legal significance of this statement. For the
    present, it is sufficient to note that legal personality is not conferred on the
    ‗Supreme Being‘ itself. As observed by this Court in Ram Jankijee Deities v
    State of Bihar52:
    ―19. God is omnipotent and omniscient and its presence is felt
    not by reason of a particular form or image but by reason of a
    particular form or image but by reason of the presence of the
    omnipotent. It is formless, it is shapeless and it is for the
    benefit of the worshippers that there is a manifestation in
    the images of the supreme being. The supreme being has
    no attribute, which consists of pure spirit and which is without
    a second being i.e. God is the only being existing in reality,
    there is no other being in real existence excepting Him.‖
    (Emphasis supplied)
  2. In 1991, the English Court of Appeal in Bumper Development
    Corporation Ltd v Commissioner of Police of the Metropolis53 was called to
    decide the question whether a Hindu temple and a Hindu idol could sue in a court

52 (1999) 5 SCC 50
53 [1991] 1 WLR 1362 (2)
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of law. In 1976, an Indian labourer discovered a ‗Siva Natraja‘ in Pathur, Tamil
Nadu which the labourer subsequently sold to a dealer in religious artefacts.
Other artefacts were subsequently found, including a ‗Sivalingam‘, and were
reinstated in the Pathur temple. In 1982, Bumper Development Corporation
purchased the ‗Siva Natraja‘ in good faith from a dealer in London who produced
a false provenance of the Natraja for the purposes of the sale. The Natraja was
subsequently seized by the Metropolitan Police. At trial, the Government of India
and the state government of Tamil Nadu intervened, along with the Pathur
Temple and the Sivalingam as ―juristic persons‖. The Court of Appeal engaged in
a lengthy discussion on foreign law in English Courts. However, in evaluating the
maintainability of the claim by the Pathur temple as a legal entity, the English
court made the following observations:
―(1) Neither God nor any supernatural being can be a
person in law. A practical illustration of the truth of this
statement is that if the endowments were to vest in God as a
supernatural being litigation between different temples over
their respective rights would be impossible. In any event the
same ―person‖ would be both plaintiff and defendant since, as
Dr. Mukherjea points out, all Hindus always worship the one
Supreme Being. That there is much litigation between
temples in India is clear beyond a peradventure.

(4) Any juristic person must be capable of identification.
This necessitates that ‗person‘ having a name or
description. Since every Hindu idol is a manifestation of
one Supreme Being, one must look elsewhere than to the
name of God for an identification. The Pathur Temple
bears the name of its founder in its title; and that appears to
be the custom in Tamil Nadu. So any idol must in practice be
referred to by association with the name of the temple in
which it is.‖ (Emphasis supplied)

  1. Hinduism understands the Supreme Being as existing in every aspect of
    the universe. The Supreme Being is omnipresent. The idea of a legal person is
    PART J
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    premised on the need to ‗identify the subjects‘ of the legal system. An
    omnipresent being is incapable of being identified or delineated in any manner
    meaningful to the law and no identifiable legal subject would emerge. This
    understanding is reflected in the decisions of this Court as well. In Yogendra
    Nath Naskar v Commissioner of Income Tax, Calcutta54, a three judge Bench
    of this Court was called upon to determine whether a Hindu idol (or ‗deity‘) falls
    within the definition of an ―individual‖ under Section 3 of the Income Tax Act
  2. Justice V Ramaswami speaking for a three judge Bench of this Court held:
    ―Sankara, the great philosopher, refers to the one Reality,
    who, owing to the diversity of intellects (Matibheda) is
    conventionally spoken of (Parikalpya) in various ways as
    Brahma, Visnu and Mahesvara. It is, however, possible that
    the founder of the endowment or the worshipper may not
    conceive of this highest spiritual plane but hold that the
    idol is the very embodiment of a personal God, but that is
    not a matter with which the law is concerned. Neither
    God nor any supernatural being could be a person in law.
    But so far as the deity stands as the representative and
    symbol of the particular purpose which is indicated by
    the donor, it can figure as a legal person. The true legal
    view is that in that capacity alone the dedicated property
    vests in it. There is no principle why a deity as such a legal
    person should not be taxed if such a legal person is allowed
    in law to own property even though in the ideal sense and to
    sue for the property, to realise rent and to defend such
    property in a court of law again in the ideal sense. Our
    conclusion is that the Hindu idol is a juristic entity capable of
    holding property and of being taxed through its Shebaits who
    are entrusted with the possession and management of its
    property.‖
    (Emphasis supplied)
    Legal personality is not conferred on the Supreme Being. The Supreme Being
    has no physical presence for it is understood to be omnipresent – the very ground
    of being itself. The court does not confer legal personality on divinity. Divinity in

54 (1969) 1 SCC 555
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Hindu philosophy is seamless, universal and infinite. Divinity pervades every
aspect of the universe. The attributes of divinity defy description and furnish the
fundamental basis for not defining it with reference to boundaries – physical or
legal. For the reason that it is omnipresent it would be impossible to distinguish
where one legal entity ends and the next begins. The narrow confines of the law
are ill suited to engage in such an exercise and it is for this reason, that the law
has steered clear from adopting this approach. In Hinduism, physical
manifestations of the Supreme Being exist in the form of idols to allow
worshippers to experience a shapeless being. The idol is a representation of the
Supreme Being. The idol, by possessing a physical form is identifiable.

  1. An exploration of the method adopted for the conferral of legal personality
    on Hindu idols and the reason for the conferment is necessary. Chief Justice B K
    Mukherjea‘s, ―The Hindu Law of Religious and Charitable Trusts‖
    demonstrates a timeless quality and has significance in understanding the
    evolution of our law on the subject. Justice Mukherjea notes that even prior to
    courts regulating the Hindu practice of religious endowments, the clear public
    interest in regulating properties dedicated for religious purposes, resulted in the
    practice being regulated by the rulers of the day. He states:
    ―1.36 … It appears however that from very early times
    religious and charitable institutions in this country came under
    the special protection of the ruling authority. In the celebrated
    Rameswar Pagoda case, it was pointed out by the Judicial
    Committee that the former rulers of this country always
    asserted the right to visit endowments of this kind to
    prevent and redress the abuses in their management.
    ―There can be little doubt‖, thus observed Their Lordships,
    ―that the superintending authority was exercised by the older
    rulers.‖ Mr. Nelson in his Madura Manual says: ―… The
    Dharma Kartas held but little communication one with another
    PART J
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    and recognised no earthly superior except the king himself.
    Each was independent of all control and acted altogether
    as he pleased. This freedom led naturally to gross
    abuses and the king was compelled occasionally to
    interfere in the management of some of the churches.‖
    55
    (Emphasis supplied)
  2. In an article which was published in 2010 in the Economic and Political
    Weekly, Gautam Patel traces the historical evolution of endowments. He noted
    the reason for the conferment of personality in law on idols:
    ―Emperors and rulers routinely donated property and cash for
    the establishment, maintenance and upkeep of Hindu shrines.
    When land was made over to a temple, it was in the form of a
    sanad, or grant, or firman, by edict. The Shrinathji temple at
    Nathdwara, for instance, was said to have received a firman
    from the emperor Akbar. Given the colonial obsession with
    orderliness and documentation, this situation presented a
    problem – large areas of land were owned, managed and
    cultivated by shebaits and mohunts who were clearly not
    the owners. Temples were, by their nature, malleable and
    apt to grow and change. The entity with some permanence
    was the idol and it is presumably for that reason that the
    legal concept of the Hindu idol as a juristic entity owning land
    evolved. The reason may have been purely fiscal – these
    lands had to be surveyed, their ownership ascertained, and
    then assessed for (or exempted from) land revenue and other
    taxes. But the ownership of land almost always depended
    on the establishment of a positive act of giving – by
    firman, sanad or any other instrument that unequivocally
    shows a dedication of the land to the idol.‖56

(Emphasis supplied)
The reasons for the recognition of the idol as an entity in law are intrinsically tied
to the historical circumstances in which recognition took place. The setting up of
religious endowments by individuals, merchants and rulers is an age-old practice
in India. However, the colonial administration in India and English law of the time
lacked the legal framework within which to record, tax and ultimately adjudicate

55 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition Eastern Law House, (1983) at
page 28
56 Gautam Patel, Idols in Law, Vol. 45, No.50, Economic and Political Weekly (11-17 December 2010) at page 49
PART J
148
upon claims with respect to Hindu religious endowments. Disputes arose with the
increase in the value of the properties dedicated. The establishment of courts
across the country led to their increasingly having to adjudicate upon claims
concerning endowments, idols, and debutter properties.
J.2 Idols and juristic personality

  1. English and Indian judges in India were called upon to determine the legal
    characteristics of Hindu idols and the properties associated with them. In
    Manohar Ganesh Tambekar v Lakhmiram Govindram57
    , the plaintiffs were
    persons interested in the religious foundation of the temple of Dakor and the
    defendants were recipients of the temple‘s offerings. The plaintiff‘s prayer was
    that the court appoint a receiver for the accountable disposal of the offerings
    made at the temple. On the other hand, the defendants submitted that the
    temple offerings were their own absolute and secular property. A Division Bench
    of the Bombay High Court analysed the circumstances in which the case took
    place and considered the need to confer legal personality on the Hindu idol. The
    Court, speaking through Justice R West observed:
    ―For a period extending over several centuries the revenues
    of the temple seem to have but slightly, if at all, exceeded the
    outlay required to maintain its services, but recently these
    revenues have very largely increased. The law which protects
    the foundations against external violence guards it also
    internally against mal-administration, and regulates,
    conformable to the central principle of the institution, the use
    of its augmented funds.‖

57 ILR (1888) 12 Bom 247
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  1. The Hindu practice of dedicating properties to temples and idols had to be
    adjudicated upon by courts for the first time in the late nineteenth century. The
    doctrine that Hindu idols possess a distinct legal personality was adopted by
    English judges in India faced with the task of applying Hindu law to religious
    endowments. Property disputes arose and fuelled questions about the ownership
    of the properties. Two clear interests were recognised as subjects of legal
    protection. First, there existed the real possibility of maladministration by the
    shebaits (i.e. managers) where land endowed for a particular pious purpose,
    ordinarily to the worship of an idol, was poorly administered or even alienated.
    Second, where the land was dedicated to public worship, there existed the threat
    that access or other religious benefits would be denied to the public, in particular
    to the devotees. Where the original founder of the endowment was not alive and
    the shebait was not the owner of the lands, how were the courts (and through
    them the State) to give effect to the original dedication? To provide courts with a
    conceptual framework within which they could analyse and practically adjudicate
    upon disputes involving competing claims over endowed properties, courts
    recognised the legal personality of the Hindu idol. It was a legal innovation
    necessitated by historical circumstances, the gap in the existing law and by
    considerations of convenience. It had the added advantage of conferring legal
    personality on an object that within Hinduism had long been subject to
    personification. The exact contours of the legal personality so conferred are of
    relevance to the present case to which this judgement now adverts.
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    150
  2. In conferring legal personality on the Hindu idol, courts drew inspiration
    from what they saw as factual parallels in Roman law. Justice B K Mukherjea
    summarises the position:
    ―…from the fifth century onwards – foundations created by
    individuals came to be recognised as foundations in the true
    legal sense, but only if they took the form of Pia Causa, i.e.,
    were devoted to ‗pious uses‘ only, in short, if they were
    charitable institutions. Whenever a person dedicated
    property whether by gift inter vivos or by will – in favour
    of the poor or the sick, or prisoners or orphans, or aged
    people, he thereby created ipso facto a new subject of
    legal rights – the poor house, the hospital and so forth and
    the dedicated property became the sole property of the new
    subject – it became the property of the new juristic person
    whom the founder had called into being.

    1…A private person might make over property by way of
    legacy or gift to a corporation already in existence and might,
    at the same time, prescribe the particular purpose for which
    the property was to be employed, e.g., feeding the poor, or
    giving relief to the sick or distressed. The receiving
    corporation would be in the position of a trustee and would be
    legally bound to spend the funds for the particular purpose.
    The other alternative was for the donor himself to create
    an institution or foundation. This would be a new juristic
    person, which depended on its origin on nothing else but
    the will of the founder, provided it was directed a
    charitable purpose. The foundation would be the owner
    of the dedicated property, and the administrators would be
    the trustees bound to carry out the object of the foundation.‖58
    (Emphasis supplied)
    In Roman law, where property was dedicated to a particular religious or
    charitable purpose and not to an identified donee, the religious/charitable
    purpose itself was elevated to the status of a legal foundation. The foundation
    was a separate legal entity and came to own the dedicated property. Hindu law
    does not make a distinction between religious and charitable purposes. However,
    a clear parallel exists in the case of Hindu endowments.

58 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition, Eastern Law House (1983) at
page 9
PART J
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  1. In Manohar Ganesh Tambekar, the Division Bench of the Bombay High
    Court set out the rationale for and the process by which legal personality is
    conferred on a Hindu idol. Justice West observes:
    ―The Hindu law, like the Roman law and those derived from it,
    recognizes, not only corporate bodies with rights of property
    vested in the corporation apart from its individual members,
    but also juridical persons or subjects called foundations. A
    Hindu, who wishes to establish a religious or charitable
    institution, may, according to his law, express his
    purpose and endow it, and the ruler will give effect to the
    bounty … A trust is not required for this purpose: the
    necessity of a trust in such a case is indeed a peculiarity
    and a modern peculiarity of the English law. In early times
    a gift placed, as it was expressed, ―on the altar of God
    sufficed to convey to the church the lands thus dedicated.

    Such a practical realism is not confined to the sphere of law; it
    is made use of even by merchants in their accounts, and by
    furnishing an ideal centre for an institution to which the
    necessary human attributes are ascribed. … But if there is a
    juridical person, the ideal embodiment of a pious or
    benevolent idea as the centre of the foundation, this
    artificial subject of rights is as capable of taking offerings
    of cash and jewels as of land. Those who take physical
    possession of the one as of the other kind of property incur
    thereby a responsibility for its due application to the purposes
    of the foundation.

    The law which protects the foundations against external
    violence guards it also internally against mal-administration,
    and regulates, conformable to the central principle of the
    institution, the use of its augmented funds. It is only as
    subject to this control in the general interest of the
    community that the State through the law courts
    recognizes a merely artificial person. It guards property
    and rights as devoted, and thus belonging, so to speak,
    to a particular allowed purpose only on a condition of
    varying the application when either the purpose has become
    impracticable, useless or pernicious, or the funds have
    augmented in an extraordinary measure.‖
    (Emphasis supplied)
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    152
  2. The decision in Manohar Ganesh Tambekar indicates that the expression
    of a religious or charitable purpose and the creation of an endowment to
    effectuate it was adequate. The creation of a trust, as in English law was not
    necessary. The creation of an endowment resulted in the creation of an artificial
    legal person. The artificial or juridical person represents or embodies a pious or
    benevolent purpose underlying its creation. Legal personality is conferred on the
    pious purpose of the individual making the endowment. Where the endowment is
    made to an idol, the idol forms the material representation of the legal person.
    This juridical person (i.e. the pious purpose represented by the idol) can in law
    accept offerings of movable and immovable property which will vest in it. The
    legal personality of the idol, and the rights of the idol over the property endowed
    and the offerings of devotees, are guarded by the law to protect the endowment
    against maladministration by the human agencies entrusted with the day to day
    management of the idol.
  3. Shortly after the decision in Manohar Ganesh Tambekar, the Madras
    High Court was called upon to decide a dispute pertaining to the appointment of
    the head of a Mutt. In Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami59
    ,
    a Division Bench examined the legal character of idols, temples and mutts in
    some detail. Justice B Ayyangar went to on to observe:
    ―As already stated, the worshippers are beneficiaries only in a
    spiritual sense, and the endowments themselves are primarily
    intended for spiritual purposes, through indirectly and
    incidentally a good number of people derive material or
    pecuniary benefit therefrom as office-holders, servants or
    objects of charity…The question has not been suggested
    or considered, whether the community itself for whose

59 ILR (1904) 27 Mad 435
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153
spiritual benefit the institution was founded and endowed
may not be more appropriately be regarded as a
corporate body forming the juristic person in whom the
properties of the institution are vested and who act
through one or more of the natural persons forming the
corporate body, these latter being the dharmakartas or
panchayats, &c., charged with the execution of the trusts of
the institution and possessing strictly limited powers of
alienation of the endowments, as defined in the cases cited
above. Though a fluctuating and uncertain body of men
cannot claim a profit a prendre in alieeno solo, nor be the
grantee of any kind of real property (see Goodman v Mayor of
Saltash, yet there is high authority for treating such
community as a corporation or juristic person in relation to
religious foundations and endowments.

For all practical purposes however it is immaterial
whether the presiding idol or the community of
worshippers is regarded as the corporation or juristic
person in which the properties are vested, though from a
juristic point of view there may be a difference of opinion
as to which theory is more scientific. In the words of a
recent writer on Jurisprudence (Salmond‘s ‗Jurisprudence‘
(1902), 346) ―the choice of the corpus into which the law shall
breathe the breath of a fictious personality is a matter of form
rather than of substance, of lucid and compendious
expression, rather than of legal principle,‖ …‖
(Emphasis supplied)
The conferral of juristic personality by courts is to overcome existing shortfalls in
the law and ensure societally satisfactory and legally sound outcomes. Justice
Ayyangar observes that a key societal interest sought to be protected by the
conferral of juristic personality on the idol was the protection of the devotees‘
interests. Justice Ayyangar notes that such protection could also be achieved by
conferring juristic personality on the devotees as a collective. However, given the
widespread personification of the idol, he holds that juristic personality should
vest in the idol on considerations of practicality and convenience.
PART J
154

  1. In Bhupati Nath Smrititirtha v Ram Lal Maitra60, a five judge Bench of
    the Calcutta High Court was constituted to answer the question whether bequests
    by a testator to trustees for the establishment of an idol of the Goddess Kali and
    the worship of the idol after the testator‘s death were invalid due to the Hindu law
    principle which stated that gifts could only be made to sentient beings. The
    testator in that case had dedicated certain properties to an idol. While the
    testator died in 1890, the idol was not consecrated until 1894. A question arose
    as to whether the non-existence of the idol at the time of the testator‘s death
    invalidated the provisions of the will dedicated the property. In an erudite opinion
    holding that such bequests were valid, Chief Justice Lawrence Jenkins held:
    ―… but the testator directed all his property to be placed in the
    hands of persons named by him and subject to certain
    payments these persons were directed to spend the surplus
    income which might be left in the sheba and worship of Kali
    after establishing the image of the Kali after the name of his
    mother. Now this manifestly was a disposition for religious
    purposes and such dispositions are favoured by Hindu Law.
    …In England it has been held that gifts ―for the worship of
    God‖ or ―to be employed in the service of the Lord and
    Master‖ are good. Then does it invalidate the disposition
    that the discretion is for the spending of the surplus
    income on the sheba and worship of Kali ―after
    establishing the image of the Kali after the name of my
    mother.‖ I think not: the pious purpose is still the legatee,
    the establishment of the image is merely the mode in
    which the pious purpose is to be effected.‖
    (Emphasis supplied)
    In his separate opinion, Justice Stephen noted:
    ―But though a dedication to a deity does not constitute a gift,
    it has legal effect. The intention of the donor is that the
    subject-matter of the gift shall be used for doing honour to the
    deity by worship, and for conferring benefit on the
    worshippers and the ministers of the deity who conduct it.
    This worship is properly and I understand necessarily carried

60 ILR (1909-1910) 37 Cal 128
PART J
155
out by having recourse to an image or outer physical object,
but the image is nothing till inspired by the deity. It is the
duty of the sovereign to see that the purposes of the
dedication are carried out.‖
(Emphasis supplied)
In holding that the non-existence of the idol at the time of the testator‘s death did
not matter, the opinion of Chief Justice Jenkins clearly demonstrates that the
endowed property vests in the purpose itself. As he notes, ―the pious purpose is
still the legatee.‖ It is on this purpose that juristic personality is conferred. In
recognising the pious purpose as a juristic person, the state gives effect to, and
protects the endowment. The idol is the material embodiment of the testator‘s gift.
As the gift is one to ensure the continued worship of the deity, the idol is a
physical manifestation of the testator‘s pious purpose. Where courts recognise
the legal personality of the idol they are in effect recognising and protecting the
testator‘s desire that the deity be worshipped.

  1. The understanding espoused by the decisions referred to above is
    concisely summarised by Chief Justice B K Mukherjea in the following terms:
    ―1.48A.- Principle as to personality of institutions.- Apart from
    natural persons and corporations, which are recognised by
    English law, the position under Hindu law is that if an
    endowments is made for a religious or charitable institution,
    without the instrumentality of a trust, and the object of the
    endowment is one which is recognised as pious, being either
    religious or charitable under the accepted notions of
    Hindu law, the institution will be treated as a juristic
    person capable of holding property.

    1.48B. Idols.- The position as to idols is of a special nature. In
    the Hindu Debutter, it seems, the position is slightly different,
    and not the whole endowment, but the idol which as an
    embodiment of a pious or benevolent idea, constitutes
    the centre of the foundation and is looked upon as the
    juristic being in which the Debutter property vests. After
    all, juristic personality is a mere creation of law and has its
    PART J
    156
    origins in a desire for doing justice by providing, as it were,
    centres for jural relations. As Salmond says: ―It may be of as
    many kinds as the law considers proper,‖ and the choice of
    the corpus into which the law shall breathe the breath of
    fictious personality is a matter of form than of substance.‖61
    (Emphasis supplied)
  2. A Hindu may make an endowment for a religious purpose. There is a
    public interest in protecting the properties endowed and ensuring that the original
    pious purpose of the dedicator is fulfilled. The law confers legal personality on
    this pious purpose. However, as Chief Justice B K Mukherjea notes, it is the idol,
    as the material manifestation of the juristic person which is ―looked upon‖ as the
    centre in which the property vests. The idol as an embodiment of a pious or
    benevolent purpose is recognised by the law as a juristic entity. The state will
    therefore protect property which stands vested in the idol even absent the
    establishment of a specific or express trust. The pious purpose, or ‗benevolent
    idea‘ is elevated to the status of a juristic person and the idol forms the material
    expression of the pious purpose through which legal relations are affected. It is
    the pious purpose at the heart of the dedication which is the basis of conferring
    legal personality on the idol and which is the subject of rights and duties. The
    need to confer juristic personality arises out of the need for legal certainty as to
    who owns the dedicated property, as well as the need to protect the original
    intention of the dedicator and the future interests of the devotees. It was open for
    courts to even confer the personality on the community of devotees in certain
    situations, but the idol is chosen as a centre for legal relations as the physical
    manifestation of the pious purpose.

61 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust , 5th Edn. Eastern Law House (1983) at
page 36
PART J
157

  1. The reason for this is outlined in the decision of the Calcutta High Court in
    Mohatap Bahadur v Kali Pada Chatterjee62
    . In the distant past, the Maharaja
    of Burdwan dedicated certain lands for the worship of an idol (the ‗Trilokeswar
    Shiva‘) and tasked the predecessor of the respondent as shebaits for the
    management of the worship. Subsequent to the dedication, the idol was washed
    away by the flooding of a river nearby. The Maharaja later built a new idol in the
    same village. However, the respondents refused to perform worship at the site of
    the new idol on the ground that the original idol had been washed away. The
    appellant‘s sought a direction compelling the respondents to perform necessary
    religious rites at the site of the freshly constructed idol. The Bench consisting of
    Chief Justice Jenkins and Justice Mookerjee held:
    ―4. …It is clear that the property must have been made out by
    the Maharajah to the predecessor of the defendant in order
    that the income might be applied for the worship of the image

[of]

Trilokeswar Shiva. The question arises whether this trust
came to an end when the temple was washed away and the
image was broken…. …Were the contention of the respondent to prevail the
endowment would come to an end, if, as has happened in
this case, the land upon which the temple stood was
washed away by the action of the river. This view is not
supported by any text or any principle of the Hindu law
which has been brought to our notice. It is, on the other hand, clearly opposed to the
principle recognized by a Full Bench of this court in the
case of Bhupati Nath Smrititirtho v. Ramlal Maitra. If then
the endowment was not destroyed when the land upon which
the temple stood was washed away and the image was
broken, what has happened since then to alter the position of
the parties? The defendant is in the same position as if he
held a service tenure. The land was given to him for definite
purpose, namely, that he might apply the income thereof for

62 AIR 1914 Cal 200
PART J
158
the purpose of the service of the image established by the
Maharaja….‖
(Emphasis supplied)
The idol constitutes the embodiment or expression of the pious purpose upon
which legal personality is conferred. The destruction of the idol does not result in
the termination of the pious purpose and consequently the endowment. Even
where the idol is destroyed, or the presence of the idol itself is intermittent or
entirely absent, the legal personality created by the endowment continues to
subsist. In our country, idols are routinely submerged in water as a matter of
religious practice. It cannot be said that the pious purpose is also extinguished
due to such submersion. The establishment of the image of the idol is the manner
in which the pious purpose is fulfilled. A conferral of legal personality on the idol
is, in effect, a recognition of the pious purpose itself and not the method through
which that pious purpose is usually personified. The pious purpose may also be
fulfilled where the presence of the idol is intermittent or there exists a temple
absent an idol depending on the deed of dedication. In all such cases the pious
purpose on which legal personality is conferred continues to subsist.

  1. After independence, the principles applicable to the Hindu law of
    endowments were affirmed by a four judge bench of this Court in Deoki Nandan
    v Murlidhar63. In 1919, a Hindu testator executed a will bequeathing his lands to
    the idol (or ‗Thakur‘) of Shri Radhakrishnaji. A dispute arose between the direct
    descendant of the testator and his distant agnates on the management of the
    Thakur. It was contended that the Thakur was being mismanaged and the public

63 1956 SCR 756
PART J
159
was denied worship. A declaration that the Thakurdwara was a public temple was
sought. The issue facing this Court was how to construct the scope of the
dedication in the testator‘s will. Justice Venkatarama Ayyar, speaking for this
Court, held:
―6. …The true purpose of a gift of properties to the idol is not
to confer any benefit on God, but to acquire spiritual benefit
by providing opportunities and facilities for those who desire
to worship. In Bhupati Nath Smrititirtha v Ram Lal Maitra it
was held on a consideration of these and other texts that a
gift to an idol was not to be judged by the rules applicable to a
transfer to a ‗sentient being‘, and that the dedication of
properties to an idol consisted in the abandonment of the
owner of his dominion over them for the purpose of their
being appropriated for the purposes which he intends.
Thus, it was observed by Sir Lawrence Jenkins C.J at p.
138 that ―the pious purpose is still the legatee, the
establishment of the image is merely the mode in which
the pious purpose is to be effected‖ and that ―the
dedication to a deity‖ may be ―a compendious
expression of the pious purpose for which the dedication
is designed‖.

  1. When once it is understood that the true beneficiaries of
    religious endowments are not the idols but the
    worshippers, and that the purpose of the endowment is
    the maintenance of that worship for the benefit of the
    worshippers, the question whether an endowment is private
    or public presents no difficulty. The cardinal point to be
    decided is whether it was the intention of the founder that
    specified individuals are to have the right of worship at the
    shrine, or the general public or any specified portion thereof.‖
    (Emphasis supplied)
    Upon making an endowment, the donor relinquishes all claims to the endowed
    property. The property now vests in the pious purpose at the heart of the
    endowment which is recognised as a legal person. The idol forms the material
    manifestation of the pious purpose and the consequent centre of jural relations.
    The beneficiaries of the endowment are worshippers and the proper maintenance
    PART J
    160
    of worship to the idol is to enable the worshippers to achieve the spiritual benefit
    of being in communion with the divine.
  2. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta64
    ,
    in deciding that a Hindu idol (or ‗deity‘) fell within the definition of ―individual‖
    under Section 3 of the Income Tax Act 1922, Justice Ramaswami speaking for a
    three-judge Bench of this Court held:
    ―6. …It should however be remembered that the juristic
    person in the idol is not the material image, and it is an
    exploded theory that the image itself develops into a legal
    person as soon as it is consecrated and vivified by the Pran
    Pratishta ceremony. It is not also correct that the Supreme
    Being of which the idol is a symbol or image is the recipient
    and owner of the dedicated property.

    The correct legal position is that the idol as representing
    and embodying the spiritual purpose of the donor is the
    juristic person recognised by law and in this juristic
    person the dedicated property vests. As observed by Mr.
    [J]ustice B.K. Mukherjea: ―With regard to the debutter… It is
    not only a compendious expression but a material
    embodiment of the pious purpose and though there is
    difficulty in holding that property can reside in the aim or
    purpose itself, it would be quite consistent with sound
    principles of Jurisprudence to say that a material object
    which represents or symbolises a particular purpose can
    be given the status of a legal person, and regarded as
    owner of the property which is dedicated to it.‖ … The
    legal position is comparable in many respects to the
    development in Roman Law.‖ (Emphasis supplied)

64 (1969) 1 SCC 555
PART J
161
The purpose behind the dedication

  1. Similar to the conceptual grounding of juristic personality in the case of a
    ship in admiralty law to personify actions in rem, the material object (i.e. idol),
    seen as an embodiment of the purpose behind the dedication, was chosen as the
    site of legal relations. The creation by judicial interpretation of an entity in law
    sub-served an important function. For it obviated a situation that would arise if,
    despite a dedication by a Hindu for a pious purpose, there existed no legally
    recognised entity which could receive the dedication. Such a situation was
    obviated by the judicially recognised principle that where an endowment is made
    for a religious or charitable institution and the object is pious, the institution will be
    treated as a juristic person even in the absence of a trust. Similarly, where the
    dedication is for an idol to be worshipped, the interests of present and future
    devotees would be at risk in the absence of a legal framework which ensured the
    regulation of the dedication made. The conferment of legal personality on the
    pious purpose ensured that there existed an entity in which the property would
    vest in an ideal sense, to receive the dedication and through whom the interests
    of the devotees could be protected. This was for the purpose of fulfilling the
    object of the dedication and through the performance of worship in accordance
    with religious texts, ensuring that the devotees realised peace through prayer.
  2. The recognition of juristic personality was hence devised by the courts to
    give legal effect to the Hindu practice of dedicating property for a religious or
    ‗pious‘ purposes. The founder or testator may choose to dedicate property for the
    use of a pious purpose. In many of the above cases, this pious purpose took the
    PART J
    162
    form of continued maintenance and worship of an idol. There was a clear state
    interest in giving effect to the will of the founder or testator who has so dedicated
    property, as well as for ensuring that the property is at all times used for the
    purpose of the dedication. A legal fiction was created by which legal personality
    was conferred on the religious or charitable purpose for which the endowment
    was made. In the case of a dedication for an idol, the juristic personality finds
    ‗compendious expression‘ in the idol itself. By conferring legal personality, the
    court gave legal effect to the dedication by creating an entity to receive the
    properties so dedicated. By stating that the artificial person created is in fact the
    owner of the dedicated properties, the court guarded against maladministration
    by the shebait. Even though the artificial legal person cannot sue without the
    assistance of a natural person, a legal framework was brought into existence by
    which claims for and against the dedicated property could be pursued.
  3. Though conceptually courts attributed legal personality to the intention of
    the founder, a convenient physical site of legal relations was found in the physical
    idol. This understanding is reiterated by this Court‘s observations in Deoki
    Nandan that the idol is a ―compendious expression‖ of the testator‘s pious
    purpose. The idol, as a representation or a ―compendious expression‖ of the
    pious purpose (now the artificial legal person) is a site of legal relations. This is
    also in consonance with the understanding that even where an idol is destroyed,
    the endowment does not come to an end. Being the physical manifestation of the
    pious purpose, even where the idol is submerged, not in existence temporarily, or
    destroyed by forces of nature, the pious purpose recognised to be a legal person
    continues to exist.
    PART J
    163
  4. The extent to which the doctrine arose out of legal necessity and
    convenience is exemplified by Justice Ayyangar in Vidyapurna Tirtha Swami v
    Vidyanidhi Tirtha Swami65 when the learned judge noted that it was even
    possible, by legal fiction, to recognise the community or collective of devotees as
    a single legal person. As he noted, this would have equally served the court‘s
    goals of creating an adequate legal framework for protecting the dedicated
    properties and the interests of the devotees. However, the court notes that, as
    there was no ―practical‖ difference, the legal fiction was applied to the idol and not
    to the devotees for the sake of simplicity. This course of precedent denotes how
    the continued personification of the idol in religious practice laid the foundations
    for the court to choose the idol as the site of legal relations.
  5. The recognition of the Hindu idol as a legal or ―juristic‖ person is therefore
    based on two premises employed by courts. The first is to recognise the pious
    purpose of the testator as a legal entity capable of holding property in an ideal
    sense absent the creation of a trust. The second is the merging of the pious
    purpose itself and the idol which embodies the pious purpose to ensure the
    fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person.
    The property endowed to the pious purpose is owned by the idol as a legal
    person in an ideal sense. The reason why the court created such legal fictions
    was to provide a comprehensible legal framework to protect the properties
    dedicated to the pious purpose from external threats as well as internal
    maladministration. Where the pious purpose necessitated a public trust for the
    benefit of all devotees, conferring legal personality allowed courts to protect the

65 ILR (1904) 27 Mad 435
PART J
164
pious purpose for the benefit of the devotees.

  1. Having set out the history and the underlying basis of the legal innovation
    surrounding the conferral of juristic personality on Hindu idols, it becomes
    necessary to advert to the principle question before us. The present case turns,
    in a significant measure, on the answer to the contention urged on behalf of the
    plaintiffs in Suit 5 that the first and second plaintiffs – Bhagwan Sri Ram Virajman
    and Asthan Shri Ram Janam Bhumi are juristic persons. If this contention is
    accepted, this Court will then be required to adjudicate upon the legal
    consequences of the second plaintiff being declared a juristic person.
    J.3 Juristic personality of the first plaintiff
  2. For the devotees of Lord Ram, the first plaintiff in Suit 5, ―Bhagwan Sri
    Ram Virajman‖ is the embodiment of Lord Ram and constitutes the resident deity
    of Ram Janmabhumi. The faith and belief of the Hindu devotees is a matter
    personal to their conscience and it is not for this Court to scrutinise the strength
    of their convictions or the rationality of their beliefs beyond a prima facie
    examination to ascertain whether such beliefs are held in good faith.
  3. The oral and documentary evidence shows that the Hindu devotees of
    Lord Ram hold a genuine, long standing and profound belief in the religious merit
    attained by offering prayer to Lord Ram at the site they believe to be his birthplace. Evidence has been led by the plaintiffs in Suit 5 to show a long practice of
    Hindu worship to Lord Ram at the disputed site. The travel logs of Joseph
    Tieffenthaler in the eighteenth century and Robert Montgomery Martin in the
    PART J
    165
    early nineteenth century record the prevalence of Hindu worship at the disputed
    site. They also reference special occasions such as Ram Navmi during which
    Hindu devotees converged upon the Janmasthan from distant areas motivated by
    the desire to offer prayer to Lord Ram. The continued faith and belief of the Hindu
    devotees in the existence of the Janmasthan below the three domed structure is
    evidenced by the activities of the Nirmohis, individual devotees such as Nihang
    Singh and the endless stream of Hindu devotees over the years who visited the
    disputed site. This is testament to the long-held belief in the sanctity of the
    disputed site as a place of worship for the Hindu religion. It is not necessary to
    the determination of the legal personality of the first plaintiff in Suit 5 to establish
    whether the devotees believed that the exact spot under the central dome was
    the birth-place of Lord Ram or whether the faith and belief of the devotees itself
    can confer title. These questions are addressed at a later part of this judgement.
    For the present purposes, it is sufficient to note that the factum of Hindu belief in
    the sanctity of the disputed site is established by evidence.
  4. For the purposes of recognising a legal person, the relevant inquiry is the
    purpose to be achieved by such recognition. To the extent such purpose is
    achieved, the form or corpus of the object upon which legal personality is
    conferred is not a matter of substance but merely a question of form. As
    observed by Salmond, so long as the conferral of legal personality serves the
    purpose sought to be achieved, legal personality may even be conferred on an
    abstract idea. In the case of Hindu idols, legal personality is not conferred on the
    idol simpliciter but on the underlying pious purpose of the continued worship of
    the deity as incarnated in the idol. Where the legal personality is conferred on the
    PART J
    166
    purpose of a deity‘s continued worship, moving or destroying the idol does not
    affect its legal personality. The legal personality vests in the purpose of continued
    worship of the idol as recognised by the court. It is for the protection of the
    continued worship that the law recognises this purpose and seeks to protect it by
    the conferral of juristic personality.
  5. In addition to the continued worship of the deity, legal personality is
    conferred on Hindu idols to provide courts with a conceptual framework within
    which to practically adjudicate disputes involving competing claims over disputed
    property endowed to or appurtenant to Hindu idols. In order to adjudicate
    disputes, the court locates a site of jural relations to determine proprietary claims,
    maladministration by shebaits and protect the interests of devotees. The law thus
    protects the properties of the idol even absent the establishment of a specific or
    express trust. In the proceedings before us, the legal rights and properties of the
    first plaintiff in Suit 5 were in dispute. However, no submissions were made
    challenging the legal personality of the first plaintiff. Significantly, Dr Rajeev
    Dhavan, learned Senior Counsel appearing for the plaintiffs in Suit 4 admitted the
    juristic personality of the first plaintiff. The question of the legal personality of the
    first plaintiff is distinct from the properties that appertain to the first plaintiff. The
    determination of the properties that vest in the deity is discussed in light of the
    competing claims to the property later in this judgement.
  6. In the present case, the first plaintiff has been the object of worship for
    several hundred years and the underlying purpose of continued worship is
    apparent even absent any express dedication or trust. The existence of the idol is
    PART J
    167
    merely a question of form, or corpus, and the legal personality of the first plaintiff
    is not dependent on the continued existence of the idol. At the heart of the
    present dispute are questions pertaining to the rightful manager of the deity and
    the access of the devotees of Lord Ram to the idols. To ensure the legal
    protection of the underlying purpose and practically adjudicate upon the dispute,
    the legal personality of the first plaintiff is recognised.
    J.4 Juristic personality of the second plaintiff
    Submissions
  7. Mr K Parasaran, learned Senior Counsel appearing on behalf of the
    plaintiffs in Suit 5 urged that the second plaintiff is a juristic person. He submitted
    that in Hindu Law the concept of a juridical person is not limited to idols.
    According to Mr Parasaran, the relevant question is whether prayer is offered to
    the deity and not the form in which the deity appears. It was contended that
    ―Asthan Sri Ram Janam Bhoomi‖ is an object of worship and personifies the spirit
    of the divine. The faith of the devotees regards the land as a deity and prayer is
    offered to it. Hence, it was on this basis that the plaintiffs in Suit 5 submit that this
    court must confer juristic personality on the land represented as Ram
    Janmasthan. To support this contention, it was urged that God is shapeless and
    formless and there is no requirement that the object of worship be an idol. It was
    urged that the performance of the parikrama (circumambulation) around the
    disputed spot with the faith and belief that it is the birth-place of Lord Ram
    delineates the boundaries of the property on which the status of a juristic entity
    must be conferred. To support this contention, Mr Parasaran relied on the
    PART J
    168
    following decisions, which shall be adverted to in the course of the judgment:
    Manohar Ganesh Tambekar v Lakhmiram Govindram66
    , Bhupati Nath
    Smrititirtha v Ram Lal Maitra67
    , Rampat v Durga Bharthi
    68
    , Ram Brahma v
    Kedar Nath69
    , Madura, Tirupparankundram v Alikhan Sahib70
    , The Board of
    Commissioners for Hindu Religious Endowments, Madras v Pidugu
    Narasimhan71
    , TRK Ramaswami Servai v The Board of Commissioners for
    the Hindu Religious Endowments, Madras72
    , The Poohari Fakhir Sadavarthy
    of Bondipiputram v The Commissioner, Hindu Religious and Charitable
    Endowments,
    73 Venkataramana Murthi v Sri Rama Mandhiram74
    , Sastri
    Yagnapurushad Ji v Muldas Bhudardas Vaishya75
    , Yogendra Nath Naskar v
    CIT, Calcutta76
    , Kamaraju Venkata Krishna Rao v Sub Collector, Ongole77
    ,
    Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass78;
    and Thayarammal v Kanakammal79
    .
  8. Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the
    plaintiffs in Suit 5 adopted the submissions of Mr Parasaran that the second
    plaintiff in Suit 5 is a juristic person. He urged that there is a distinction between:
    (i) the land being a deity; (ii) the land being the abode of a deity; and (iii) the land
    being the property of a deity. It was urged that in the present case, the land

66 ILR 1888 12 Bom 247
67 ILR 1909 37 Cal 128
68 AIR 1920 Oudh 258
69 (1922) 36 CLJ 478
70 (1931) 61 Mad. LJ 285
71 1939 1 MLJ 134
72 ILR 1950 Mad 799
73 1962 Supp 2 SCR 276
74 (1964) 2 ANWR 457
75 (1966) 3 SCR 242
76 (1969) 1 SCC 555
77 (1969) 1 SCR 624
78 (2000) 4 SCC 146
79 (2005) 1 SCC 457
PART J
169
constituting the disputed site, is an object of worship and is itself the deity. Mr
Vaidyanathan urged that the determination of the second plaintiff as a juristic
person renders infructuous questions of possession, joint-possession or adverse
possession as the land itself is a legal person and no other person can possess a
legal personality. It was urged that the mere fact that a mosque existed at the
disputed site cannot evidence a claim of either title or joint possession on behalf
of the Sunni Waqf Board. By an extension of the same argument, once it is held
that the disputed site is a juristic person, no partition of the land can be affected
as a deity, recognised as a legal person is impartible and cannot be divided. Any
division of the property will amount to a destruction of the deity. It is on this basis
that the impugned judgment of the High Court directing a three-way division of
the property was challenged. Reliance was placed in this regard on the decisions
in Pramatha Nath Mullick v Pradyumna Kumar Mullick80
, Idol of Thakurji Shri
Govind Deoji Maharaj, Jaipur v Board of Revenue, Rajasthan81, and Profulla
Chorone Requitte v Satya Chorone Requitte82
.

  1. Mr Vaidyanathan submitted that the disputed property, being a legal
    person, is res nullius. Since the disputed property is a juristic person, it is not
    alienable. It was contended that land which is res nullius or res extra
    commercium cannot be acquired by adverse possession. It was urged that even
    if the image of the idol is broken, a deity is immortal and thus, the construction of
    the mosque on the land did not take away from its character as a deity. Reliance
    was placed on the decisions in Mahant Ram Saroop Dasji v SP Sahi, Special

80 (1924-25) 52 IA 245
81 (1965) 1 SCR 96
82 (1979) 3 SCC 409
PART J
170
Officer-in-Charge of the Hindu Religious Trusts83
, Ram Jankijee Deities v
State of Bihar84
, Amrendra Pratap Singh v Tej Bahadur Prajapati85
,
Thayarammal v Kanakammal86 and Rajasthan Housing Board v New Pink
City Nirman Sahkari Samiti Limited87
.

  1. On the other hand, Dr Rajeev Dhavan, learned Senior Counsel appearing
    for the Sunni Central Waqf Board, the plaintiffs in Suit 4, urged that the ‗Asthan
    Ram Janma Bhumi‘ (the second plaintiff in Suit 5) is not a juristic person. He
    submitted that the contention that the disputed land is a juristic person was raised
    for the first time only in 1989. Dr Dhavan urged that there are two separate and
    distinct issues that have arisen before this Court. One concerns the faith and
    belief that Lord Ram was born in Ayodhya and the evidence adduced to this
    effect. The other is the set of legal consequences that flow from the disputed
    property being elevated to the status of a juristic person. Dr Dhavan submitted
    that while the faith and belief of a sect that religious significance attaches to the
    birth-place of Lord Ram cannot be questioned, the precise site which constitutes
    the place of birth is in dispute. Moreover, the property cannot be elevated to the
    status of a juristic person only on the basis of faith and belief that it is the birthplace of Lord Ram. To this end, it was submitted that the subjective belief of a
    certain section of devotees cannot lead to the objective consequence of a
    proprietary claim in law. It was urged that in the Vedic period, the worship of
    physical objects of nature was practiced in ancient India. Underlying the worship

83 1959 Supp (2) SCR 583
84 (1999) 5 SCC 50
85 (2004) 10 SCC 65
86 (2005) 1 SCC 457
87 (2015) 7 SCC 601
PART J
171
of the object was the purpose it served. Dr Dhavan contended that the status of
juristic personality does not attach to every object of religious significance, and
that a positive act of sanctification or recognition is required.

  1. Dr Dhavan further submitted that the conferment of legal personality on
    immoveable property is not supported by the existing law on the legal personality
    of Hindu idols and that conferring legal personality on land would be an
    innovation leading to the insulation of land from any form of adjudication. Legal
    impregnability would be conferred merely on the basis of the faith and belief of
    devotees. It was urged that the conferral of juristic personality on the second
    plaintiff would create two legal regimes – one applicable to idols and the other to
    land – both with distinct rights, power, duties and interests. Dr Dhavan drew a
    distinction between the applicable regime governing the idol and the regime
    governing land (as emerging from the submissions of the plaintiffs in Suit 5) in the
    following terms:
    (i) The legal regime applicable to the first plaintiff as a recognised Hindu
    idol – properties of the idol vest in it in an ideal sense; any claim to title is
    actionable only at the behest of the shebait (unless the shebait has acted
    contrary to the interests of the idol); and the law of adverse possession
    and limitation would apply to claims involving property owned by the idol;
    and
    (ii) The legal regime applicable to the second plaintiff – juristic recognition
    would be premised on the subjective belief of the devotees that the area is
    a deity; the conferral of juristic personality renders infructuous any
    PART J
    172
    competing proprietary claims; and the law of limitation and adverse
    possession are inapplicable to the property in question.
  2. Dr Dhavan argues against accepting any consequence as it emerges
    based on the above distinction. Dr Dhavan contended that the conferral of
    juridical personality on the second plaintiff would carve out a sphere of legal
    impregnability. He submitted that while recognising the idol as a legal person is
    legally defensible and consistent with the jurisprudence of this Court, conferring
    legal personality on land itself is a legal innovation conferring rights that are not
    available to the first plaintiff. It was finally urged that no distinction must be drawn
    between Indic religions and other religions and no plea for constitutional
    protection could be taken by the plaintiffs in Suit 5 in what is essentially a civil
    matter. This would result in the faith and belief of one religion influencing the
    outcome of a civil adjudication on private rights between two religious
    communities.
    These rival submissions will now be analysed.
    Distinguishing religious significance and juristic personality
  3. Recognition of the religious significance of a place as a place of public
    worship is conceptually distinct from recognising the place as a juristic person.
    Ram Janmabhumi is undoubtedly of religious significance to the Hindus based on
    the faith and belief that it is the birth-place of Lord Ram. A determination by this
    Court of whether or not the disputed site is a juridical person will not in any
    manner detract from the significance of the faith and belief of the Hindu
    PART J
    173
    community.
  4. To support their contention that the second plaintiff is a juristic person,
    learned Senior Counsel appearing for the plaintiffs in Suit 5 relied on a wealth of
    precedent. A close reading of those decisions indicates that the counsel have
    selectively relied on extracts to support the contention that the disputed site is a
    juridical person. To determine the extent to which they support the contentions
    urged by the plaintiffs in Suit 5, it would be necessary now to analyse the cases
    relied upon and examine the context in which they were adjudicated.
  5. In Manohar Ganesh Tambekar v Lakhmiram Govindram88, the plaintiff
    instituted a suit as a party interested in the maintenance of the religious
    foundation of the temple dedicated to a deity. The plaintiff sought to make the
    defendants, who were the recipients of the offerings at the temple, accountable
    as trustees proper. The defendants claimed that they were the absolute owners
    and held all offerings as private property. A Division Bench of the Bombay High
    Court held that while private guilds may exist, under English law an association
    consisting of a fluctuating or undefined class of individuals, whether or not it
    exists for charitable purposes, cannot be vested with property without
    incorporation. The defendants however put themselves forward as a body of
    proprietors with revenue arising from the accumulated offerings of articles of
    value laid at the feet of the idol. The Court, speaking through Justice R West
    observed:
    ―9. The evidence recorded in the case, including that of many
    donors to the idol Shri Ranchhod Raiji, shows that having
    discharged a religious duty or gained religious merit by a

88 ILR 1888 12 Bom 247
PART J
174
gift to the deity, the votary is but little interested in what
afterwards becomes of the offering …. Still he must
needs be and is concerned in the maintenance of a
decent and orderly worship. …He desires a regular and
continuous or at least a periodical round of sacred
ceremonies, which might fail if the offerings of past years
were all squandered, while those of any given year fell
short. The sevaks seem to have received the offerings, both
of immovables and of moveables, with a consciousness,
though but a hazy consciousness, that they were bound, out
of the funds thus coming to them, to provide for the worship of
the idol and the convenience of the pilgrims who resort to the
temple.‖ (Emphasis supplied)
The sevaks (defendants) admitted to their responsibility to take care of the
temple. Articles of value were to be consigned to the bhandari. It is in this context
that the Court held:
―11. … Mr. Macpherson admitted for the defendants in this
case that they could not sell the lands bestowed on the idol
Shri Ranchhod Raiji. This restriction is like the one by which
the Emperor forbade the alienation of dedicated lands under
any circumstances Vyav. May., Chap. IV, S. VII, p. 23; Nov.
120, cap., 10. It is consistent with the grants having been
made to the juridical person symbolized or personified in the
idol at Dakor. It is not consistent with this juridical person’s
being conceived as a mere slave or property of the sevaks
whose very title implies not ownership, but service of the god.
It is indeed a strange, if not wilful, confusion of thought by
which the defendants set up the Shri Ranchhod Raiji as a
deity for the purpose of inviting gifts and vouchsafing
blessings, but, as a mere block of stone, their property for the
purpose of their appropriating every gift laid at its feet.. But if
there is a juridical person, the ideal embodiment of a
pious or benevolent idea as the centre of the foundation,
this artificial subject of rights is as capable of taking
offerings of cash and jewels as of land.‖
(Emphasis supplied)
The decision clarifies that an idol as a juridical person is the ―ideal embodiment‖
of a pious or benevolent idea. The status of a juristic person was conferred on the
idol as an entity which encompasses the purpose itself in which capacity the
PART J
175
properties and offerings vest. The observations in this case affirm the position
that juridical personality was conferred on the pious purpose and the property
endowed or accumulated did not itself become a juristic entity. It is not the
property endowed which is a juridical person – it is the idol which as an
embodiment of a pious purpose which is recognised as a juristic person, in whom
the property stands vested.

  1. In Rampat v Durga Bharthi89, the respondent claimed, as Mahant of the
    ‗Asthan‘ as well as under the deed of settlement, that he was entitled to recover
    properties which appertain to the ‗Asthan‘ of Parela. One Mr Ghattari constructed
    a monastery (‗Asthan‘) at Parela and consecrated its building towards the service
    of his ascetic brotherhood and purchased the suit villages for the maintenance of
    the institution. Justice Nazir Hasan speaking for the Oudh Judicial
    Commissioner‘s Court on the nature of the ‗Asthan‘ held:
    ―In my opinion, the Asthan at Parela, as founded, was
    completely in accordance with the type of monasteries of the
    old days. The several legal concepts which emerge out of the
    foregoing narrative may be stated to be as follows: (1) It is a
    congregation of Sannyasis, celibates and ascetics, who
    has entirely cut themselves off from worldly ties. (2) The
    properties appertaining to the Asthan are held in trust for the
    purposes of the Asthan. (3) The purposes of the Asthan are
    maintenance of the devotees and propagation of charities. (4)
    The head of the Asthan is the trustee of the institution and of
    the properties attached to it….An Asthan therefore is
    essentially an institution of Sannyasis, celibates and
    ascetics – having no wordly connection either of wealth
    or of family.‖
    (Emphasis supplied)

89 AIR 1920 Oudh 258
PART J
176
In this view, the ‗Asthan‘ was not a building but a seat of religious learning. The
nature of the ‗Asthan‘ abundantly clarifies that is was not treated as corporeal
property, but a charitable institution of learning which was considered to be the
juridical person. The physical property that was the monastery was not treated as
a juristic person. The court concluded that it was the charitable institution as a
juristic person in which the suit villages vested.

  1. In Rambrahma Chatterjee v Kedar Nath Banerjee90, the respondents
    instituted a suit for a declaration that they were entitled to participate in the bhog
    offered to three idols which were consecrated by the common ancestors of the
    respondents and the appellant. A temple was constructed, and properties were
    dedicated to the idols. The respondents, as descendants of the founders through
    their daughters claimed a practice of participating in the bhog and the courts
    below found that the descendants in the male line had consistently been
    shebaits. The question which arose for determination was whether it was
    competent for the founder to direct that the shebaitship should be vested in the
    descendants through the son and that the descendants through the daughters
    have a right to participate in the bhog offering. The High Court of Calcutta, held
    as follows:
    ―…a charitable corporation, in so far as it is charitable, is the
    creature of the founder…There is no reason why the founder,
    who is competent to provide for the government and
    administration of the trust, should not be able to give a
    direction for its management, which is not inconsistent with its
    character as a religious and charitable trust…The test in each
    case is, whether the direction given by the founder is
    inconsistent with the nature of the endowment as a religious
    and charitable trust and is a colourable device for the evasion
    of the law of perpetuities.‖

90 (1922) 36 CLJ 478
PART J
177
The court noted that for over two centuries, shebaitship rights had vested in the
descendants through the sons and that the descendants through the daughters
exercised a right to participate in the bhog offering. In this context, the court held
that it would be slow to interfere with the exercise of these rights over a long
duration of time without question and a reasonable presumption will be drawn in
favour of such a right. The plaintiffs in Suit 5 relied on the observation in this case
that a deity is conceived as a real living being. In this regard, the court noted:
―…There is a fundamental distinction between a gift to a
sentient being and an offering or dedication to a deity. Subject
to special usages to the contrary, the offerings do not become
the property of the officiating priest, but contribute to the
maintenance of the shrine with all its rights, ceremonies and
charities… It is sufficient to state that the deity is, in short,
conceived as a living being and is treated in the same
way as the master of the house would be treated by his
humble servant. The daily routine of life is gone through
with minute accuracy; the vivified image is regaled with
the necessaries and luxuries of life in due succession,
even to the changing of clothes, the offering of cooked
and uncooked food, and the retirement to rest. The
dedicated food, known as bhog, is, after completion of the
worship, distributed in charity amongst members of the family
as also among guests invited and uninvited; for in the oldest
Brahminical writings hospitality is regarded as the discharge
of a common debt to humanity and the guest is honoured as
a divinity. In our opinion, a direction that the descendants of
the daughters of the founder should participate in such a
distribution of consecrated food, is in no way inconsistent with
the purpose of the endowment.‖
(Emphasis supplied)
The method of worshipping an established deity as a real person is separate and
distinct from the conferral of juristic personality in law. Human personality is
distinct from legal personality. The court made a reference to the methods of
worship performed for an established deity, which is in accordance with the faith
and belief of the worshippers. No question of a juristic person arose in this case.
PART J
178
Madhura Tirupparankundram

  1. The plaintiffs in Suit 5 have then placed reliance on the decision of the
    Privy Council in Madura, Tirupparankundram v Alikhan Sahib91. It was urged
    that in this case an entire hill, as a place of public worship, was recognised as a
    juristic person on the basis of the circumambulation performed around it.
    Consequently, in the present case, the performance of the parikrama around the
    disputed site should (it has been urged) have the effect of the land being elevated
    to the status of a juristic person.
  2. The Privy Council in Madura Tirupparankundram was concerned with the
    ownership of a barren hill in the Madura District of Madras. There was a mosque
    at the highest point of the hill. The Tirupparankundram Temple, represented by
    its manager, instituted a suit claiming the whole hill as temple property (with the
    exception of certain cultivated and assessed lands and the site of the mosque).
    The Mohammedan defendants asserted ownership over the mosque and a
    portion of the hill known as Nellitope. The Secretary of State claimed to be the
    owner of all unoccupied portions of the hill. The Subordinate judge of Madura
    decreed in favour of the Plaintiffs (with the exception of the Nellitope, the mosque
    itself and the flights of stairs leading to it). The Mohammedan defendants filed an
    appeal and the Secretary of State was directed to be a party to the appeal.
    Despite a finding that the Hindus and Mohammedans had rights over the hill, and
    without specifying what these rights were, the High Court held that the
    Government was the owner of the hill. Around the base of the hill, worshippers

91 (1931) 61 Mad LJ 285
PART J
179
performed the Pradakshinan by a circumambulation of the hill. This path was also
used for processions with the temple car and was known as Ghiri Veedhi. While
the judgment of the High Court noted evidence on record that the hill as a whole
was worshipped by the Hindu community as a Linga, the question at the heart of
the dispute concerned the question of ownership over the unoccupied portions of
the hill within the Ghiri Veedhi. Under Lord Clive‘s treaty with Azim-ul-Dowlah in
1801, Madura came under the control of the East India Company. The High Court
took the view that, post 1801 the entire hill, being part of the village, became
Government property.

  1. The Privy Council held that acts of ownership had been exercised
    consistently by the temple for the greater part of a century over all unoccupied
    portions of the land. Expenses were also incurred for the upkeep of smaller
    shrines situated within the Ghiri Veedhi. The temple was held to have been in
    possession of the unoccupied portion of the hill from time immemorial which had
    been treated by the temple as temple property. The Privy Council held that, save
    and except the mosque, there was ―no evidence of expropriation from the
    remainder‖ of the hill. Sir George Lowndes held:
    ―The only rights which the temple can assert against the
    respondent are rights which the East India Company granted
    to them or allowed them to retain…and their Lordships think
    the evidence shows that the temple was left after 1801 in
    undisturbed possession of all that it now claims…Their
    Lordships do not doubt that there is a general presumption
    that waste lands are the property of the Crown, but they think
    that it is not applicable to the facts of the present case where
    the alleged waste is, at all events physically, within a
    temple enclosure…On the whole their Lordships are of
    opinion that the appellant has shown that the unoccupied
    portion of the hill has been in the possession of the temple
    PART J
    180
    from time immemorial and has been treated by the temple
    authorities as their property.‖
    (Emphasis supplied)
    A close reading of the judgment makes it evident that the Privy Council was only
    concerned with (i) the unoccupied portions of the land and the protection of other
    proprietary rights in the hill; and (ii) the ownership of the property by the temple.
    The Privy Council was not concerned with the elevation of the hill itself to the
    status of a juristic person. There is a distinction between the ownership of the
    property by the temple, and the conferral of legal personality on land. Where land
    is owned by a person, it cannot be a juristic person, for no person can own a
    deity as a juristic person. This case does not further the argument advanced by
    the plaintiffs in Suit 5 that the disputed property is itself a juristic person.
    Temples governed by statutes
  2. In The Board of Commissioners for Hindu Religious Endowments,
    Madras v Pidugu Narasimhan92
    , the Board framed a scheme on the ground that
    the institution in question was a temple within the meaning of the Madras Hindu
    Religious Endowments Act 1863. The respondent instituted a suit challenging the
    declaration of the institution as a temple under the Act. A Division Bench of the
    Madras High Court observed that the institution had been in existence for several
    centuries and had over time become a place of worship. The court observed that
    the worship must be of sufficient significance to attract public endowments. On an
    assessment of the events carried on within the institution, the court concluded

92 1939 1 MLJ 134
PART J
181
that there was, within the institution, public religious worship. The High Court held
that the Board was thus authorized to frame a scheme under the Act. Justice
Varadachariar observed:
―The test is not whether it conforms to any particular school of
Agama Sastra; we think that the question must be decided
with reference to the view of the class of people who take part
in the worship. If they believe in its religious efficacy, in the
sense that by such worship, they are making themselves the
object of the bounty of some superhuman power, it must be
regarded as ―religious worship.‖

  1. Mr Parasaran, appearing on behalf of the plaintiffs in Suit 5 argued, on the
    basis of this extract, that by performing the parikrama around the disputed site
    with the faith and belief that the disputed site is the birth-place of Lord Ram, the
    devotees believe that the receive the spiritual benefits of religious worship. This,
    it was urged, is adequate for this Court to hold that the land constituting the
    second plaintiff is a juristic person. The observations of the Madras High Court in
    Pidugu Narasimhan were in the context of assessing whether the performance
    of the ceremonies amounted to ―public religious worship‖ in order to determine
    whether the institution in question was a temple under the Act. No question arose
    of the temple being a juristic person. At best, this case supports the proposition
    put forth by the plaintiffs in Suit 5 that the nature of worship performed at the
    disputed site is of a religious nature.
  2. Mr Parasaran placed reliance on a decision of the Madras High Court in
    TRK Ramaswami Servai v The Board of Commissioners for the Hindu
    Religious Endowments, Madras93 to contend that the presence of an idol is a

93 ILR 1950 Mad 799
PART J
182
dispensable requirement with respect to religious worship and that the faith and
belief of the worshippers along with the performance of the parikrama around the
disputed land is sufficient for a court to confer on the disputed site legal
personality. In TRK Ramaswami Servai, a deed of gift was executed declaring
that certain land had been endowed to a temple Devasthanam and that a temple
was under construction. Besides the donor, two trustees were appointed. In
1937, the Hindu Religious Endowments Board demanded a contribution from the
trustees on the assumption that the construction of the temple was complete.
This was resisted by the appellants on the ground that the temple was not
constructed and that no idol had been installed. The temple was nonetheless
declared a temple within the ambit of the Madras Hindu Religious Endowments
Act, 1926. Subsequently, a scheme of management was sought to be framed for
the temple.

  1. Among the various issues addressed by the court, one concerned the
    existence of a valid temple for the purposes of the Act. The two judges on the
    Division Bench differed and the case was then referred to a third Judge. Agreeing
    that there existed a temple for the purposes of the Act, Justice Viswanatha Sastri
    held:
    ―…The Hindu law recognizes the validity of dedications for the
    establishment of a deity and the maintenance of its worship. It
    is immaterial that the image of the deity has not been
    established before a gift or bequest is made for it…The test is
    not whether the installation of an idol and the mode of its
    worship conform to any particular school of Agama Sastras. If
    the public or that section of the public who go for worship
    consider that there is a Divine presence in a particular place
    and by offering worship at that place, they are likely to be the
    recipients of the county or blessings of God then, you have
    got the essential features of a temple as defined in
    PART J
    183
    section 9, clause 12, of the Act. The presence of an idol,
    though an invariable feature of Hindu temples, is not a
    legal requisite under the definition of a temple in section
    9, clause 12, of the Act.‖
    (Emphasis supplied)
    The observations of the court were made in the context of assessing whether the
    presence of an idol was required for the institution to be defined as a temple
    under Section 9 of the Madras Hindu Religious Endowments Act, 1926. It was in
    this context that the court held that the belief of the devotees that they will be the
    recipients of God‘s blessings was sufficient for the institution to be held a temple
    under the Act. At best, these observations of the court establish that the belief of
    devotees that there is a divine presence is constitutive of a place of public
    worship. This however, is distinct from the conferral of juristic personality. An
    adjudication that an institution is a temple for the purposes of a statutory
    enactment is distinct from the issue as to whether the institution possesses
    juristic personality. The observations in this case were made in the specific
    context of a statutory definition and cannot be applied to a place a religious
    worship for which no statutory enactment exists.
  2. A similar question was adjudicated upon by the High Court of Andhra
    Pradesh in Venkataramana Murthi v Sri Rama Mandhiram94
    , upon which
    reliance was placed. In this case, the court was required to assess whether an
    idol was a pre-requisite for a place of worship to be a temple within the purview of
    the Hindu Religious and Charitable Endowments Act 1951. The court affirmed
    that the existence of public religious worship and a dedication is adequate for the
    institution to be declared as a temple under the Act, even absent an idol. This

94 (1964) 2 ANWR 457
PART J
184
case does not support the case of the plaintiffs in Suit 5.

  1. In the decision of this Court in Kamaraju Venkata Krishna Rao v Sub
    Collector, Ongole95, upon which significant reliance has been placed, the
    question before a three judge Bench was whether a tank can be considered a
    charitable institution within the meaning of the Andhra Inams (Abolition and
    Conversion into Ryotwari Act) 1956. Who granted the Inam in question was not
    known. The appellant sought a declaration that the property comprised in the
    Inam be registered in his name. This contention was rejected by the authorities
    under the Act on the ground that under the records, the Inam was granted to the
    tank itself and the ancestor of the appellant was merely the manager of the
    charitable institution, the tank. It was contended by the appellant that even if the
    Inam was granted for a charitable purpose, the object of the charity was a tank
    which could not be considered a charitable institution. The three judge Bench of
    this Court, speaking through Justice KS Hegde held:
    ―9. From the above discussion, it is seen that under Hindu
    Law a tank can be an object of charity and when a dedication
    is made in favour of a tank, the same is considered as a
    charitable institution. It is not necessary for our present
    purpose to decide whether that institution can also be
    considered as a juristic person. Once we come to the
    conclusion that the inam with which we are concerned in this
    case was an Inam in favour of the ―uracheruvu‖ (tank) that
    tank must be considered as a charitable institution under the
    Act.‖ (Emphasis supplied)
    This Court was only required to assess whether a tank can be considered a
    ―charitable institution‖ within the meaning of the Andhra Inams (Abolition and
    Conversion into Ryotwari Act) 1956. Hence, it was categorically clarified that

95 (1969) 1 SCR 624
PART J
185
there was no need to advert to whether or not a tank is a juristic person. This
case does not further the arguments urged by the plaintiffs in Suit 5.
Shiromani Gurdwara Prabandhak Committee

  1. At this stage, it is necessary to advert to the decision of this Court in
    Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass96
    .
    In this case, a two judge Bench held the Guru Granth Sahib to be a juristic
    person. Mr Parasaran, learned Senior Counsel appearing on behalf of the
    plaintiffs in Suit 5 placed considerable reliance on this decision to contend that
    this Court has held physical property simpliciter to be a juristic person. Hence, he
    submitted that there is a legal basis in the jurisprudence of this Court to confer
    legal personality upon the disputed property. To analyse this contention, it is
    necessary to consider the case in some detail.
  2. In Shiromani Gurdwara, 56 persons moved a petition under Section 7(1)
    of the Sikh Gurdwaras Act 1925 for a declaration that certain disputed property
    was a Sikh Gurdwara. Upon the issuance of a notification to this effect, objections
    were raised that the disputed property was a dharamshala and dera. The
    Tribunal under the Act dismissed this objection on the ground that the petitioners
    therein lacked locus. In the meantime, the Shiromani Gurdwara Parbandhak
    Committee97 claimed that the disputed property was a Sikh Gurdwara and that
    the ―Guru Granth Sahib‖ was the ―only object of worship and it was the sole
    owner of the gurdwara property.‖ The Sikh Gurdwara Tribunal decreed in favour
    of the SGPC and held that the disputed property ―belonged to SGPC‖.

96 (2000) 4 SCC 146
97 ―SGPC‖
PART J
186

  1. On the basis of a farman-e-shahi issued in 1921, the Revenue Officer had
    ordered mutation in the name of the ―Guru Granth Sahib Barajman Dharamshala
    Deh‖. Thus, the ownership column of the land continued in this name till
    objections were filed to the declaration of the land as a Sikh Gurdwara. In the
    appeals before the High Court from the findings of the Tribunal, a contention was
    raised that the entry in the revenue records in the name of the Guru Granth Sahib
    was void as it is not a juristic person. The High Court held that the Guru Granth
    Sahib is not a juristic person and consequently, the mutation in the name of the
    Guru Granth Sahib was liable to be set aside. It was in this context that this Court
    was called to adjudicate whether the Guru Granth Sahib is a juristic person,
    capable of owning the disputed property in its own name.
  2. Tracing the evolution of the concept of juristic person, Justice AP Misra
    noted that recognition in law of a juristic person is to sub-serve the needs of the
    law and society. The Court held:
    ―19…When the donor endows for an idol or for a mosque or
    for any institution, it necessitates the creation of a juristic
    person.
    21…There may be an endowment for a pious or religious
    purpose. It may be for an idol, mosque, church, etc. Such
    endowed property has to be used for that purpose. The
    installation and adoration of an idol or any image by a Hindu
    denoting any god is merely a mode through which his faith
    and belief is satisfied. This has led to the recognition of an
    idol as a juristic person.
  3. The aforesaid conspectus visualizes how ―juristic
    persons‖ was coined to subserve to the needs of the
    society…Different religions of the world have different
    nuclei and different institutionalized places for adoration,
    with varying conceptual beliefs and faith but all with the
    same end.‖
    (Emphasis supplied)
    PART J
    187
    Justice Misra further noted:
    ―29…it is not necessary for ―Guru Granth Sahib‖ to be
    declared as a juristic person that it should be equated with an
    idol. When belief and faith of two different religions are
    different, there is no question of equating one with the other.
    If ―Guru Granth Sahib‖ by itself could stand the test of its
    being declared as such, it can be declared to be so.‖
    ―31. Now returning to the question, whether Guru Granth
    Sahib could be a ‗juristic person‘ or not, or whether it could be
    placed on the same pedestal, we may fist have a glance as
    the Sikh religion…In the Sikh religion, the Guru is revered as
    the highest reverential person…
  4. The last living Guru, Guru Gobind Singh, expressed in no
    uncertain terms that henceforth there would not be any living
    Guru. The Guru Granth Sahib would be the vibrating Guru.
    He declared that ―henceforth it would be your Guru from
    which you will get all your guidance and answer‖. It is with
    this faith that it is worshipped like a living Guru. It is with
    this faith and conviction, when it is installed in any
    gurdwara it becomes a sacred place of worship.
    Sacredness of the gurdwara is only because of placement of
    Guru Granth Sahib in it. This reverential recognition of Guru
    Granth Sahib also opens the hearts of its followers to pour
    their money and wealth for it. It is not that it needs it, but
    when it is installed, it grows for its followers, who through their
    obeisance to it, sanctify themselves and also for running the
    langer which is an inherent part of the gurdwara.
  5. … It cannot be equated with an ―idol‖ as idol worship
    is contrary to Sikhism. As a concept or a visionary for
    obeisance, the two religions are different. Yes, for its legal
    recognition as a juristic person, the followers of both the
    religions give them respectively the same reverential value….
    42…for all the reason, we do not find any strength in the
    reasoning of the High Court in recording a finding that the
    ―Guru Granth Sahib‖ is not a ―juristic person‖. The said finding
    is not sustainable both on fact and law.‖
    The view of the learned judge was that the creation of a juristic person was to
    ensure the legal protection of the religious beliefs of the faith:
    ―28. Faith and belief cannot be judged through any judicial
    scrutiny. It is a fact accomplished and accepted by its
    followers. This faith necessitated the creation of a unit to
    PART J
    188
    be recognised as a ―juristic person‖. All this shows that a
    ―juristic person‖ is not roped in any defined circle. With the
    changing thought, changing needs of the society, fresh
    juristic personalities were created from time to time.‖
    (Emphasis supplied)
  6. What emerges from a nuanced reading of the case is this: First, the case
    did not relate to the conferment of juristic personality on immoveable property.
    The relevance of this will be considered in the course of this judgement; Second,
    as a matter of religion, the tenets of Sikhism are opposed to idol worship. Where
    juridical personality was conferred on the idol in Hindu Law as the physical site of
    jural relations, the same physical corpus was absent in Sikhism. This Court was
    thus required to locate a corpus upon which juridical personality may be
    recognised for it was only consequent to this determination that the court could
    decide whether the disputed property vested in the Guru Granth Sahib as a
    juridical person. As stated above, necessity is often the basis of conferring
    juridical personality. In this case, as it is in the case of the idol in Hindu law, it was
    legally expedient to recognise the legal personality of the Guru Granth Sahib as
    the corpus upon which juridical personality would be conferred in order to
    determine whether the property could vest in the Guru Granth Sahib.
  7. The judgment in Shiromani Gurdwara affirms that there is an underlying
    purpose which is at the heart of conferring legal personality on objects. Different
    religions are assessed in accordance with their own faith and belief. The absence
    of idol worship in Sikhism necessitated the conferral of juristic personality on the
    Guru Granth Sahib which is, according to the tenets of Sikhism, the Guru.
    Accordingly, it was then held that the disputed property vested in the Guru Granth
    PART J
    189
    Sahib.
    Thayarammal
  8. Lastly, in Thayarammal v Kanakammal98, by way of writings on a stone
    inscription, the suit properties were dedicated for use by the public as a
    Dharmachatram (choultry) where travellers and pilgrims could take shelter and be
    provided with refreshments. The property was ―dedicated to the general public as
    a resting place.‖ No trustee was mentioned and the witness to the dedication was
    Lord Thyagaraja himself. The plaintiff claimed to be in occupation of a part of the
    dedicated property (Schedule A) and alleged that a portion of the Schedule B
    property was encroached upon by the defendants who were liable to be evicted.
    The defendants contested the suit on the ground that they had acquired title to
    the portion of the property by way of a purchase made in a court sale conducted
    in the course of executing a compromise decree. The High Court concluded that
    the compromise decree was collusive and that the plaintiff also had no right as an
    assumed trustee. Accordingly, the Administrator General under the Official
    Trustees Act 1913 was directed to take over the management of the Trust. The
    principle question before this Court was whether a trust or charitable endowment
    had been created.
  9. The Court analysed the stone inscription and held that the suit property
    was dedicated for charitable purposes, and it could not be claimed by the plaintiff
    as a trustee or the defendant as an owner. However, in the course of the

98 (2005) 1 SCC 457
PART J
190
judgment, Justice DM Dharmadhikari speaking for the Court held:
―16. A religious endowment does not create title in respect of
the property dedicated in anybody‘s favour. A property
dedicated for religious or charitable purpose for which the
owner of the property or the donor has indicated no
administrator or manager becomes res nullius which the
learned author in the book (supra) explains as property
belonging to nobody. Such a property dedicated for general
public use is itself raised to the category of a juristic person.
Learned author at p. 35 of his commentary explains how such
a property vests in the person itself as a juristic person….The
idea is the same, namely, when property is dedicated for a
particular purpose, the property itself upon which the purpose
is impressed, is raised to the category of a juristic person so
that the property which is dedicated would vest in the person
so created.‖
A close reading of the decision shows that the principle contention urged in the
case was that the property described as a Dharmachatram is covered under
Section 6(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act
1959 as a ―charitable endowment‖. This Court held that the dedication of property
for a Dharmachatram, is in the strict legal sense, neither a gift nor a trust. This
Court held that the property which was dedicated for a charitable purpose could
not be claimed by the plaintiff as a trustee or the defendant as owner. With this
finding, the Court was of the view that it was the Tamil Nadu Hindu and
Charitable Endowments Act 1959 which governs the matter and accordingly the
suit property shall be taken in control for administration, management and
maintenance by the State Government and the Commissioner under the 1959
Act.

  1. In assessing the position of the religious charitable institution, this Court
    made certain observations in para 16 upon which reliance has been placed. The
    Court proceeded on the premise that the suit property had been dedicated for a
    PART J
    191
    specific purpose and could not be owned by the defendant. This was to ensure
    the protection of the purpose with which the suit property was dedicated.
    Significantly, the deed of dedication did not identify a manager for the endowed
    property and the court sought to protect the property by conferring legal
    personality on the intention behind the endowment. Though the Court assessed
    the position of law on the basis of the theoretical framework analysed above, the
    observations extracted above seem to suggest that property itself was elevated
    to the status of a juristic person. On an overall reading of the case as well as the
    theoretical exposition which has been adverted to, the observations made have
    to be read in the light of protecting the purpose behind the endowment and not to
    suggest that the property itself was conferred legal personality.
    Dedication of properties
  2. The cases referred to Mr C S Vaidyanathan pertained to the consequence
    of conferring legal personality by this Court on the disputed land. Far from
    assisting the contention urged on behalf of the plaintiffs in Suit 5, that the second
    plaintiff is a juristic person, the cases adverted to above affirm that the practice of
    conferring legal personality on Hindu idols was evolved by courts to ensure that
    the law adequately protected the properties endowed to religious purposes. As a
    large number of endowments were made to specific idols, courts located the idol
    as a nucleus in which the rights, powers, privileges and immunities of the
    endowment would vest. Legal personality was conferred to serve the very
    specific public interest of protecting properties so endowed and creating a centre
    of jural relations. Necessity mandated the creation and recognition of an entity in
    PART J
    192
    law, allowing courts to regulate the legal relations between natural persons and
    the idol and consequently the properties vested in the idol. These cases will be
    adverted to in the event the court determines that the second plaintiff is a juristic
    person.
    Faith and belief
  3. The decisions and their observations which have been adverted to are
    premised on the existence of a positive act of dedication or donation. It is
    pertinent to note that plaintiffs‘ claim for the conferment of juristic personality on
    the land that is the disputed site is not based on an express dedication. It was
    urged that the spot under the central dome where the idols are placed is the birthplace of Lord Ram. The faith and belief of the worshippers is of paramount
    importance. Hindus perform the parikrama around the disputed site with the faith
    and belief that it marks the birth-place of Lord Ram. It has thus been argued that
    ‗Asthan Shri Ram Janam Bhumi‘, as a place of religious worship must
    consequently be elevated to the status of a juristic person by virtue of the faith
    and belief of the worshippers. It was contended that the presence of an idol is
    dispensable in Hinduism, this contemplates a situation such as in the case before
    us, where the land is itself worshipped as a deity. Devotees pray to the land as
    the birth-place of Lord Ram, and consequently, the second plaintiff should, it is
    urged, be recognised as a juristic person.
  4. The argument which has been urged on behalf of the plaintiff in Suit 5 is
    materially different from the case for conferment legal personality on a Hindu
    PART J
    193
    endowment. In the case of an endowment, courts have recognised the charitable
    or religious purpose situated in the institution as a basis for conferring juristic
    personality on the institution. In doing so, the court recognises the pious purpose
    of the founder or testator to protect the properties so endowed. However, it is not
    the case of the plaintiffs in Suit 5 that the property styled as the second plaintiff is
    debutter property. Rather, by invoking the argument of a ―juristic person‖, the
    plaintiffs have urged this Court to create an additional ground for the conferral of
    legal personality – the faith and belief of the devotees. Amongst the ensemble of
    arguments advanced before this Court, this innovative legal claim is at the heart
    of the present dispute.
  5. The first difficulty that arises in accepting the contention urged by the
    plaintiffs in Suit 5 stems from the very practical question of how such immovable
    property is to be delineated. Unlike the case of endowed properties that are
    delineated in the instrument or deed of endowment itself, where legal personality
    is sought to be conferred on the basis of faith and belief of the devotees, the
    devotees themselves may not agree on the exact contours of this property. The
    question of delineation weighed on the mind of Justice Sudhir Agarwal who
    stated:
    ―1887. What would be the meaning of word ―place‖ and
    what should be its extent? Whether it would be a small
    place which normally is required for birth of a human being or
    whether it will cover an area of the entire room, house,
    locality, city or sometimes one can say even more that that.
    We know that Hindus worship rivers and lakes like
    Ganga, Yamuna, Narmada, Mansarovar etc. They are very
    sacred and pious. At several places a number of temples
    etc. on the bank or near the said rivers have been
    constructed. The very origin of such sacred rivers is also
    a place of worship for Hindus like Gangotri, Yamunotri
    (state of Uttaranchal) and Amarkantak (for river
    PART J
    194
    Narmada). Can it be said that the entire length these
    rivers cover would constitute and satisfy the requirement
    of a ―juristic personality‖. It is not out of place that at
    several places, the temple of Ganga, Narmada, Yamuna, etc.
    have been constructed and they are religious endowments in
    their own rights, enjoy all such legal rights and obligations, etc
    as are available to such endowments. Similarly certain hills or
    mountain or hilly terrains as such are treated to be places of
    worship like, Kailash, Gobardhan, Kamathgiri etc.‖
    (Emphasis supplied)
    Parikrama
  6. Despite these difficulties, the learned judge concluded that ‗Asthan Sri
    Ram Janam Bhumi‘ was a juristic person. It was urged before us that it is not the
    entirety of Ayodhya that is the juristic person, but only the disputed property.
    When a question was raised by the Bench as to the physical boundaries of the
    alleged juristic person, it was urged that the performance of the parikrama
    (circumambulation) around the disputed property delineated the property which
    was worshipped as the Janmasthan and it is this property, being divine, upon
    which the status of a juristic person must be conferred. In this view, the parikrama
    served to mark the boundaries of the juristic person. On the other hand, Dr
    Dhavan urged that the parikrama is merely a form of worship and not a method of
    delineating the boundaries of a property.
  7. The parikrama may be performed around a small idol, shrine, temple or
    land in which the temple is situated. However, its principle purpose is to offer
    worship to the divine and it is performed with the belief that the parikrama would
    result in the performer being the recipient of some spiritual benefit. The parikrama
    is not performed in order to mark the exact boundaries of the property to which
    juristic personality is conferred. The performance of the parikrama, which is a
    PART J
    195
    form of worship conducted as a matter of faith and belief cannot be claimed as
    the basis of an entitlement in law to a proprietary claim over property.
    Ram Jankijee Deities
  8. The counsel for the plaintiffs in Suit 5 relied on the observations by this
    Court in Ram Jankijee Deities v State of Bihar99 to contend that the manner of
    consecrating a deity is subjective and based on the determination of the
    devotees. It was submitted that any method of consecration chosen by the
    devotees is adequate for the conferral of legal personality on the deity. In that
    case, the question before the court concerned whether the consecration of a
    deity with a visible image by the performance of appropriate ceremonies led to
    the establishment of a valid deity upon which juridical personality could be
    conferred ―for the purpose of the Bihar Land Reforms (Fixation of Ceiling Area
    and Acquisition of Surplus Land) Act 1961‖. Two deeds of dedication were
    executed – one to the deity, Ram Jankijee and the other to the deity, Thakur
    Raja. Both deities, recognised as distinct entities, were given separate properties
    and put in possession through the shebaits. Both deities were located in separate
    temples within the dedicated property.
  9. The Deputy Collector, for the purposes of the fixation of ceiling area,
    allowed two land units to the deities on the ground that there are separate deities
    to which the land was gifted. The Collector disagreed and allowed a single unit on
    the ground that the entire property held by both deities was to be managed by a
    committee formed under the Religious Trust Board and there was no evidence on

99 (1999) 5 SCC 50
PART J
196
the property donated to the deities being treated differently. This Court sought to
answer whether the two deities were separate and distinct legal entities. It is
pertinent to note that the Single Judge of the High Court held that the image of
the deity styled as Thakur Raja (or Raja Rani) was not known to Hindu scriptures
and hence, there is no second deity to which a separate dedication could be
made. It is in this context that this Court observed, speaking through Justice
Umesh Banerjee:
―14. Images according to Hindu authorities are of two kinds:
the first is known as swayambhu or self-existent or selfrevealed, while the other is pratisthita or established. The
Padma Purana says: ―The image of Hari (God) prepared of
stone, earth, wood, metal or the like and established
according to the rites laid down in the Vedas, Smritis and
Tantras is called the established images … where the selfpossessed Vishnu has placed himself on earth in stone or
wood for the benefit of mankind, that is styled the selfrevealed.‖ (B.K. Mukherjea — Hindu Law of Religious and
Charitable Trusts, 5th Edn.) A swayambhu or self-revealed
image is a product of nature and it is anadi or without any
beginning and the worshippers simply discover its existence
and such images do not require consecration or pratistha but
a man-made image requires consecration. This man-made
image may be painted on a wall or canvas. The Salgram
Shila depicts Narayana being the Lord of the Lords and
represents Vishnu Bhagwan. It is a shila — the shalagram
form partaking the form of Lord of the Lords, Narayana and
Vishnu.‖
The Court then surveyed precedent to hold that while an idol is usually
consecrated in a temple, it does not appear to be an essential condition. The
Court held:
―16…If the people believe in the temples’ religious efficacy no
other requirement exists as regards other areas and the
learned Judge it seems has completely overlooked this
aspect of the Hindu Shastras — in any event, Hindus have in
the Shastras ―Agni‖ Devta, ―Vayu‖ Devta — these deities are
shapeless and formless but for every ritual Hindus offer their
oblations before the deity. The ahuti to the deity is the
ultimate — the learned Single Judge however was pleased
PART J
197
not to put any reliance thereon. It is not a particular image
which is a juridical person but it is a particular bent of mind
which consecrates the image.‖

  1. All the cases relied on by the Court pertain to the requisites of a temple
    under various statutes or what constitutes a place of religious worship. The
    observations of the Court form the basis of locating the centre of worship, which
    according to it does not need to have a fixed image and is based on the faith and
    belief of the worshippers. The observations of the Court were in the context of
    determining whether a valid deity existed to whom a dedication could be made.
    The question whether the second deity was a distinct legal person arose due to
    the need to determine the validity of the deed of dedication in favour of the
    second deity constituting a separate unit for the purposes of the Bihar Land
    Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961. It is
    only consequent to the establishment of a valid deity that the dedicated property
    would vest in the established deity in the ideal sense.
  2. It cannot be said that the observations of the court in respect of the
    consecration or establishment of a valid deity apply with equal force to the
    conferral of juristic personality on property on the basis of the faith and belief of
    the devotees. The rationale underlying the approach adopted by this Court is
    clarified in the following observations:
    ―17. One cardinal principle underlying idol worship ought
    to be borne in mind
    ―that whichever God the devotee might choose for
    purposes of worship and whatever image he might set up
    and consecrate with that object, the image represents
    the Supreme God and none else. There is no
    superiority or inferiority amongst the different Gods. Siva,
    PART J
    198
    Vishnu, Ganapati or Surya is extolled, each in its turn as
    the creator, preserver and supreme lord of the universe.
    The image simply gives a name and form to the
    formless God and the orthodox Hindu idea is that
    conception of form is only for the benefit of the
    worshipper and nothing else‖.
    (B.K. Mukherjea — Hindu Law of Religious and Charitable
    Trusts, 5th Edn.)‖ (Emphasis supplied)
    The observations in Ram Jankijee Deities were made in the specific context of
    consecrating an image based on the faith and belief of devotees for the
    establishment of a deity to which valid dedications may be made. The
    observations in this case establish that the existence of a valid deity was not to
    be tested against Hindu Shastras but on the basis of the faith and belief of the
    devotees. Once the faith and belief of the devotees had been established, it was
    an express deed of dedication that resulted in the conferral of juridical personality
    on the idol. The observations in this case cannot be equated to the elevation of
    property itself as a juristic person.
  3. The court in that case was concerned with whether a specific image of a
    deity must be tested against Hindu scriptures and it is in this context that the
    court held that divinity is ―formless, shapeless but it is the human concept of a
    particular divine existence which gives it the shape, the size and the colour.‖
    There is no express deed of dedication in the present case. The case of Ram
    Jankijee Deities is not an authority for the proposition that the mere faith and
    belief of the devotees is sufficient for the conferral of juristic personality. While it
    was adequate for the existence of a place of religious worship, it was on the basis
    of a deed of dedication that juristic personality was conferred.
    PART J
    199
    The sacred hill
  4. In Sir Seth Hukum Chand v Maharaj Bahadur Singh100, the dispute
    concerned two sects of the Jain community with regard to the rights of worship of
    a hill of 25 square miles to which religious significance was attached. According
    to the Digambaras, the sacred nature of the hill demanded that the moment they
    set foot on the hill, they must abstain from any offence against nature, even
    spitting. Though this is observed by the Swetambaris as well, the Digambaras
    adopted a position that any course of action which is inconsistent with their
    worship, such as the regular and continuous employment of human beings on the
    hill involves a desecration of the hill.
  5. In 1918, the Swetambaris acquired, by purchase, the proprietary rights to
    the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were
    posted on the hill which was accompanied by the construction of dwelling units
    for them and for other pujaris. The Digambaris contended that the proposed
    construction of a gate at the foot of the hill was intended to obstruct their access
    to the hill. A suit was instituted contending that the hill was an object of worship
    for both sects and on account of its special status, no construction would take
    place on it. The trial judge held that the plaintiff Digambaris were entitled to
    ensure that the hill, as endowed property of the deities, is kept in an immaculate
    condition in accordance with their faith. The High Court reversed this judgment
    and held that the hill was not debutter property but the property of the Raja of
    Palgunj, whose title was transferred. Further, the proposed construction of the

100 (1933) 38 LW 306 (PC)
PART J
200
gate was held not to obstruct the right of worship of the Digambaris.

  1. In appeal, the Privy Council examined the evidence on record to conclude
    that legal title had vested validly in the Raja. The result of previous litigation
    between the Raja and the Swetambaris had concluded title in favour of the Raja.
    A suit by the Digambaris in 1903 also admitted the title of the Raja subject to their
    right to worship. The Privy Council then examined the range of activities that
    were carried out on the hill without a disruption of the right to worship, and held
    that it was not proved that any of the acts complained of, barring the placing of
    the Charans in the three shrines, in the plaint abridged the right to worship.
  2. The trial judge concluded that the hill was debutter property of the deities
    entirely on the belief of its sanctity. Taking exception to these observations, the
    Privy Council held:
    ―The Subordinate Judge has based his finding that the whole
    hill is the debutter property of the jain deities on the belief in
    its sanctity now entertained by both sects. As observed by
    Ross, J., that evidence undoubtedly establishes beyond a
    doubt that in the belief of the Jain community a spiritual
    quality in some way attaches to the hill, but this is a
    matter of faith and cannot in itself determine the physical
    ownership of the hill.‖ (Emphasis
    supplied)
    The Privy Council explicitly rejected the contention urged by the Digambaris of a
    proprietary claim which was based on the faith and belief of the sect.
    PART J
    201
    The consequence of absolute title
  3. In the present case, the recognition of ‗Asthan Sri Ram Janam Bhumi‘ as a
    juristic person would result in the extinguishment of all competing proprietary
    claims to the land in question. This conferral of ‗absolute title‘ (resulting from the
    conferral of legal personality on land) would in truth render the very concept of
    title meaningless. Moreover, the extinguishing of competing claims would arise
    not by virtue of settled legal principles, but purely on the basis of the faith and
    belief of the devotees. This cannot be countenanced in law. The conferral of legal
    personality by courts is an innovation arising out of necessity and convenience.
    The conferral of legal personality on Hindu idols arose due to the fundamental
    question of who the property was dedicated to and in whom the dedicated land
    vested. The two clear interests that the law necessitated protection of were the
    interests of the devotees and the protection of the properties from
    mismanagement. In the present case, there exists no act of dedication and
    therefore the question of whom the property was dedicated to does not arise and
    consequently the need to recognise the pious purpose behind the dedication
    itself as a legal person also does not arise.
    The Swayambhu argument
  4. It is pertinent to note that in reply, Mr Parasaran advanced a slightly
    different argument. The initial argument advanced on behalf of the plaintiffs in
    Suit 5 was that the performance of worship at the disputed site with the faith and
    belief that the place is the birth-place of Lord Ram is sufficient for this Court to
    confer on the disputed site juristic personality. The argument advanced in reply
    PART J
    202
    was that the land is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran
    contended that an idol is not necessary in Hinduism for the performance of
    worship. It was contended that the idol is sacred as a symbol of the divinity,
    however all worship is done to the one indivisible Supreme Being. The multitude
    of idols and deities merely constitute different facets of the Supreme Being.
    Hence, the law must recognize whatever form in which God manifests. It was
    contended that the second plaintiff was a deity that ‗manifested itself in the land‘
    and therefore the juristic personality of Ram Janmabhumi vested in the
    immovable property of the disputed site. In Mr Parasaran‘s submission, worship
    at the disputed site was not offered only to Lord Ram but the very land on which
    Lord Ram is said to have been born. Reliance in this regard was placed on the
    existence of several temples where worship was performed despite the absence
    an idol – most notably at the Chidambaram temple in Tamil Nadu.
  5. To establish the legal personality of the second plaintiff, Mr Parasaran
    urged that as the Ram Janmabhumi is a ‗Swayambhu‘ deity, no dedication or
    consecration is required for the court to recognise its juristic personality. It was
    contended that the deity, by its very nature necessitated the performance of a
    parikrama around it, which also delineated the boundaries of the property upon
    which juristic personality must be conferred. Mr Parasaran contended that the
    conferral of juristic personality sub-served the need to protect the land itself from
    being encroached on or alienated. The land is believed to be the birth-place and
    is treated reverentially by Hindus who have sought to offer worship there. As a
    consequence, legal personality must be conferred on the land for its protection.
    PART J
    203
    To support these submissions, Mr Parasaran relied on the following authorities:
    Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP101
    , Ram
    Jankijee Deities v State of Bihar102
    , Yogendra Nath Naskar v CIT, Calcutta103
    ,
    Bhupati Nath104
    , Manohar Ganesh Tambekar v Lakhmiram Govindram105
    ,
    Guruvayur Devaswom Managing Committee v C K Rajan106
    , Sri
    Sabhanayagar Temple, Chidambaram v State of Tamil Nadu107
    , Pinchai v
    Commissioner, Hindu Religious and Charitable Endowments Board108
    ,
    Saraswathi Ammal v Rajagopal Ammal109; Kamaraju Venkata Krishna Rao v
    Sub Collector110
    , Thayarammal v Kanakammal111
    , Shiromani Gurdwara
    Prabandhak Committee, Amritsar v Som Nath Dass112 and Sapneshwar
    Pujapanda v Ratnakar Mahapatra113
    .
  6. Dr Dhavan briefly interjected to contend that though Hinduism may
    recognise a Swayambhu deity, all such instances are characterised by the
    existence of a physical manifestation. Except the faith and belief of the devotees,
    no physical manifestation has been forthcoming to separate the disputed site
    from any other land simpliciter.

101 (1997) 4 SCC 606
102 (1999) 5 SCC 50
103 (1969) 1 SCC 555
104 ILR (1909) 37 Cal 128
105 ILR 1888 12 Bom 247
106 (2003) 7 SCC 546
107 (2009) 4 CTC 801
108 AIR 1971 Mad 405
109 1954 SCR 277
110 (1969) 1 SCR 624
111 (2005) 1 SCC 457
112 (2000) 4 SCC 146
113 AIR 1916 Pat 146
PART J
204

  1. In Mr Parasaran‘s view, even absent any distinguishing feature on the
    disputed site to evidence the manifestation of divinity, the faith and belief of the
    devotees is sufficient to recognise that the disputed site is a Swayambhu deity. At
    the heart of the revised argument raised by Mr Parasaran is that the faith and
    belief of the devotees alone is sufficient for this Court to recognise the disputed
    site as a Swayambhu deity and consequently confer upon it legal personality. To
    this extent, the contention urged by Mr Parasaran in his reply converges with the
    earlier argument on faith and belief as the sole basis on which juristic personality
    must be conferred. In both submissions advanced by the plaintiffs in Suit 5, the
    faith and belief of the devotees is claimed to be the sole basis for the conferral of
    juristic personality. The contentions on faith and belief have already been
    analysed above. However, the argument urged that the disputed land is a
    Swayambhu deity raises additional issues outside the realm of the Hindu Law of
    endowments. It is to these issues that it is necessary now to turn.
  2. Given the range of arguments advanced by the plaintiffs in Suit 5, it is
    necessary to first advert to the cases relied on in reply. The observations relied
    on have been selectively extracted and once the context in which the
    observations were made are fully understood, they do not advance the argument
    set out by Mr Parasaran.
  3. Reliance was placed on Guruvayoor Devaswom Managing Committee v
    C K Rajan114 to contend that a temple itself is a juristic entity. The dispute
    concerned the mismanagement of temple affairs by the Devaswom Committee. A

114 (2003) 7 SCC 546
PART J
205
three judge Bench of this Court held that devotees could approach a High Court
or the Supreme Court by way of public interest litigation where their fundamental
rights under Article 25 and 26 of the Constitution were violated by action or
inaction on behalf of the state authorities. The only reference to a temple being a
juristic person is recorded at paragraph 40 of the judgement. Justice S B Sinha
noted:
―40. … A proceeding initiated as a public interest litigation
would lie before the High Court or this Court, according to
Mr Subba Rao, where it was found that despite existence of
statutory provisions the State or the other statutory
functionaries were not taking recourse to the provisions
thereof for remedying the grievances of the devotees. In any
event, as a Hindu temple is a juristic person the very fact
that Section 92 of the Code of Civil Procedure seeks to
protect the same for the same purpose Article 226 and 32
could also be taken recourse to. Our attention in this
behalf has been drawn to Yogendra Nath v. CIT and
Manohar Ganesh Tambekar v. Lakhmiram Govindram.‖
(Emphasis supplied)
The observation that a temple is a juristic person formed a part of the
submissions made by the counsel and was merely preserved by the court as a
matter of record. There is no evidence that this Court accepted the contention
that the temple is a juristic person. No reliance can be placed on this decision or
the observation in paragraph 40 to contend that a temple is a juristic person.

  1. Mr Parasaran next relied on Sri Sabhanayagar Temple, Chidambaram v
    State of Tamil Nadu115 to demonstrate the recorded existence of a temple
    without any resident idol. The decision records a brief history of the
    Chidambaram Temple in Tamil Nadu. Justice T Raja, speaking for a Division
    Bench of the Madras High Court notes:

115 (2009) 4 CTC 801
PART J
206
―…The Chidambaram Temple contains an altar which has no
idol. In fact, no Lingam exists but a curtain is hung before a
wall, when people go to worship, the curtain is withdrawn to
see the ‗Lingam‘. But the ardent devotee will feel the divinely
wonder that Lord Siva is formless i.e., space which is known
as ―Akasa Lingam‖. Offerings are made before the curtain.
This form of worshipping space is called the ―Chidambara
rahasyam‖, i.e. the secret of Chidambaram.‖
The decision supports Mr Parasaran‘s argument that there can exist a temple
without an idol. An idol is one manifestation of the divine and it cannot be said
that absent an idol, there exists no divinity to which prayer may be offered.
However, the question before the Madras High Court was whether the appellant
and his predecessors were the founders of the temple and whether it was a
denominational temple for the purposes of state regulation of the temple‘s secular
affairs. The High Court did not consider whether a temple could be a juristic
person and the decision does not support Mr Parasaran‘s contention that the
mere worship of empty land or ‗space‘, absent a physical manifestation could
confer juristic personality. Moreover, the facts of the case are materially different
from the present case as the Chidambaram Temple is a physical structure built
around a specific spot that is considered holy. Despite the absence of an idol, the
temple serves as the physical manifestation of the deity and demonstrates the
institutional nature of the worship. This is in contrast to the present case. Worship
is offered to the idol of Lord Ram. The disputed site is a site of religious
significance, but that itself is not sufficient to confer juridical personality on the
land.
PART J
207

  1. Reliance was also placed on Pichal alias Chockalingam Pillai v The
    Commissioner for Hindu Religions and Charitable Endowments
    (Administrations Department) Madras116 to contend that a temple continues to
    be recognised as a site of public religious worship even absent the presence of
    an idol. The case concerned the Kalyansundareswarar temple in Avaniyapuram.
    In the early twentieth century, one Chockalingam Pillai executed a deed of
    dedication for the construction, installation and continued upkeep for four idols,
    including Sri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtue
    of a compromise deed in 1954 the appellants before the Madras High Court
    came to be the managing trustees. The appellants were accused of failing in their
    upkeep and service of the idol and the Commissioner of Hindu Religions and
    Charitable Endowments framed a scheme to take over management of the
    temple. The appellants challenged the competence of the Commissioner on the
    ground that the temple was not a temple under Section 6(20) of the Madras
    Hindu Religious and Charitable Endowments Act 1959. The primary contention of
    the appellants was that the idols in the Kalyansundareswarar temple had not
    been duly installed and consecrated. Justice K Reddy speaking for the Division
    Bench of the Madras High Court held that the existence of an idol was not
    necessary for a place of public worship to be a ―temple‖ under Section 6(20) of
    the said Act. He further observed:
    ―… It does not appear that the aforesaid idols in the said
    temples have been installed and consecrated according to
    the rituals and ceremonies enjoined by Agama Sastras. They
    have become places of public religious worship by long use of
    the place as such by the Hindu community. We are, therefore,
    of the view that the installation and consecration of idols with
    ceremonies like Prana pratishta etc, prescribed by Hindu

116 AIR 1971 Mad 405
PART J
208
Sastras is not the sine qua non for public religious worship. In
any event, it is not a legal requisite under the definition of a
‗temple‘ in the Act…‖
Two points must be noted: First, the observations of the Court are made in the
context of satisfying a pre-existing statutory definition of a ‗temple‘. It is in this
context, that the Madras High Court notes that the existence of an idol is not a
pre-requisite to satisfy the statutory definition of a temple. Second, the case does
not discuss the question whether a temple, even absent an idol, can be a juristic
person. It is pertinent to note that absent an idol, the temple itself had existed for
several years. In light of these observations, the decision does not support Mr
Parasaran‘s argument that absent an idol or any express form of manifestation or
recognition, land can constitute a juristic person.

  1. Mr Parasaran relied on the decision in Saraswathi Ammal v Rajagopal
    Ammal117 to argue that the widespread belief and worship of the land styled as
    Ram Janmbhumi is sufficient to recognise it as a juristic person. The case
    concerned a settlement deed whereby a widow dedicated in perpetuity the
    revenue of certain immovable properties for the performance of daily puja and
    ‗Gurupuja‘ of her former husband‘s tomb. It was urged by the appellants in the
    case that the dedication was for the performance of puja and an annual ‗sradh‘
    on a significant scale, and the dedication was thus for a religious and charitable
    purpose. In rejecting this contention, Justice B Jagannadhadas, speaking for a
    three judge Bench of this Court observed:
    ―6…To the extent, therefore, that any purpose is claimed to
    be a valid one for perpetual dedication on the ground of

117 1954 SCR 277
PART J
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religious merit though lacking in public benefit, it must be
shown to have a Shastric basis so far as Hindus are
concerned. No doubt since then other religious practices and
beliefs may have grown up and obtained recognition from
certain classes, as constituting purposes conducive of
religious merit. If such beliefs are to be accepted by courts as
being sufficient for valid perpetual dedication of property
therefor without the lement of actual or presumed public
benefit it must be at least shown that they have obtained wide
recognition and constitute the religious practice of a
substantial and large class of persons. That is a question
which does not arise for direct decision in this case. But
it cannot be maintained that the belief in this belief of one
or more individuals is sufficient to enable them to make a
valid settlement permanently tying up property. The
heads of religious purposes determined by belief in
acquisition of religious merit cannot be allowed to be
widely enlarged consistently with public policy and
needs of modern society.‖ (Emphasis supplied)
The above decision deals with whether a substantial and widespread practice of
a large number of Hindus would warrant its recognition as a religious or
charitable practice. Further, the court expressly observes it was not necessary to
answer this question as the ground of public policy is sufficient to discredit the
practice of tomb-worship by a few stray individuals. It does not deal with the
question when a court should confer juristic personality, either on an idol or on
land. While a particular practice may or may not be recognised by a court as
―religious‖ or ―charitable‖ depending on the scale of adoption of the practice, a
parallel cannot be drawn with the concept of juristic person which operates in an
entirely different field of law. The decision does not support the contention that
widespread belief in the religious nature of a site is sufficient to confer upon that
site legal personality.
PART J
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Lastly Mr Parasaran sought to rely on two decisions, Sapneswar Pujapanda v
Ratkanar Mahapatra118 and Sri Adi Visheshwara of Kashi Vishwanath
Temple v State of UP119 to contend that the second plaintiff in Suit 5 is a
‗Swayambhu‘ deity which has a recognised legal personality. The decisions
merely note that Hinduism recognises the concept of a Swayambhu deity, which
is not contested by either of the parties to the present dispute. Neither decision
advances the argument set out by Mr Parasaran. The substantive content of the
arguments advanced by the plaintiffs in Suit 5 is dealt with next.

  1. Mr Parasaran submitted that the various deities and idols in Hinduism are
    merely facets of the single indivisible God. It was thus contended that every
    manifestation of the indivisible God is worthy of legal protection and the
    conferment of legal personality.
  2. This Court in Yogendra Nath Naskar v CIT, Calcutta120 drew a distinction
    between the perception of the devotee that the idol is a manifestation of the
    Supreme Being and the position in law that legal personality is conferred on the
    pious purpose of the testator that is entitled to legal protection. Hinduism is an
    expansive religion that believes divinity in the form of the Supreme Being is
    present in every aspect of creation. The worship of God in Hinduism is not limited
    to temples or idols but often extends to natural formations, animals and can even
    extend to everyday objects which have significance in a worshipper‘s life. As a
    matter of religion, every manifestation of the Supreme Being is divine and worthy

118 AIR 1916 Pat 146
119 (1997) 4 SCC 606
120 (1969) 1 SCC 555
PART J
211
of worship. However, as a matter of law, every manifestation of the Supreme
Being is not a legal person. Legal personality is an innovation arising out of legal
necessity and the need for adjudicative utility. Each conferment of legal
personality absent an express deed of dedication must be judged on the facts of
the case and it is not a sound proposition in law to state that every manifestation
of the Supreme Being results in the creation of a legal person.

  1. In the present case, it was contended that the land forming the disputed
    site is itself the manifestation of Lord Ram. Significant reliance was placed on the
    existence of certain temples which do not possess idols, in particular the
    Chidambaram temple in Tamil Nadu, to advance two legal propositions: First, that
    a Hindu deity possessing juristic personality could exist even absent an idol, and
    second that unadorned land, absent any distinguishing features, could constitute
    a Swayambhu deity and consequently a juristic person. As noted above, the
    cases relied upon by Mr Parasaran with respect to the Chidambaram and
    Kalyansundareswar temple do not refer to the conferral of juristic personality.
    However, it is true than an idol is not a pre-requisite for the existence of a juristic
    person. Where there exists an express deed of dedication, the legal personality
    vests in the pious purpose of the founder. The idol is the material embodiment of
    the pious purpose and is the site of jural relations. There are instances of the
    submergence or even destruction of the idol inspite of which it has been held that
    the legal personality continues to subsist. Even if a testator were to make a
    dedication to a religious purpose but the idol did not exist at the time the
    dedication was made or the manifestation of the divine was not in the form of the
    idol, but in the form of some other object of religious significance, the legal
    PART J
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    personality would continue to vest in the pious purpose of the dedication itself.
    However, that is not the situation in the present case. In the case of the second
    plaintiff in Suit 5, there exists no express deed of dedication.
  2. It is true that merely because the second plaintiff is not an idol, and there
    exists no deed of dedication, it is not precluded from being conferred with legal
    personality. Swayambhu deities, by the very fact that they are manifested from
    nature, may not fit the description of an idol in the traditional sense. Courts are
    not barred from recognising such a material manifestation of the divine as a
    juristic person. The manifestation in a material form is what is the defining
    feature. In the present case however, the arguments advanced in reply on behalf
    of the plaintiffs in Suit 5 rest on a two-fold claim: First, that no material
    manifestation is required for the conferral of juristic personality in the case of a
    Swayambhu deity. In this view, the performance of worship with the faith and
    belief that corporeal property represents the divine is adequate for the conferral
    of juristic personality. Second, in the alternative, assuming that a material
    manifestation is a pre-requisite for a Swayambhu deity, the land at the disputed
    site represents the material manifestation and given the performance of religious
    worship, no further evidence is required for the conferral of juristic personality.
    Several examples of temples without idols were placed before this court,
    including that of the Chidambaram Temple to contend that the deity of Ram had
    manifested itself in the form of land itself. According to the plaintiffs in Suit 5, the
    birth of Lord Ram at the disputed site is the revelation, and the resident deity of
    Ram Janmabhumi manifests itself in the form of the land that it is the disputed
    land. At the Chidambaram Temple, there exists no idol of the resident deity, Lord
    PART J
    213
    Siva. A curtain exists at the altar. At the time of worship, the curtain is drawn
    away and the altar is revealed to have an empty space. The empty space at the
    altar is the subject of the prayers and devotees regularly leave offerings at the
    altar. Mr Parasaran sought to draw a parallel to demonstrate how empty space
    itself, absent any idol or distinguishing features, was the subject of worship and
    constituted a valid deity upon which juristic personality could be conferred.
  3. The arguments urged by Mr Parasaran in his reply raise three questions
    for our determination: First, whether a Swayambhu deity may be recognised
    absent a physical manifestation; second, whether land can constitute a
    manifestation of the deity; and third, whether legal personality can be conferred
    on immovable property per se.
  4. A Swayambhu deity is a manifestation of God that is ‗self-revealed‘ or
    ‗discovered as existing‘ as opposed to a traditional idol that is hand-crafted and
    consecrated by the prana pratishta ceremony. The word ‗swayam‘ means ‗self‘ or
    ‗on its own‘, ‗bhu‘ means ‗to take birth‘. A Swayambhu deity is one which has
    manifested itself in nature without human craftsmanship. Common examples of
    these deities are where a tree grows in the shape of a Hindu God or Goddess or
    where a natural formation such as ice or rock takes the form of a recognised
    Hindu deity.
  5. Dr Dhavan contended that any case of Swayambhu deity would
    necessarily need to be based on: (i) some evidence of the manifestation of God
    in a material form followed by; (ii) faith and belief that a particular piece of
    corporeal property represents the divine; and (iii) in the absence of traditional
    PART J
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    prana parishta ceremonies of consecration, some institutionalised worship
    constituting recognition by the religion itself that the manifestation was a deity. In
    this view, a Swayambhu deity is premised on faith and belief coupled with a
    physical manifestation and religious recognition.
  6. A Swayambhu deity is the revelation of God in a material form which is
    subsequently worshipped by devotees. The recognition of a Swayambhu deity is
    based on the notion that God is omnipotent and may manifest in some physical
    form. This manifestation is worshipped as the embodiment of divinity. In all these
    cases, the very attribution of divinity is premised on the manifestation of the deity
    in a material form. Undoubtedly, a deity may exist without a physical
    manifestation, example of this being the worship offered to the Sun and the Wind.
    But a Swayambhu is premised on the physical manifestation of the Divine to
    which faith and belief attaches.
  7. The difficulty that arises in the present case is that the Swayambhu deity
    seeking recognition before this Court is not in the form ordinarily associated with
    the pantheon of anthropomorphised Hindu Gods. The plaintiffs in Suit 5 have
    sought to locate the disputed land as a focal point by contending that the very
    land itself is the manifestation of the deity and that the devotees‘ worship not only
    the idols of Lord Ram, but the very land itself. The land does not contain any
    material manifestation of the resident deity Lord Ram. Absent the faith and belief
    of the devotees, the land holds no distinguishing features that could be
    recognised by this court as evidence of a manifestation of God at the disputed
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    215
    site. It is true that in matters of faith and belief, the absence of evidence may not
    be evidence of absence. However, absent a manifestation, recognising the land
    as a self-manifested deity would open the floodgates for parties to contend that
    ordinary land which was witness to some event of religious significance
    associated with the human incarnation of a deity (e.g. the site of marriage, or the
    ascent to a heavenly abode) is in fact a Swayambhu deity manifested in the form
    of land. If the argument urged by Mr Parasaran that there is no requirement of a
    physical manifestation is accepted, it may well be claimed that any area of
    religious significance is a Swayambhu deity which deserves to be recognised as
    a juristic personality. This problem is compounded by the fact that worship to a
    particular deity at a religious site and to the land underlying a religious site are for
    all intents and purposes, indistinguishable. Hence, in order to provide a sound
    jurisprudential basis for the recognition of a Swayambhu deity, manifestation is
    crucial. Absent that manifestation which distinguishes the land from other
    property, juristic personality cannot be conferred on the land.
  8. It is conceivable that in certain instances the land itself would possess
    certain unique characteristics. For example, it may be claimed that certain
    patterns on a sea-shore or crop formations represent a manifestation of the
    divine. In these cases, the manifestation is inseparable from the land and is tied
    up to it. An independent question arises as to whether land can constitute the
    physical manifestation of the deity. Even if a court recognises land as a
    manifestation of a deity, because such land is also governed by the principles of
    immoveable property, the court will need to investigate the consequences which
    arise. In doing so the court must analyse the compatibility of the legal regime of
    PART J
    216
    juristic personality with the legal regime on immoveable property. It is necessary
    now to turn to this.
    Property vested in a deity and property as a deity
  9. There is a significant distinction between property vested in a foundation
    (as in Roman law) or a deity as a juristic person (as in Hindu Law) and property
    per se being a juristic person. Where the property vests in a foundation
    constituted for a pious purpose, it retains its characteristics as immoveable
    property. This remains true even in cases where the property vests in the deity in
    an ideal sense. The purpose of conferring juristic personality is to ensure both a
    centre of legal relations as well as the protection of the beneficial interest of the
    devotees. It does not however, alter the character of the property which vests in
    the juristic person. It remains subject to the framework of the law which defines
    all relationships governing rights or interests claimed in respect of property and
    the liabilities which attach to jural transactions arising out of property.
  10. This distinction, which highlights the features of immoveable property
    received articulation by the Privy Council in The Mosque, Masjid Shahid Ganj v
    Shiromani Gurdwara Parbandhak Committee, Amritsar.
    121 In that case, a
    mosque was dedicated in 1722 by one Falak Beg Khan. By the deed of
    dedication, Sheikh Din Mohammad and his descendants were appointed as
    Mutawallis. Since 1762, however, the building together with the court-yard, well
    and adjacent land, was in the occupation and possession of the Sikhs. The land
    adjacent to the mosque became the site of a Sikh shrine. At the time of the

121 AIR 1940 PC 116
PART J
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annexation by the British in 1849, the Sikhs were in possession of both the
mosque and the adjacent lands.

  1. Thereafter, the building was demolished ―by or with the connivance of its
    Sikh custodians‖. A suit was instituted in 1935 against Shiromani Gurdawara
    Parbandhak Committee – who were in possession of the disputed property,
    seeking a declaration that the building was a mosque in which the plaintiffs and
    all the followers of Islam had a right to worship along with a mandatory injunction
    to reconstruct the building. One of the 18 plaintiffs was the mosque itself – the site
    and the building. The Privy Council assessed the contention that the mosque and
    the adjoining properties were a juristic person. Rejecting the contention, Justice
    George Rankin held:
    ―The argument that the land and buildings of a mosque are not
    property at all because they are a ―juristic person‖ involves a
    number of misconceptions. It is wholly inconsistent with many
    decisions whereby a worshipper or the mutwalli has been
    permitted to maintain a suit to recover the land and buildings
    for the purposes of the wakf by ejectment of a trespasser…
    That there should be any supposed analogy between the
    position in law of a building dedicated as a place of prayer for
    Muslims and the individual deities of the Hindu religion is a
    matter of some surprise to their Lordships… the procedure in
    India takes account necessarily of the polytheistic and other
    features of the Hindu religion and recognizes certain doctrines
    of Hindu law as essential thereto, e.g. that an idol may be the
    owner of property…
    The decisions recognizing a mosque as a ―juristic person‖
    appear to be confined to the Punjab : 153 PR 1884; Shankar
    Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula
    Bux v. Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6
    In none of those cases was a mosque party to the suit, and in
    none except perhaps the last is the fictitious personality
    attributed to the mosque as a matter of decision. But so far as
    they go these cases support the recognition as a fictitious
    person of a mosque as an institution – apparently
    hypostatizing an abstraction. This, as the learned Chief
    Justice in the present case has pointed out, is very
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    different from conferring personality upon a building so
    as to deprive it of its character as immovable property.‖
    (Emphasis supplied)
  2. The Privy Council noted that if the mosque was a juristic person, this may
    mean that limitation does not apply to it and that ―it is not property but an owner
    of property.‖ Underlying the line of reasoning adopted by the Privy Council is that
    the conferral of legal personality on immovable property could lead to the
    property losing its character as immoveable property. Immoveable property, by its
    very nature, admits competing proprietary claims over it. Immoveable property
    may be divided. However, the recognition of the land itself as a juristic person
    may potentially lead to the loss of these essential characteristics. Where juristic
    personality was recognised in corporeal property itself such as the idol, it served
    the larger purpose for which juristic personality was conferred – to ensure the
    execution and protection of the pious purpose set out by a donor and the ultimate
    protection of the beneficial interest of the worshippers. However, to confer legal
    personality on immoveable property leads to consequences that fundamentally
    have no nexus to the limited purpose for which juristic personality is conferred. It
    sets apart immoveable property on which a juristic character is conferred from all
    other species of immoveable property. This will lead to the claim that the legal
    regime which applies to the latter (‗ordinary immoveable property‘) will not apply
    to that class of immoveable property which is recognised as a juristic person in
    and of itself. The principles of adverse possession and limitation would, if the
    argument were to be accepted, not apply to the land as a legal person which is
    incapable of being ―possessed‖. The conferral of legal personality in the context
    of endowments was to ensure the legal protection of the endowed property, not
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    219
    to confer upon the property legal impregnability by placing it outside the reach of
    the law. The elevation of land to the status of a juristic person fundamentally
    alters its characteristics as immoveable property, a severe consequence against
    which a court must guard. Nor is it a valid safeguard to postulate that the court
    will decide on a case to case basis where a particular immoveable property
    should have a juristic status. Absent any objective standard of application the
    process of drawing lines will be rendered inherently subjective, denuding the
    efficacy of the judicial process.
  3. The land in question has been treated as immoveable property by all the
    parties to the present dispute, including those from the Hindu community until
  4. The litigation over the disputed property dated back to 1885, and at no
    point, until Suit 5 in 1989 was a plea taken that the land in question was anything
    possessed of a juristic personality. Apart from the reasons which have been
    outlined above, it would not be open for the court to treat the property differently
    now, solely on the basis of the novel plea urged by the plaintiffs in Suit 5 in 1989.
    Addressing title claims in a conventional framework
  5. The facts of the present case raise questions of access of the devotees to
    the site of religious worship and the question of who has title to the land. The
    former may be protected by the court in several ways without the creation of an
    artificial legal person. The protection against mismanagement squarely falls
    within the domain of who should be recognised as a shebait, and this is
    addressed elsewhere in the course of the present judgement. Generally
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    220
    speaking, the court is empowered to address such situations upon an application
    under Section 92 of the Code of Civil Procedure 1908. The question of title can
    be adjudicated upon using the existing legal regime applicable to immoveable
    property. There is no reason bearing on necessity or convenience that would
    compel the court to adopt the novel argument set forth by the plaintiffs in Suit 5
    that juristic personality must be conferred on the disputed land.
  6. The conferral of juristic personality is a legal innovation applied by courts in
    situations where the existing law of the day has certain shortcomings or such
    conferral increases the convenience of adjudication. In the present case, the
    existing law is adequately equipped to protect the interests of the devotees and
    ensure against maladministration without recognising the land itself as a legal
    person. Where the law is capable of adequately protecting the interests of the
    devotees and ensuring the accountable management of religious sites without
    the conferral of legal personality, it is not necessary to embark on the journey of
    creating legal fictions that may have unintended consequences in the future.
    There is therefore no merit in the argument that faith and belief, and the
    protection of faith and belief alone may necessitate the conferral of legal
    personality on the second plaintiff. On the contrary, there exists a substantial risk
    with adopting this argument. It may be contended by a section of a religion that a
    particular plot of land is the birth-place, place of marriage, or a place where the
    human incarnation of a deity departed for a heavenly abode; according to the
    faith and belief of the devotees. Corporeal property may be associated with
    myriad incidents associated with the human incarnation of a deity each of which
    PART J
    221
    holds a significant place in the faith and belief of the worshippers. Where does
    the court draw the line to assess the significance of the belief as the basis to
    confer juristic personality on property? In the absence of an objective criterion,
    the exercise will be fraught with subjectivity. Adopting the argument of the
    plaintiffs in Suit 5 may result in the conferral of legal personality on all such
    claims to land. This conferral would be to the detriment of bona fide litigants
    outside the faith – who may not share the same beliefs and yet find their title
    extinguished. Further, such conferral of legal personality on immovable property
    would be on the basis of the faith and belief of the devotees, which is
    fundamentally subjective and incapable of being questioned by this Court.
  7. The purpose for which juristic personality is conferred cannot be ‗evolved‘
    into a trojan horse that permits, on the basis of religious faith and belief, the
    extinguishing of all competing proprietary claims over property as well stripping
    the property itself of the essential characteristic of immoveable property. If the
    contention urged on the behalf of the plaintiffs in Suit 5 is accepted, it results in a
    position in law where claims to ‗absolute title‘ can be sustained merely on the
    basis of the faith and belief of the devotees. The conferral of legal personality on
    corporeal property would immunise property not merely from competing title
    claims, but also render vast swathes of the law that are essential for courts to
    meaningfully adjudicate upon civil suits, such as limitation, ownership,
    possession and division, entirely otiose. At best, the contention urged on behalf
    of the plaintiffs in Suit 5 would sustain a claim that the specific site is a location of
    religious significance for the devotees. It cannot however be extended to sustain
    proprietary claims to the law or to immunise the land from proprietary or title
    PART J
    222
    based claims of others by conferring juristic personality on the land itself.
    Commitment to constitutional values
  8. A final observation must be made on this aspect of the case which is of
    significant importance. The rejection of the contention urged on behalf of the
    plaintiffs in Suit 5 touches upon the heart of our constitutional commitment to
    secularism. The method of worship on the basis of which a proprietary claim may
    be sustained is relatable to a particular religion. The conferral of legal personality
    on idols stemming from religious endowments is a legal development applicable
    only to a practice of the Hindu community. The performance of the parikrama is
    a method of worship confined largely to Hinduism. Putting aside the fact that the
    argument raised by the plaintiffs in Suit 5 is a novel extension of the law
    applicable to Hindu religious endowments, this is a significant matter which
    requires our consideration.
  9. Religious diversity undoubtedly requires the protection of diverse methods
    of offering worship and performing religious ceremonies. However, that a method
    of offering worship unique to one religion should result in the conferral of an
    absolute title to parties from one religion over parties from another religion in an
    adjudication over civil property claims cannot be sustained under our
    Constitution. This would render the law, which ought to be the ultimate impartial
    arbiter, conferring a benefit on a party with respect to her or his legal claims, not
    on the basis of the merits of a particular case, but on the basis of the structure or
    fabric of the religion to which they belong. If the contention urged on behalf of the
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    223
    plaintiffs in Suit 5 is accepted, the method of worship performed by one religion
    alone will be conferred with the power to extinguish all contesting proprietary
    claims over disputed property.
  10. It is true that the connection between a person and what they consider
    divine is deeply internal. It lies in the realm of a personal sphere in which no other
    person must intrude. It is for this reason that the Constitution protects the
    freedom to profess, practice and propagate religion equally to all citizens. Often,
    the human condition finds solace in worship. But worship may not be confined
    into a straightjacket formula. It is on the basis of the deep entrenchment of
    religion into the social fabric of Indian society that the right to religious freedom
    was not made absolute. An attempt has been made in the jurisprudence of this
    court to demarcate the religious from the secular. The adjudication of civil claims
    over private property must remain within the domain of the secular if the
    commitment to constitutional values is to be upheld. Over four decades ago, the
    Constitution was amended and a specific reference to its secular fabric was
    incorporated in the Preamble. At its heart, this reiterated what the Constitution
    always respected and accepted: the equality of all faiths. Secularism cannot be a
    writ lost in the sands of time by being oblivious to the exercise of religious
    freedom by everyone.
  11. It is for all the reasons highlighted above that the law has till today yet to
    accept the conferral of legal personality on immoveable property. Religiosity has
    moved hearts and minds. The court cannot adopt a position that accords primacy
    to the faith and belief of a single religion as the basis to confer both judicial
    PART K
    224
    insulation as well as primacy over the legal system as a whole. From Shahid
    Gunj to Ayodhya, in a country like ours where contesting claims over property by
    religious communities are inevitable, our courts cannot reduce questions of title,
    which fall firmly within the secular domain and outside the rubric of religion, to a
    question of which community‘s faith is stronger.
    On a consideration of all the factors outlined above, it is thus held that the second
    plaintiff in Suit 5 – ‗Asthan Shri Ram Janam Bhumi‘ is not a juristic person.
    K. Analysis of the suits
  12. Suit 1 filed by Gopal Singh Visharad is essentially a suit by a worshipper
    for enforcement of his right to worship Lord Ram at the Janmabhumi. Suit 3 filed
    by Nirmohi Akhara is for handing over the management and charge of the
    Janmabhumi temple to it. Suit 4 filed by Sunni Central Waqf Board is for a
    declaration that the entirety of the disputed site, including Babri Masjid and the
    surrounding graveyard, is a public mosque and for a decree for possession. Suit
    5 is filed by the deity of Lord Ram and the Janmasthan (both of whom are
    asserted to be juridical persons) through a next friend impleaded as a third
    plaintiff for a declaration that the entire premises comprised of annexures 1, 2
    and 3 to the plaint constitute Ram Janmabhumi and for an injunction against
    interference in the construction of a new temple after the demolition of the
    existing building.
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    225
    The judgment now proceeds to analyse and adjudicate upon the claims in the
    suits.
    L. Suit 1: Gopal Singh Visharad since deceased and survived by
    Rajendra Singh v Zahoor Ahmad and others
    L.1 Pleadings
  13. On 16 January 1950, a suit was instituted by Gopal Singh Visharad before
    the Civil Judge at Faizabad, describing himself as a Hindu devotee. He is a
    resident of Ayodhya and follower of ‗Santan Dharm‘. His grievance was that he
    was being prevented by officials of the government from entering the inner
    courtyard of the structure to offer worship. The plaintiff claims that he is entitled to
    worship the deity of Lord Ram. The following reliefs were sought:
    (i) A declaration of his entitlement to worship and seek the darshan of Lord
    Ram, ―according to religion and custom‖ at the Janmabhumi temple
    without hindrance; and
    (ii) A permanent and perpetual injunction restraining defendants 1 to 10 from
    removing the idols of the deity and other idols from the place where they
    were installed; from closing the way leading to the idols; or interfering in
    worship and darshan.
    The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when
    the employees of the government are alleged to have unlawfully prevented the
    plaintiff ―from going inside the place‖ and exercising his right of worship. It was
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    226
    alleged that the ―State‖ adopted this action at the behest of the Muslim residents
    represented by defendant nos 1 to 5, as a result of which the Hindus were stated
    to been deprived of their ―legitimate right of worship‖. The plaintiff apprehended
    that the idols, including the idol of Lord Ram, would be removed. These actions
    were alleged to constitute a ―direct attack on the right and title of the plaintiff‖ and
    was stated to be an ―oppressive act‖, contrary to law.
  14. Denying the allegations contained in the plaint, the Muslim defendant nos
    1 to 5 stated in their written statement that:
    (i) The property in respect of which the case has been instituted is not
    Janmabhumi but a mosque constructed by Babur. The mosque was built in
    1528 on the instructions of Babur by Mir Baqi, who was the Commander of
    his forces, following the conquest of the sub-continent by the Mughal
    emperor;
    (ii) The mosque was dedicated as a waqf for Muslims, who have a right to
    worship there. Babur laid out annual grants for the maintenance and
    expenditure of the mosque, which were continued and enhanced by the
    Nawab of Awadh and the British Government;
    (iii) The Suit of 1885 was a suit for declaration of ownership by Mahant
    Raghubar Das only in respect of the Ramchabutra and hence, the claim
    that the entire building represented the Janmasthan was baseless. As a
    consequence of the dismissal of the suit on 24 December 1885, ―the case
    respecting the Chabutra was not entertained‖;
    (iv) The Chief Commissioner, Waqf appointed under the Muslim Waqf Act
    1936 had held the mosque to be a Sunni Waqf;
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    227
    (v) Muslims have always been in possession of the mosque. This position
    began in 1528 and continued thereafter, and consequently, ―Muslims are in
    possession of that property… by way of an adverse possession‖;
    (vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which
    point there were no idols under the central dome. If any person had placed
    any idol inside the mosque with a mala fide intent, ―the degradation of the
    mosque is evident and the accused persons are liable to be prosecuted‖;
    (vii) Any attempt of the plaintiff or any other person to enter the mosque to offer
    worship or for darshan would violate the law. Proceedings under Section
    145 of the CrPC 1898 had been initiated; and
    (viii) The present suit claiming Babri Masjid as the place of the Janmasthan is
    without basis as there exists, for quite long, another temple with idols of
    Lord Ram and others, which is the actual place of the Janmasthan of Lord
    Ram.
    A written statement was filed by defendant no 6, the State, submitting that:
    (i) The property in suit known as Babri Masjid has been used as a mosque for
    the purpose of worship by Muslims for a long period and has not been
    used as a temple of Lord Ram;
    (ii) On the night of 22 December 1949, the idols of Lord Ram were
    surreptitiously placed inside the mosque imperilling public peace and
    tranquillity. On 23 December 1949, the City Magistrate passed an order
    under Section 144 of CrPC 1898 which was followed by an order of the
    same date passed by the Additional City Magistrate under Section 145
    PART L
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    attaching the disputed property. These orders were passed to maintain
    public peace; and
    (iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal
    Board, Faizabad-cum Ayodhya as a receiver of the property.
    Similar written statements were filed by defendant no 8, the Additional City
    Magistrate and defendant no 9, the Superintendent of Police.
    Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
    (i) The building in dispute is not the Janmasthan of Lord Ram and no idols
    were ever installed in it;
    (ii) The property in suit was a mosque known as the Babri mosque
    constructed during the regime of Emperor Babur who had laid out annual
    grants for its maintenance and expenditure and they were continued and
    enhanced by the Nawab of Awadh and the British Government;
    (iii) On the night of 22-23 December 1949, the idols were surreptitiously
    brought into the mosque;
    (iv) The Muslims alone had remained in possession of the mosque from 1528
    up to 29 December 1949 when it was attached under Section 145. They
    had regularly offered prayers up to 23 December 1949 and Friday prayers
    up to 16 December 1949;
    (v) The mosque had the character of a waqf and its ownership vested in God;
    (vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi
    of Lord Ram as the claim in the Suit of 1885 instituted by Mahant
    PART L
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    Raghubar Das (described to be the plaintiff‘s predecessor) was confined
    only to the Ramchabutra measuring seventeen feet by twenty one feet
    outside the mosque; and
    (vii) There already existed a Ram Janmasthan Mandir, a short distance away
    from Babri Masjid.
    In the plaintiff‘s replication to the written statement of defendant nos 1 to 5, it was
    averred that the disputed site had never been used as a mosque since 1934. It
    was further stated that it was ―common knowledge‖ that Hindus were in
    continuous possession by virtue of which the claim of the defendants ceased.
    L.2 Issues and findings of the High Court
  15. 1. Is the property in suit the site of Janam Bhumi of Sri Ram
    Chandraji?
     Justice S U Khan – No temple was demolished for constructing the
    mosque. Until the mosque was constructed during the period of Babur, the
    premises in dispute were not treated as or believed to be the birth-place of
    Lord Ram.
     Justice Sudhir Agarwal – The place of birth as believed and worshiped by
    the Hindus is the area covered under the central dome of the disputed
    structure in the inner courtyard.
     Justice D V Sharma – Decided against the defendants.
    PART L
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    2.Are there any idols of Bhagwan Ram Chandra Ji and are his Charan
    Paduka situated in the site in suit?
     Justice S U Khan – Idols were kept on the pulpit inside the mosque for
    the first time during the night of 22-23 December 1949.
     Justice Sudhir Agarwal – Idols were placed under the central dome of
    the disputed structure, within the inner courtyard, during the night of 22-23
    December 1949 but before it they existed in the outer courtyard.
     Justice D V Sharma – Decided against the defendants.
  16. Has the plaintiff any right to worship the ‗Charan Paduka‘ and the
    idols situated in the place in suit?
     Justice S U Khan – The only thing which can be said is that Ramchabutra
    came into existence before the visit of Tieffenthaler but after construction of
    the mosque. Both parties were in joint possession.
     Justice Sudhir Agarwal – The plaintiff has a right to worship subject to
    reasonable restrictions like safety, maintenance and security.
     Justice D V Sharma – Decided in favour of the defendants.
  17. Has the plaintiff the right to have darshan of the place in suit?
     Justice S U Khan – The only thing which can be said is that Ramchabutra
    came into existence before the visit of Tieffenthaler but after construction of
    the mosque. Both parties were in joint possession.
     Justice Sudhir Agarwal – The plaintiff has a right to worship subject to
    reasonable restrictions like safety, maintenance and security.
    PART L
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     Justice D V Sharma – Decided in favour of the defendants.
    5(a). Was the property in suit involved in original Suit no 61/280 of 1885 in
    the court of sub-judge (Faizabad Raghubar Das Mahant v Secretary of
    State for India and others)?
     Justice S U Khan – Nothing was decided in the Suit of 1885 and res
    judicata does not apply.
     Justice Sudhir Agarwal – Answered in the negative.
     Justice D V Sharma – Property existed as nazul land.
    5(b). Was it decided against the plaintiff?
     Justice Sudhir Agarwal – Suit of 1885 was decided against Mahant
    Bhaskar Das and no relief was granted to him.
     Justice D V Sharma – Property existed as nazul land.
    5(c). Was that suit within the knowledge of Hindus in general and were all
    Hindus interested in the same?
     Justice Sudhir Agarwal – Answered in the negative. No material on
    record to justify that the suit was filed by Mahant Raghubar Das in a
    representative capacity.
     Justice D V Sharma – Decided in favour of the defendants.
    5(d). Does the decision in same bar the present suit by principles of res
    judicata and in any other way?
     Justice Sudhir Agarwal – Answered in the negative.
    PART L
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     Justice D V Sharma – Decided in favour of the defendants.
  18. Is the property in suit a mosque constructed by Babur commonly
    known as Babri Mosque, in 1528 A.D?
     Justice S U Khan – The construction of a mosque took place by or under
    the orders of Babur. Whether it was actually built by Mir Baqi or someone
    else is not material. Muslims offered regular prayers until 1934, after which
    until 22 December 1949 only Friday prayers were offered. This is sufficient
    for continuous possession and use. No temple was demolished for the
    construction of the mosque.
     Justice Sudhir Agarwal – Plaintiffs have failed to prove the construction
    of the structure by Babur in 1528 A. D.
     Justice D V Sharma – Decided against the defendants.
  19. Have the Muslims been in possession of the property in suit from
    1528 A.D. continuously, openly and to the knowledge of the
    defendants and Hindus in general? If so, its effect?
     Justice S U Khan – Title follows possession and both parties were in joint
    possession of the disputed premises.
     Justice Sudhir Agarwal – Decided in favour of the plaintiff.
     Justice D V Sharma – Decided in favour of the defendants.
  20. Is the suit barred by proviso to Section 42 of the Specific Relief Act?
     Justice S U Khan – Not barred.
     Justice Sudhir Agarwal – Not barred.
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     Justice D V Sharma – Decided in favour of the defendants.
  21. Is the suit barred by the provisions of Section 5(3) of the Muslim Waqf
    Act (U.P. Act 13 of 1936)?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal – Decided in favour of the plaintiff.
     Justice D V Sharma – Decided in favour of the defendants.
    9(a). Has the said Act no application to the right of Hindus in general and
    plaintiff of the present suit, in particular to his right of worship?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal – In favour of the Hindu parties in general.
     Justice D V Sharma – Decided in favour of the defendants.
    9(b). Were the proceedings under the said Act, referred to in para 15 of the
    written statement, collusive? If so its effect?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal – Decided against the plaintiff.
     Justice D V Sharma – Decided in favour of the defendant.
    9(c). Are the said provisions of the U.P. Act 13 of 1936 ultra vires for
    reasons given in the statement of plaintiff’s counsel dated 9.3.62
    recorded on paper no. 454-A?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal – Answered in the negative.
    PART L
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  22. Is the present suit barred by time?
     Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma –
    The suit is not barred by limitation.
    11(a).Are the provisions of section 91 C.P.C. applicable to the present suit?
    If so, is the suit bad for want of consent in writing by the Advocate
    General?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal
     Justice Sudhir Agarwal – Answered in the negative.
     Justice D V Sharma – Decided in favour of the plaintiff.
    11(b). Are the rights set up by the plaintiff in this suit independent of the
    provisions of section 91 CPC? If not, its effect.
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal – Answered in the affirmative.
     Justice D V Sharma – Decided in favour of the plaintiff.
  23. Is the suit bad for want of steps and notice under Order 1, Rule 8
    CPC? If so, its effect?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal and Justice D V Sharma – Answered in favour
    of the plaintiff.
  24. Is the Suit 2 of 50 (Shri Gopal Singh Visharad v Zahoor Ahmad) bad
    for want of notice under Section 80 CPC?
    PART L
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     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal – Not rejected as barred.
     Justice D V Sharma – Decided in favour of the defendants.
  25. Is the Suit no 25 of 50 Param Hans Ram Chandra v Zahoor Ahmad
    bad for want of valid notice under Section 80 CPC?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal and Justice D V Sharam – Issue redundant
    after dismissal of the suit as withdrawn.
  26. Is the suit bad for non-joinder of the defendants?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal and Justice D V Sharma – Answered in the
    negative and in favour of the plaintiff.
  27. Are the defendants or any of them entitled to special costs under
    Section 35-A CPC?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
     Justice Sudhir Agarwal – Counsel did not press the issue.
     Justice D V Sharma – Plaintiff is not entitled for relief and suit dismissed
    with easy costs.
  28. To what reliefs, if any, is the plaintiff entitled?
     Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal
     Justice Sudhir Agarwal – The plaintiff‘s right of worship cannot be
    doubted since the site in dispute includes part of the land which is believed
    PART L
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    to be the place of birth of Lord Ram. To this extent the plaintiff is entitled for
    a declaration subject to restrictions which may be necessary on account of
    security, safety and maintenance of the place of worship.
     Justice D V Sharma – Plaintiff is not entitled for relief and suit is
    dismissed with easy costs.
    L.3 Analysis
  29. Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the
    Plaintiff in Suit 1 adverted to the order of the Magistrate dated 29 December
    1949, under Section 145 CrPC by which the disputed premises were attached
    and a receiver was appointed. Learned Counsel stated that fourteen affidavits
    were filed by certain Muslims under Order XIX, Rule 1 of the CPC between 8-16
    February 1950, stating that:
    (i) The place where the Babri Masjid was situated is the birth-place of Lord
    Ram. The Babri Masjid was built by ‗breaking‘ the birth-place of Lord Ram;
    (ii) After British Rule, Muslims were only reading Friday namaz in the mosque;
    (iii) After the construction of the Masjid, Hindus did not give up their
    possession and continued to worship there;
    (iv) Both Hindus and Muslims continued to worship at the disputed site;
    (v) Post the riots of 1934, Muslims had stopped going to the Masjid out of fear
    and ever since, the Hindus had taken possession of the main place in the
    mosque; and
    (vi) There was no objection if the possession of the mosque was to be handed
    over to the Hindus as reading namaz at that place was against the Shariat.
    PART L
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  30. Justice Sudhir Agarwal did not pay any credence to the affidavits and held
    that:
    ―3020… The aforesaid documents to the extent to prove the
    fact that the same were filed before the Magistrate and
    constitute part of the record of 145 Cr.P.C. proceeding before
    the City Magistrate is not disputed but to believe the contents
    thereof, in our view, it was necessary to produce the authors
    of the documents and to give an opportunity of crossexamination to the other parties against whose interest the
    documents contain certain averments. None of the author of
    the said documents have been produced and they are also
    not party to the proceedings individually. We have no benefit
    of testifying the correctness of the contents of the said
    documents. In the absence of any one available to prove the
    contents of the said documents, in our view, the same cannot
    be relied and therefore, nothing turns out from the aforesaid
    documents either in favour or against any of the parties.‖
    Justice S U Khan agreed with the observations made by Justice Sudhir Agarwal.
    However, Justice D V Sharma has held the affidavits to be admissible and
    observed that:
    ―…affidavits of the persons under or through whom the
    plaintiffs are claiming were sworn before an official
    empowered by the Magistrate are admissible evidence…‖
  31. Mr Ranjit Kumar, has made the following submissions:
    (i) The Suit of 1885 will have no impact on the present suit as in the earlier
    suit the relief sought was for the permission to establish a temple over a
    platform which was confined to the Chabutra outside the mosque.
    However, the present suit is with respect to the right to worship and seek
    the darshan of Lord Ram, ―according to religion and custom‖ at the
    Janmabhumi temple;
    (ii) On 3 March 1951, the Trial Court confirmed the ad-interim order dated 19
    January 1950 passed in Suit 1 by which the injunction was modified to
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    prevent the idols from being removed from the disputed site and from
    causing interference in the performance of puja. The trial judge referred to
    the affidavits of certain Muslim residents of Ayodhya and stated that at
    least from 1936 ―the Muslims have neither used this site as a mosque nor
    offered prayers there‖ and ―the affidavits referred do make out a prima
    facie case in favour of the plaintiff‖. The above order was confirmed by a
    Division Bench of the High Court of Allahabad in appeal on 26 April 1955,
    though the High Court made an observation that taking on record the
    affidavits after the judgment had been reserved, was not correct;
    (iii) Despite the publication of public notices in three newspapers calling
    objections with respect to the Section 145 proceedings, none of the Muslim
    defendants filed any contrary statements;
    (iv) These affidavits have corroborative value: when defendant nos 1 to 5 filed
    their written statements in Suit 1 on 21 February 1950, despite having
    knowledge of the affidavits filed in the Section 145 proceedings, they did
    not object to the stand taken by Muslims;
    (v) Before the High Court, the affidavits had been brought on record in the
    present suit and were duly exhibited. They form part of relevant historical
    facts and could not be rejected outright;
    (vi) Defendant nos 1 to 5 filed an application praying that Suit 1 be treated as a
    representative suit under Order I Rule 8, which was opposed by the
    plaintiff. The Civil Judge by an order dated 27 October dismissed the
    application;
    PART L
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    (vii) During the course of arguments before this Court, in the exhibits relied
    upon by the Sunni Central Waqf Board to show possession from 1858 the
    disputed site has been referred to as ―Janam Asthan Masjid‖ or ―Masjid
    Janam Asthan‖ signifying that the site was always referred to as the
    Janmasthan or birth-place of Lord Ram;
    (viii) The right of entry into the temple for purposes of ―darshan‖ or worship is a
    right which flows from the nature of the institution itself (Nar Hari Shastri v
    Shri Badrinath Temple Committee122). Worship includes attendance at
    the temple for the purpose of darshan of a deity or deities in the precincts
    (Sastri Yagnapurushadji v Muldas Bhudardas Vaishya123). If the
    general public have always made use of the temple for public worship and
    devotion in the same way as they do in other temples, it is a strong
    circumstance in favour of the conclusive existence of a public temple (Bala
    Shankar Maha Shanker Bhattjee v Charity Commissioner, Gujarat
    State124).
    Mr Ranjit Kumar, learned Senior Counsel referred to the order of the Magistrate
    dated 30 July 1953, by which the file in the proceedings under Section 145 was
    consigned to the record in view of the temporary injunction granted on 3 March
  32. The Magistrate noted that the case under Section 145 had been pending
    ‗unnecessarily‘ and dates were being fixed in the hope that the civil suit will be
    disposed of or the temporary injunction will be vacated. However, the Magistrate
    noted that the finding of the civil court was binding on the criminal court and there

122 1952 SCR 849
123 (1966) 3 SCR 242
124 1995 Supp (1) SCC 485
PART L
240
was no purpose in starting the proceedings separately under Section 145. Mr
Ranjit Kumar drew this Court‘s attention to the application dated 22 July 1954
filed by Gopal Singh Visharad before the Magistrate requesting him to preserve
all files with respect to the proceedings under Section 145 and not to weed them
out till the finality of the decision of the civil court.

  1. Dr Rajeev Dhavan, learned Senior Counsel appearing for the Sunni
    Central Waqf Board, has raised the following submissions in reply:
    (i) The written statements filed by defendant nos 1 to 5 do not include the
    Sunni Central Waqf Board;
    (ii) The mosque was constructed by Babur through his Commander Mir Baqi
    and was dedicated as a valid waqf. Under the Muslims Waqf Act 1936, the
    Chief Commissioner Waqf decided that the mosque was a Sunni Waqf;
    (iii) The Muslims have been in possession of the mosque since 1528 and by
    virtue of being in possession for more than 400 years, affirmed their right of
    adverse possession over the disputed property;
    (iv) Suit 1 has been primarily filed against the State authorities as the main
    grievance was against the authorities preventing the plaintiff from offering
    worship inside the disputed premises;
    (v) The suit was filed to enforce a personal right of the plaintiff i.e. the right to
    worship inside the disputed structure and thus, the right gets automatically
    extinguished on his death;
    (vi) The fourteen affidavits filed by the Muslim persons of Ayodhya in the
    proceedings under Section 145 proceedings are not admissible in
    evidence under Section 3 of the Indian Evidence Act. The affidavits have
    PART L
    241
    no relevance as the authors of the affidavits have not been cross
    examined and since they are not parties to any of the suits individually,
    they cannot be relied upon. Justice Sudhir Agarwal has found these
    affidavits to be unreliable;
    (vii) There is no clear mention of whether the plaintiff had earlier carried out any
    worship inside the disputed structure and he has not mentioned the exact
    place of birth of Lord Ram below the central dome; and
    (viii) The exhibits relied upon by the Sunni Central Waqf Board clearly show that
    the Hindu parties had access to only the outer courtyard restricted to the
    Ramchabutra and Sita Rasoi. All efforts of trespass in the inner courtyard
    were thwarted and the authorities passed directions evicting those who
    tried to enter the inner courtyard.
  2. None of the persons who are alleged to have filed affidavits in the
    proceedings under Section 145 were examined in evidence during the course of
    the civil trial before the High Court. The credibility of a statement made by a
    person on affidavit can only be accepted if the witness is produced in evidence.
    However, in the present case, the Muslim residents who presented the affidavits
    before the Magistrate in the proceedings under Section 145 were not cited or
    produced as witnesses. In the absence of any opportunity to the opposite side to
    challenge the statements made in the affidavits, no reliance can be placed upon
    the contents of the affidavits.
    PART L
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  3. The original plaintiff Gopal Singh Visharad passed away during the
    pendency of the suit and was substituted by his son, Rajendra Singh Visharad
    pursuant to the court‘s order dated 22 February 1986. It was contended that the
    original plaintiff instituted the suit for enforcing his private right to worship at the
    disputed property and that upon his death, such right was extinguished, and the
    suit stood abated. It is necessary to advert to the pleadings in Suit 1 to determine
    whether the right asserted by the original plaintiff was a private right or involved a
    larger public right claimed in common with other worshippers. Paragraph 3 of the
    plaint in Suit 1 reads as follows:
    ―…Defendant No.6 prevented the plaintiff from going inside
    the place where the idol of Shri Ramchandra Ji and others
    are placed and it was learnt that after getting influence with
    the baseless and false perversity of the Defendants No.1 to 5
    and their other fellows, Defendant No.7 to 9 have deprived
    the Hindu public from their legitimate right of performing
    worship and having darshan and because of undue
    insistence of the Defendants No.1 to 5 etc., Defendant No. 6
    declares that Hindu Public shall be deprived from their
    above rights in the same manner in future also and
    because of the above unjustifiable act, proprietary right of
    original plaintiff which he had always used, is being infringed
    and in the above circumstances, present plaintiff has the
    complete apprehension and fear of improper and unlawful
    interference in the Defendants in exercise of the above
    religious rights.‖
    (Emphasis supplied)
    Defendant no 6 is the State of Uttar Pradesh defendants nos 7 to 9 are the
    Deputy Commissioner, Additional City Magistrate and the Superintendent of
    Police, Faizabad respectively. The pleadings indicate that the right asserted was
    not a private right, but a right in common with and for the benefit of other Hindu
    devotees to pray at the disputed property. The right claimed was that of the
    ―Hindu public‖ to worship at the disputed property without undue interference. By
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    an order dated 22 February 1986, the court permitted Rajendra Singh Visharad,
    the son of the original plaintiff, to be substituted as the first plaintiff in Suit 1.
    Rajendra Singh Visharad is also a follower of the ‗Sanatan Dharm‘ and performed
    worship at the disputed site. The right asserted on behalf of the larger ―Hindu
    public‖ does not stand extinguished upon the death of the original plaintiff and
    can be pursued by his son who is also a worshipper.
  4. The remaining issues in contention in Suit 1 are connected with the ones
    argued in Suit 5. The relief sought in Suit 5 will have a direct impact on the
    plaintiff‘s right to pray as claimed in Suit 1. Accordingly, we will deal with the
    contentions raised in Suit 1 at the time of addressing the contentions in Suit 5.
    M. Suit 3: Nirmohi Akhara
    M.1 Pleadings
  5. Nirmohi Akhara claims that the Janmasthan, commonly known as
    Janmabhumi, which is the birth-place of Lord Ram ―belongs and has always
    belonged‖ to it and it has been ―managing it and receiving offerings through the
    reigning Mahant and Sarbrahkar‖. Besides the receiver, the second to fifth
    defendants are official respondents represented by the State of Uttar Pradesh
    and its officers. The plaint contains an averment that the temple has ―ever since
    been in the possession of‖ Nirmohi Akhara and only Hindus have been allowed to
    enter and worship in it, at least since 1934. In other words, Nirmohi Akhara
    denies the status of the disputed structure as a mosque. The basis for the
    PART M
    244
    institution of the suit is the initiation of the proceedings under Section 145 of the
    CrPC 1898 by the City Magistrate. The proceedings are alleged to be without
    lawful cause and under the ―wrong persuasion‖ of the Muslim parties represented
    by the sixth and eighth defendants. As a result, the Nirmohis allege that they
    were wrongfully deprived ―of their management and charge of the said temple‖
    and that though they were awaiting the conclusion of the proceedings under
    Section 145, the proceedings have been unduly prolonged with the connivance of
    the defendants.
    The Muslim parties have been impleaded because they are alleged to be
    interested in ensuring that the charge and management of the temple is not
    handed over to Nirmohi Akhara. The cause of action for the suit is stated to have
    arisen on 5 January 1950 when the receiver is alleged to have illegally taken over
    management and charge of the temple from Nirmohi Akhara. Following the
    incident which took place on 6 December 1992 (which the Nirmohis claim as the
    demolition of the property of the temple by ―some miscreants‖), the plaint was
    amended. The amended plaint refers to the trust deed executed by Nirmohi
    Akhara on 19 March 1949 reducing its existence into writing. The Akhara claims
    to own several temples and properties, which vest in it. The relief that is claimed
    in the suit is for the removal of the receiver ―from the management and charge of
    the said temple of Janmabhoomi‖ and for delivering it to the plaintiff.
    The averments contained in the plaint as well as the reliefs which have been
    claimed by Nirmohi Akhara indicate that the claim is founded on an entitlement,
    which is asserted to be the charge and management of the temple. In that
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    245
    capacity, the Nirmohis state that they have been in possession of the
    Janmabhumi temple and have received offerings made by devotees. The plaint
    contains a reference to the temples that are owned and managed by Nirmohi
    Akhara. There is a reference to the possession of the Janmasthan temple by the
    Akhara. Ultimately, the claim for relief is a direction simpliciter to the receiver to
    handover the management and charge of the temple to it.
  6. In the written statement, which was filed by the Muslim parties (defendant
    nos 6 to 8), the plea taken was that in the Suit of 1885 which was instituted by
    Mahant Raghubar Das, the relief was confined to the Chabutra outside the
    mosque and no objection was taken in respect of the mosque which was
    depicted in the site plan.
    In its replication, Nirmohi Akhara expressed ignorance about the suit filed by
    Mahant Raghubar Das. The Akhara claims that it has been wrongfully deprived of
    charge and the right to manage the temple as a result of the proceedings.
    Though in the plaint it appears that the claim in the suit was in respect of the
    inner courtyard, in the replication filed by Nirmohi Akhara to the written statement
    of the tenth defendant, it has been stated that the outer enclosure was in its
    possession and was owned and managed by it until 1982 when it came into
    possession of the receiver in a suit inter se being Regular Suit 39 of 1982.
  7. The averments contained in the pleadings of Nirmohi Akhara in Suit 3 must
    be read together with the nature of their defence to Suit 5. Suit 5 has been
    instituted on behalf of the deity of Lord Ram and the Janmasthan by a next friend.
    PART M
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    Nirmohi Akhara in its written statement in Suit 5 opposes the maintainability of
    the Suit on the ground that the Janmasthan is not a juridical person and the next
    friend had no right or authority to institute a suit on behalf of the deity and the
    Janmasthan. Nirmohi Akhara has distanced itself from Suit 5, claiming that the
    idol of Lord Ram is not known as ―Ram Lala Virajaman‖ and that the Janmasthan
    is simply a place and not a juridical person.
    Nirmohi Akhara has claimed in its written submissions that it is the ―Shebait of
    Bhagwan Shri Ram installed in the temple in dispute‖ and that the Akhara ―alone‖
    has the right to control, supervise and repair or even to reconstruct the temple, if
    necessary. It claims that in its capacity as the shebait and manager, ―the temple
    belongs to Nirmohi Akhara‖ and the plaintiffs in Suit 5 ―have no real title to sue‖. It
    has been urged that Suit 5 encroaches upon the rights of Nirmohi Akhara to
    manage the temple. Nirmohi Akhara urges that the entire premises belong to it
    and the plaintiffs in Suit 5 have no right of declaration against the right and title of
    Nirmohi Akhara. In the additional written statement, it has been claimed that the
    outer part was in the management and charge of Nirmohi Akhara till it was
    attached when the receiver was appointed in Regular Suit 239 of 1982.
    M.2 Conflict between Suit 3 and Suit 5
  8. The following position emerges from an analysis of the pleadings of
    Nirmohi Akhara in Suit 3 and as a defendant in Suit 5:
    (i) The claim of Nirmohi Akhara is for the management and charge of Ram
    Janmabhumi temple;
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    (ii) The relief sought is for handing over of the management and charge of the
    temple by the receiver to it;
    (iii) In the context of (i) and (ii) above, Nirmohi Akhara has claimed that it was
    in possession of the temple;
    (iv) The deprivation of the right claimed arose when the receiver took over
    management and charge on 5 January 1950;
    (v) The claim of Nirmohi Akhara is in the capacity of a shebait and as a
    manager of the temple;
    (vi) Nirmohi Akhara opposes the maintainability of Suit 5 on the ground that as
    a shebait, it alone is entitled to represent the deity of Lord Ram;
    (vii) The entitlement of Nirmohi Akhara to sue is to the exclusion of any third
    party and hence, Suit 5 which has been instituted through a next friend, is
    asserted as not being maintainable; and
    (viii) The status of Ram Janmasthan as a juristic entity is denied and hence it
    would (according to Nirmohi Akhara) not be entitled to pursue the claim in
    Suit 5.
    Both on the basis of the pleadings and the submissions which have been urged
    during the course of the hearing, a clear conflict of claims and entitlements has
    emerged between the plaintiffs in Suit 3 and Suit 5.
  9. Mr K Parasaran, learned Senior Counsel appearing on behalf of the
    plaintiffs in Suit 5 has submitted that Suit 3 is barred by limitation, a submission
    which has also been urged on behalf of the plaintiff in Suit 4 by Dr Dhavan. On
    the other hand, it must be noted that Dr Dhavan submitted that Nirmohi Akhara is
    PART M
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    as a matter of fact and evidence entitled to claim shebaiti rights in respect of the
    idols of Lord Ram at the Janmabhumi. He however maintains that Suit 3 is barred
    by limitation and hence, no relief should or could have been granted in their suit.
    Hence, from the arguments before this Court it has emerged that:
    (i) The plaintiffs in Suit 4 and Suit 5 have challenged Suit 3 on the ground of
    the bar of limitation;
    (ii) The plaintiffs in Suit 5 oppose the claim of the plaintiff in Suit 3 to be the
    shebait of the idols of Lord Ram; and
    (iii) The plaintiff in Suit 4 accepts the entitlement of the plaintiff in Suit 3 as a
    shebait, subject to the caveat that the suit itself is barred by limitation.
  10. A query was addressed by this Court to Mr S K Jain, learned Senior
    Counsel appearing for the plaintiff in Suit 3 as to whether it is open to a shebait to
    assert title or ownership in a manner hostile to the claim of the deity. In response,
    Mr Jain submitted that the claim of Nirmohi Akhara is for management and
    charge of the temple in its character as a shebait and no more. Hence, though it
    has used the phrases ‗own‘ and ‗belong‘, they are not intended to assert a claim
    of full ownership, over and above or any higher than as a shebait. This aspect of
    Mr Jain‘s submission will be examined shortly in the context of the issue of
    limitation. However, it must be also noted at this stage that, during the course of
    the hearing, Mr Jain tendered a statement on the stand of Nirmohi Akhara on the
    maintainability of Suit 5 in the following terms:
    ―1. The Nirmohi Akhara would not press the issue of
    maintainability of Suit No. OOS No. 5 of 1989 which has
    been filed on behalf of the deities Plaintiff No. 1 and 2 through
    Plaintiff No. 3 as their next friend under Order 32 Rule 1 CPC
    PART M
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    provided the other Hindu Parties i.e. Plaintiff of OOS No. 1 of
    1989 and Plaintiff No. 3 of OOS No. 5 of 1989 do not press or
    question the Shebaiti right of Nirmohi Akhara in relation to the
    deities in question and the maintainability of Suit OOS No. 3
    of 1989 by the Plaintiff Nirmohi Akhara.
  11. It is submitted that the plaintiff – Nirmohi Akhara can
    independently maintain the suit even in the absence of deities
    as parties in Suit OOS No. 3 of 1989 as the identity of the
    deities is merged in the identity of the Shebait – Nirmohi
    Akhara. A suit filed by the Nirmohi Akhara ―as a Shebait‖ is a
    suit filed by and on behalf of the deities.
  12. It is stated that, the reliefs sought by the Nirmohi Akhara
    ―For restoration of charge and management from the
    receiver‖ cannot be categorized as reliefs ―against‖ the
    interest of the deities for which it can be said that they should
    be represented as a defendant through a disinterested next
    friend.‖
    In other words, the stand of Nirmohi Akhara is that it alone is entitled to represent
    the interest of the deity in its character as a shebait which it has done in Suit 3.
    Moreover, absent any allegation of mismanagement on the part of the shebait, a
    suit cannot be instituted in the name of the deity by a next friend, as has been
    done in Suit 5. This aspect will be explored in greater detail when the
    maintainability of Suit 5 is analysed. At this stage, we must also notice the
    implications of Dr Dhavan having accepted the shebaiti claim of Nirmohi Akhara.
    The concession cannot exist in a vacuum. The assertion of the claim can only
    take place in a context which acknowledges the existence of a deity whom the
    shebait seeks to represent. Hence, a specific query was posed to Dr Dhavan as
    to whether, quite independent of the issue of limitation, the concession which has
    been made on his behalf would necessarily result in a legal consequence in
    regard to the position of the deity‘s presence at Ram Janmasthan. To this, it must
    be noted that the response of Dr Dhavan was that the presence of the deity at
    Ramchabutra, in his submission, envisaged only an easementary right to worship
    PART M
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    for the Hindu devotees to pray and, for that purpose, to gain access to the
    courtyard.
    M.3 Issues and findings of the High Court
  13. Before proceeding with our analysis any further, it is necessary at this
    stage to enumerate the issues which were framed in Suit 3 and the findings of the
    High Court.
    1 Is there a temple of Janmabhumi with idols installed therein as
    alleged in para 3 of the plaint in Suit 3?
     Justice S U Khan – The idols were held to have been placed in the
    pulpit inside the constructed portion of the mosque for the first time
    during the night of 22/23 December 1949.
     Justice Sudhir Agarwal – The premises in dispute cannot be
    treated to be a temple in the manner as claimed by the plaintiffs in
    Suit 3. Hence, issue 1 was answered in the negative.
     Justice D V Sharma – There is no evidence to establish that there
    was any temple belonging to Nirmohi Akhara inside the structure in
    which idols have been installed from time immemorial.
    2 Does the property in Suit belong to the plaintiff in Suit 3?
     Justice Sudhir Agarwal – The property which forms the subject
    matter of the claim in Suit 3 consists of the premises in the inner
    courtyard. There is no documentary evidence to establish title nor is
    there any evidence to establish adverse possession.
     Justice D V Sharma held against the plaintiff.
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    3 Have plaintiffs acquired title by adverse possession for over 12
    years?
     Justice S U Khan – For the period before 1855, there is no need to
    decide the question of adverse possession.
     Justice Sudhir Agarwal held against the plaintiff.
     Justice D V Sharma held against the plaintiff.
    4 Are plaintiffs entitled to get management and charge of the said
    temple?
     Justice Sudhir Agarwal held against the plaintiff. The idols were
    placed under the central dome on the night intervening 22/23
    December 1949. The plaintiff having disputed this cannot be treated
    as shebaits of the idols placed under the central dome since there is
    no evidence of their taking care of the deity in the inner courtyard
    under the central dome.
     Justice D V Sharma held against the plaintiff.
    5 Is the property in suit a mosque made by Emperor Babur known as
    Babri Masjid?
     Justice S U Khan – The constructed portion of the disputed
    premises was put up as a mosque by or under the orders of Babur.
    It was not material if it was built by Mir Baqi or someone else.
    However, it is not proved by direct evidence that the premises in
    dispute including the constructed portion belonged to Babur or to the
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    person who constructed the mosque. On the basis of the
    inscriptions alone it cannot be held that the building was constructed
    by or under the orders of Babur or that it was constructed in 1528.
     Justice Sudhir Agarwal – The defendants failed to prove that the
    property in dispute was constructed by Babur in 1528.
     Justice D V Sharma – The property in dispute has been
    constructed by Babur.
    6 Was the alleged mosque dedicated by Emperor Babur for worship by
    Muslims in general and made a public waqf property?
     Justice S U Khan – It cannot be held that the mosque was not a
    valid mosque, having been constructed over the land of someone
    else.
     Justice Sudhir Agarwal – In the absence of evidence direct,
    circumstantial or otherwise issue no 6 has not been proved and is
    answered in the negative.
     Justice D V Sharma – Decided together with issue no 1.
    7(a) Has there been a notification under Muslim Waqf Act (Act no 13 of
    1936) declaring this property in suit as a Sunni Waqf?
     Justice Sudhir Agarwal – Answered in the negative.
     Justice D V Sharma – As per the conclusions drawn in Suit 4.
    7(b) Is the said notification final and binding? Its effect.
     Justice Sudhir Agarwal – Answered In the negative.
     Justice D V Sharma – As per the conclusions drawn in Suit 4.
    PART M
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    8 Have the rights of the plaintiffs been extinguished for want of
    possession for over 12 years prior to the suit?
     Justice S U Khan – Parties are enjoying joint possession and
    hence, it was not necessary to decide the issue of adverse
    possession.
     Justice Sudhir Agarwal – The suit was instituted in 1959 and it
    cannot be said that in the preceding 12 years, the plaintiffs never
    had possession of the inner courtyard. Neither of the plaintiffs have
    discharged the burden of establishing that they were owners of the
    property in dispute nor have the defendants established that the
    plaintiffs remain dispossessed for over 12 years and that the
    defendants have fulfilled the requirements of adverse possession.
    The issue is accordingly answered in the negative.
     Justice D V Sharma – Answered against the plaintiff and as per the
    conclusions drawn in Suit 4.
    9 Is the suit within time?
     Justice S U Khan – The suit was within limitation.
     Justice Sudhir Agarwal – The suit is barred by limitation under
    Article 120 of the Limitation Act. Articles 47, 142 and 144 of the
    Limitation Act were inapplicable.
     Justice D V Sharma – The suit is barred by limitation.
    10(a) Is the suit bad for want of notice u/s 80C?
     Justice Sudhir Agarwal – answered in favour of the plaintiffs.
    PART M
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     Justice D V Sharma – answered in favour of the plaintiffs.
    10(b) Is the above plea available to contesting defendants?
     Justice Sudhir Agarwal – answered in favour of the plaintiffs.
     Justice D V Sharma – answered in favour of the plaintiffs.
    11 Is the suit bad for non-joinder of necessary defendants?
     Justice S U Khan – though the issue has not been dealt with
    specifically, he has agreed with the findings of Justice Sudhir
    Agarwal which are not inconsistent with his own findings.
     Justice Sudhir Agarwal – answered in favour of plaintiffs as not
    pressed.
     Justice D V Sharma – decided in terms of the findings on issue 21
    in Suit 4.
    12 Are defendants entitled to special costs u/s 35 CPC?
     Justice Sudhir Agarwal – answered in favour of the plaintiffs as
    not pressed.
     Justice D V Sharma – answered in the negative.
    13 To what relief, if any, is the plaintiff entitled?
     Justice S U Khan – Each of the three parties (Muslims, Hindus and
    Nirmohi Akhara) is entitled to a declaration of joint title and
    possession to the extent of one-third share each and a preliminary
    decree is passed to that effect.
     Justice Sudhir Agarwal – The plaintiff in Suit 3 is not entitled to
    any relief. Despite this, it has been held that possession of the area
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    governed by Ramchabutra, Sita Rasoi and Bhandar in the outer
    courtyard is declared to be the share of Nirmohi Akhara in the
    absence of any claim for better title. Moreover, the open area in the
    outer courtyard shall be shared by Nirmohi Akhara with the plaintiffs
    in Suit 5.
     Justice D V Sharma – the suit is dismissed and Nirmohi Akhara is
    not entitled to any relief.
    14 Is the suit not maintainable as framed?
     Justice S U Khan – Issue not decided specifically. Miscellaneous
    findings – he has agreed with Justice Sudhir Agarwal, subject to
    anything contrary in his (Justice S U Khan‘s) judgment.
     Justice Sudhir Agarwal – suit held not maintainable. Upon the
    attachment of the property under Section 145 of the CrPC 1898, the
    plaintiffs could have filed an objection before the Magistrate. The
    plaintiff did not file any objections or seek any declaration of title, in
    the absence of which the civil judge could not have directed the
    handing over of charge by the receiver to the plaintiff.
     Justice D V Sharma – The issue is decided in favour of the
    plaintiffs.
    15 Is the suit property valued and court-fee paid sufficient?
     Justice Sudhir Agarwal – answered in favour of the plaintiffs as
    not pressed.
    PART M
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    16 Is the suit bad for want of notice u/s 83 of U.P. Act 13 of 1936?
     Justice Sudhir Agarwal – – answered in the negative.
    17 Whether Nirmohi Akhara, the Plaintiff, is a Panchayati Math of
    Ramanand sect of Bairagis and as such, is a religious denomination
    following its religious faith and per suit according to its own
    customs? (added by Hon‘ble High Court‘s order dated 23 February
    1996)
     Justice Sudhir Agarwal – answered in favour of the plaintiffs.
     Justice D V Sharma – answered held in favour of the plaintiffs.
    M.4 Limitation in Suit 3
  14. Suit 3 was instituted on 17 December 1959. The Limitation Act of 1908
    was in force on the date of the institution of the Suit. Section 3 of the Limitation
    Act provides that subject to the provisions contained in Sections 4 to 25
    (inclusive) every suit instituted, appeal preferred, and application made, after the
    period of limitation prescribed by the first schedule shall be dismissed, although
    limitation has not been set up as a defence. Section 31(b)125 of the Limitation Act
    1963 saves suits, appeals and applications which were pending on the date of its
    commencement from the application of the legislation. As a result, the issue of
    limitation for the purpose of Suit 3 is governed by the Limitation Act 1908.

125 Section 31. Provisions as to barred or pending suits, etc…
(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such
commencement.
PART M
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By a split 2:1 verdict, the High Court held that Suit 3 was barred by limitation, the
dissenting judge on this issue being Justice S U Khan.

  1. Three articles of the schedule to the Limitation Act 1908 have been
    pressed in aid and the issue is which of those articles would stand attracted. The
    relevant articles are Articles 47, 120 and 142. These articles are extracted in the
    table below:
    Description of suit Period of limitation Time from which period
    begins to run
  2. By any person bound by
    an order respecting the
    possession of immoveable
    property made under the Code
    of Criminal Procedure, 1898,
    or the Mamlatdars Courts Act,
    1906, or by any one claiming
    under such person, to recover
    the property comprised in
    such order.
    [Three years] The date of the final order in
    the case.
  3. Suit for which no period
    of limitation is provided
    elsewhere in this schedule.
    [Six years] When the right to sue accrues.
  4. For possession of
    immoveable property when
    the plaintiff, while in
    possession of the property,
    has been dispossessed or has
    discontinued the possession.
    [Twelve years] The date of the dispossession
    or discontinuance.
    Relevant dates
  5. Before we enter upon the issue of limitation, it is necessary to recapitulate
    the relevant dates bearing on the issue. They are as follows:
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    (i) On 29 December 1949, a preliminary order was passed under Section 145
    of the CrPC 1898 by the Additional City Magistrate and while ordering
    attachment, a receiver was appointed;
    (ii) On 5 January 1950, the receiver took charge and made an inventory of the
    attached properties;
    (iii) On 16 January 1950, Suit 1 was instituted by Gopal Singh Visharad
    seeking a declaration that he was entitled to worship and offer prayers at
    the main Janmabhumi near the idols. On the same date, an ad interim
    injunction was granted in the Suit;
    (iv) On 19 January 1950, the ad interim injunction in Suit 1 was modified in the
    following terms:
    ―The opposite parties are hereby restrained by means of
    temporary injunction to refrain from removing the idols in
    question from the site in dispute and from interfering with
    puja etc. as at present carried on. The order dated
    16.01.1950 stands modified accordingly.‖

(v) On 3 March 1951, the order of temporary injunction dated 16 January 1950
as modified on 19 January 1950 was confirmed;
(vi) On 30 July 1953, the Additional City Magistrate passed the following order
in the proceedings under Section 145:
―The finding of the Civil Court will be binding on the
Criminal Court. It is no use starting proceedings in this
case under Section 145 Cr.P.C. and recording evidence
specially when a temporary injunction stands, as it cannot
be said that what may be the finding of this Court after
recording the evidence of parties. From the administrative
point of view the property is already under attachment and
no breach of peace can occur.
I, therefore, order that the file under Section 145 Cr.P.C.
be consigned to records as it is and will be taken out for
PART M
259
proceedings further when the temporary injunction is
vacated.‖
(vii) On 31 July 1954, the Additional City Magistrate issued the following
directions:
―This file cannot be weeded as it is not a disposed of file.
How do you report that it will be weeded of?‖
(viii) On 26 April 1955, an appeal against the order dated 3 March 1951 under
Order XLIII, Rule 1(r) of the Code of Civil Procedure 1908 was dismissed
by the High Court; and
(ix) On 17 December 1959, Suit 3 was instituted by Nirmohi Akhara for a
decree against the receiver for handing over charge and management of
the temple.
Reasons of the High Court

  1. Justice S U Khan adduced the following reasons for holding that the suit
    was not barred by limitation:
    (i) First, the last order which was passed in the proceedings under Section
    145 was on 30 July 1953 (except for an order in 1970 for replacing the
    receiver on the death of the incumbent). This order and the subsequent
    order of the Magistrate dated 31 July 1954 indicated that the proceedings
    under Section 145 had not been dropped or finalised. In the event that the
    Magistrate had passed some final order either after the dismissal of the
    appeal against the order granting an interim injunction or on some other
    date, it would have provided a fresh starting point for the purpose of
    limitation to file a suit for a declaration;
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    (ii) Even if it were to be held that Suit 3 is barred by limitation, the rights and
    entitlement of the contesting parties would have to be decided in Suit 1
    which was instituted within the period of limitation. A decision on the title of
    Nirmohi Akhara in Suit 1 would be sufficient for the purpose of Section
    146(1) of the CrPC;
    (iii) The demolition of the constructed portion of the premises on 6 December
    1992, acquisition of the premises and the adjoining area by the Union
    Government and the decision of the Supreme Court in Dr M Ismail
    Faruqui v Union of India126, gave a fresh starting point for limitation. Even
    if the remedy of all parties (except the plaintiff in Suit 1) was barred by
    limitation, its rights still subsisted. The demolition of the structure gave a
    fresh cause of action for a declaratory suit under Section 42 of the Specific
    Relief Act 1877;
    (iv) The receiver appointed under Section 145 of the Magistrate cannot hold
    the property indefinitely after attachment. Hence, a liberal view would have
    to be taken in the absence of which uncertainty would be created. Where
    due to the attachment, a suit for possession could not be filed, Section 28
    would not extinguish the rights of the parties. Moreover, the principle of a
    continuing wrong under Section 23 of the Limitation Act 1908 was
    applicable and Nirmohi Akhara was being constantly denied their right to
    charge and management; and

126 (1994) 6 SCC 360
PART M
261
(v) In any event, even if the suit was barred by limitation, the court was bound
to pronounce on all issues as required by Order XIV Rule 2(1) of the Code
of Civil Procedure 1908.
Justice Sudhir Agarwal adduced the following reasons for holding that Suit 3 was
barred by limitation:
(i) The cause of action for the Suit arose on 5 January 1950 upon the receiver
taking charge of the inner courtyard;
(ii) Suit 3 was confined to the premises of the inner courtyard. The plaintiffs in
their pleadings have neither sought a declaration of title nor have they
claimed to have been dispossessed illegally by anyone. The claim is that
the City Magistrate had illegally taken over management and charge of the
temple. The City Magistrate passed a statutory order under Section 145
and pursuant to the order of attachment the possession of the inner
courtyard was given to the receiver. An order of attachment under Section
145 could not constitute a deprivation of the right to possession of the real
owner but the receiver is said to hold the property on behalf of the true
owner. There being no dispossession of Nirmohi Akhara, Article 142 had
no application; and
(iii) Article 47 is also not applicable. Hence, the issue of limitation was required
to be adjudicated upon with reference to Article 120. The suit was
instituted beyond the period of six years specified in Article 120 and hence
was barred by limitation.
PART M
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Justice D V Sharma held that for the purposes of determining limitation in Suit 3,
Article 120 was applicable. Suit 3 was filed on 17 December 1959. The suit not
having been filed within six years of the accrual of the cause of action, it was
barred by limitation.
Submissions of Nirmohi Akhara

  1. Mr S K Jain, learned Senior Counsel for the plaintiffs in Suit 3 made the
    following submissions with respect to limitation:
    I No final order has been passed in the proceedings under Section 145.
    Hence, limitation under Article 47 of the Limitation Act 1908 has not
    commenced:
    (i) The cause of action in the Suit arose on 5 January 1950 when the
    receiver took charge of the inner courtyard;
    (ii) The Magistrate‘s order under Section 145 dated 29 December 1949
    was a preliminary order and provided the cause of action. However,
    the limitation for such a suit would commence only upon passing of
    a final order in the proceedings under Section 145. In the present
    case, as noted by the Magistrate in the order dated 31 July 1954,
    the proceedings under Section 145 had not been disposed of and
    therefore, the final order had still not been passed. The
    proceedings under Section 145 continue to remain pending; and
    (iii) The suit is governed by Article 47 of the Limitation Act 1908. The
    limitation of three years for a suit under Article 47 commences from
    the date of the final order in the case. Under Article 47, the first
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    column contains the description of the suit and refers to a person
    bound by an order respecting the possession of immovable
    property made under the CrPC. The third column under Article 47
    specifies the time from which limitation begins to run and mentions
    the commencement of limitation from the date of the passing of the
    final order. A suit that is categorised in the first column would be
    governed only by that, unaffected by the use of the words in the
    third column. The Limitation Act bars suits filed ―after‖ the limitation
    period but does not prevent suits from being instituted ―before‖ the
    period has commenced.
    II Denial of Nirmohi Akhara‘s ‗absolute‘ shebaiti rights of management
    and charge is a continuing wrong. By virtue of Section 23 of the
    Limitation Act 1908, a fresh cause of action arose every day:
    (i) The limitation for Suit 3 is governed by Article 142 as the plaintiffs
    were dispossessed of their property. Article 142 is applicable when
    the suit is filed for possession of immovable property when the
    plaintiff, while in possession of the property, has been dispossessed
    or has discontinued the possession. The plaintiffs in Suit 3 had the
    management and charge over the idols and the temple as they were
    performing the puja, taking care of the pilgrims and performing other
    duties. The rights to do puja, et al. i.e. the shebaiti rights are
    attached to the possession of the immovable property. The plaintiff
    relied on the following precedents to illustrate its proprietary interest
    in the property:
    PART M
    264
    (a) Angurbala Mullick v Debabrata Mullick127 where it was held
    that a shebait enjoys some sort of right or interest in the
    endowed property which partially at least has the character of
    a proprietary right; and
    (b) Commissioner, Hindu Religious Endowments v Sri
    Lakshmindra Thirtha Swamiar of Sri Shirur Mutt128 where
    it was held that in shebaitship both the elements of office and
    property, of duties and personal interest are blended together.
    The office of the Mahant has the character of a proprietary
    right which, though anomalous to some extent, is still a
    genuine legal right.
    (ii) A suit for restoration of shebaiti rights would be for recovery of
    possession and restoration of management. Article 142 would be
    attracted which provides a limitation of 12 years from the date of
    dispossession;
    (iii) The cause of action arose on 5 January 1949 by which Nirmohi
    Akhara was denied its absolute right as a shebait and it continues to
    be denied those rights. The obstruction of the plaintiff‘s right to
    manage the bhog and prayers independently is a continuing wrong
    under Section 23 of the Limitation Act and every obstruction
    provides a fresh cause of action. Reliance was placed upon the
    judgement of the Privy Council in Sir Seth Hukum Chand v

127 1951 SCR 1125
128 1954 SCR 1005
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Maharaj Bahadur Singh129 where the obstruction of prayer and
worship has been held to be a continuing wrong.
III Article 120 of the Limitation Act 1908 is a residuary provision and is
applicable when no other provision, including Articles 47 and 142
applies. The doctrine of merger applies, and the preliminary order
dated 29 December 1949 passed under Section 145 merges with the
order dated 26 April 1955 by which the ad-interim injunction in Suit 1
was upheld by the High Court:
(i) The submission is on the assumption (without conceding) that
Articles 47 and 142 are not applicable and Article 120 applies;
(ii) By virtue of the doctrine of merger, the order of the Additional City
Magistrate dated 29 December 1949 in the proceedings under
Section 145 of the CrPC merged with the order of the High Court
dated 26 April 1955 in the appeal against the interim order to
maintain status quo in Suit 1. Therefore, the plaintiff‘s right to sue
accrued on 26 April 1955. Suit 3 which was filed on 17 December
1959 was within the period of limitation of six years. Reliance was
placed upon the decisions of this Court in:
(a) Chandi Prasad v Jagdish Prasad130
, where it was held that
the doctrine of merger postulates that there cannot be more
than one operative decree governing the same subject-matter
at a given point of time. When the appellate court passes a
decree, the decree of the trial court merges with the decree of

129 (1933) 38 LW 306 (PC)
130 (2004) 8 SCC 724
PART M
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the appellate court, irrespective of whether the appellate court
affirms, modifies or reverses the decree passed by the trial
court; and
(b) S S Rathore v State of Madhya Pradesh131, where it was
held that a decree of a court of first instance merges in the
decree passed in appeal.
IV In a suit for restoration of possession from a receiver, the question of
limitation can never arise and such suits can never be barred by
limitation.
(i) So long as the property of a person from whom possession was
taken continues to be under a receiver, the question of limitation can
never arise; and
(ii) The property cannot remain custodia legis ad-infinitum and it is
incumbent for the court to adjudicate upon the issue of title and the
suit cannot be dismissed as barred by limitation.
V In determining the entitlement to mesne profits, the question of title
will have to be adjudicated upon and possession will have to be
delivered by the receiver to the true owner:
As the property is under the control of the receiver, a suit for mesne profits
for income derived by the receiver can be filed by the true owner and in
such a suit, any benefit which accrues would give rise to a continuing
cause of action.

131 (1989) 4 SCC 582
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VI It is the plaintiff‘s claim that Nirmohi Akhara is also the shebait of the
janmasthan and the idols. For the same reason that Suit 5 of 1989
was held to be within limitation i.e. the deity was a perpetual minor,
the suit of the plaintiff cannot be barred by limitation.

  1. Mr K Parasaran, learned Senior Counsel for the plaintiffs in Suit 5 refuted
    the submissions made by Mr S K Jain and made the following submissions with
    respect to limitation and the maintainability of Suit 3:
    I The Magistrate‘s order under Section 145 is an exercise of police
    powers for securing peace and does not determine title or
    possession over the property. Since such an order does not purport
    to give possession to any party, the question of Nirmohi Akahara
    being dispossessed on account of an order in proceedings under
    Section 145 proceedings does not arise.
    (i) An order under Section 145 is an exercise of police powers for
    securing peace. It is only for preventing breach of peace and does
    not determine the rights of parties with respect to title over property.
    Section 145 proceedings simply freeze or protect the rights of the
    rightful owner. An order of the Magistrate in exercise of the
    executive function can never be a wrongful act or cause injury. The
    order of a civil court cannot be considered as a ‗wrong‘ giving rise to
    a cause of action. Only a judicial authority has the power to decide
    whether the action of the civil court is wrong. Questions relating to
    title and possession are exclusively matters for civil courts and the
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    Magistrate‘s order under Section 145 cannot oust the jurisdiction of
    the civil court;
    (ii) The proceedings under Section 145 are distinct and there exists no
    bar for parties to file a civil suit for title or possession after the order
    has been passed by the Magistrate. The jurisdiction of the civil court
    is not curtailed by the order of the Magistrate under Section 145 and
    civil proceedings can be pursued independently. Reliance was
    placed upon the decisions of this Court in the following cases:
    (i) Bhinka v Charan Singh132
    , where it was held that under
    Section 145(1), the Magistrate‘s jurisdiction is confined only to
    decide whether, any and if so, which of the parties was on the
    date of the preliminary order in possession of the land in
    dispute. The order only declares the actual possession of a
    party on a specified date and does not purport to give
    possession or authorise any party to take possession;
    (ii) Jhummamal alias Devandas v State of Madhya
    Pradesh133
    , where it was held that an order made under
    Section 145 deals only with the factum of possession of the
    party as on a particular day. It confers no title to remain in
    possession of the disputed property. The unsuccessful party
    therefore must get relief only in the civil court in a properly
    constituted suit. A party may file a suit for declaration and
    prove a better right to possession. The civil court has

132 1959 Supp (2) SCR 798
133 (1988) 4 SCC 452
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jurisdiction to give a finding different from that which the
Magistrate has reached in the proceedings under Section
145; and
(iii) Deokuer v Sheoprasad Singh134
, where it was held that in a
suit for declaration of title to property filed when the property
is attached under Section 145, it is not necessary to ask for
further relief of delivery of possession.
(iii) Mr S K Jain‘s submission in Suit 3 stating that the proceedings under
Section 145 have not attained finality and therefore, the limitation
under Article 47 cannot begin to run cannot be accepted. Irrespective
of the proceedings under Section 145, Nirmohi Akhara could
independently have filed a suit for title and possession.
II Section 3 of the Limitation Act 1908 provides that every suit instituted
after the period of limitation shall be dismissed. The Supreme Court
can dispose of appeals only on the ground of limitation. Unlike the
Trial Court that has to decide on all issues, the Supreme Court is not
bound to do so once it comes to the conclusion that a suit is barred
by limitation.
(i) Reliance was placed upon the decision of this Court in Yeswant
Deorao Deshmukh v Walchand Ramchand Kothari135, where it
was observed that the rules of equity have no application where
there are definitive statutory provisions specifying the grounds on
the basis of which alone stoppage or suspension of the running of

134 (1965) 3 SCR 655
135 (1950) SCR 852
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time can arise. While the courts necessarily are ―astute in
checkmating or fighting fraud‖, it should be equally borne in mind
that statutes of limitation are statutes of repose.
III The High Court‘s decision has to be set aside. The decree is contrary
to the law of pleadings. No prayer for a partition of land was sought
by Nirmohi Akhara. The High Court‘s order has not been passed in
pursuance of the ends of justice but is an end of justice.
IV Section 28 of the Limitation Act 1908 extinguishes the substantive
rights of a person. Accordingly, if the party fails on the issue of
limitation, then it also fails on all other substantive issues and
therefore, this Court cannot give any relief to Nirmohi Akhara in Suit
3.
V Article 120 alone governs the suit filed by Nirmohi Akhara. Articles
142 and 144 of the Limitation Act are not applicable. Once limitation
starts to run, it cannot be stopped.
(i) Reliance was placed upon the decision of the Privy Council in Raja
Rajgan Maharaja Jagatjit Singh v Raja Partab Bahadur Singh136
,
where it was held with regard to the statutory period of limitation,
that Article 47 does not apply, as there has been no order for
possession by the Magistrate under Section 145. In a suit for
declaration of title, Articles 142 and 144 do not apply and the suit is
governed by Article 120.

136 (1942) 2 Mad LJ 384
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  1. Dr Rajeev Dhavan, learned Senior Counsel for the plaintiff in Suit 4 made
    the following submissions with respect to limitation of Suit 3:
    I The relief which Nirmohi Akhara has sought in Suit 3 is for
    management and charge. However in its plaint, it has claimed that
    Janmasthan ‗belongs‘ and ‗has always belonged to it‘ and the use of
    these terms in a loose sense may in a given context be inferred as
    ‗possession‘, ‗ownership‘ and ‗implied title‘.
    (i) The relief sought by Nirmohi Akhara was only with respect to
    management and charge of the idols of Lord Ram. The case of
    Nirmohi Akhara is based on the deprivation of shebaiti rights by an
    order under Section 145 of the CrPC 1898. The claim is against the
    State for possession of usufruct and to render services to the deity.
    Words such as ―belong‖ or ―belonging‖ have a flexible meaning.
    Reliance was placed upon the decisions of this Court in:
    (a) Late Nawab Sir Mir Osman Ali Khan v Commissioner of
    Wealth Tax, Hyderabad137 in relation to the discussion on
    the meaning of ‗belonging to‘; and
    (b) Raja Mohammad Amir Ahmad Khan v Municipal Board
    Sitapur138 in relation to the discussion on making unequivocal
    assertions in the plaint and reading the plaint in its entirety to
    decipher the true meaning.
    (ii) Nirmohi Akhara had claimed in paragraph 2 of its plaint that the
    Jamnasthan belongs and has always belonged to it. Further, it has

137 1986 Supp SCC 700
138 AIR 1965 SC 1923
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been claimed in paragraph 4 of the plaint that the temple has been
in the possession of the plaintiff. However, in the written
submissions, the plaintiff has adverted to a claim of ownership and
possession.
(iii) Use of the terms ‗belongs‘ or ‗belonging to‘ may in a given context
be inferred as ‗possession‘, ‗ownership‘ and ‗implied title‘. The term
‗belongs‘ or ‗belonging to‘ is not a term of art and does not have a
definitive meaning. Its interpretation can be open.
II Nirmohi Akhara is using the term ‗belongs‘ to claim title and obviate
the bar of limitation. The term ‗belongs‘ should be given its ordinary
meaning. If Nirmohi Akhara claims title for itself then it is at odds with
the suit of the deity. It can only claim ancillary rights:
(i) Nirmohi Akhara merely claims to serve the idol and is not claiming
the idol itself. Nirmohi Akhara is claiming a duty and not the right to
ownership and title. Accordingly, only Article 120 can apply; and
(ii) Unlike the law of trusts in the United Kingdom, in India, no
ownership or title devolves upon the shebait. The shebait is not the
owner of the property of the idol.
III Nirmohi Akhara has used the proceedings under Section 145 to urge
that the action of the government in denying them absolute shebait
rights is a continuing wrong:
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(i) Section 145 proceedings are not for determining claims for title or
ownership. Nothing prevented Nirmohi Akhara from filing a
declaratory suit for possession and title; and
(ii) The specific date pleaded of when the cause of action arose was 5
January 1950. Where the law has interfered to take away
possession under the order of the Magistrate, the period of six years
started on that date and there was no scope for invoking a
continuing wrong because the action was complete, and remedies
lay elsewhere.
Having adverted to the submissions which were urged by the learned Senior
Counsel on the issue of whether Suit 3 is barred by limitation, we now proceed to
analyse various provisions of the CrPC 1898 and Articles of the Limitation Act
1908.
Nature and Scope of Section 145 proceedings

  1. The Magistrate attached the property by an order dated 29 December
    1949 made under Section 145 of the CrPC 1898. The plaintiffs in Suit 3 state that
    the cause of action arose on 5 January 1950 when the receiver took charge of
    the property and they were denied charge and management of the temple.
  2. Section 145 was included in Chapter XII of the Code of 1898, titled
    ―Disputes as to Immovable Property‖. Section 145 states thus:
    PART M
    274
    ―Section 145. Procedure where dispute concerning land, etc.,
    is likely to cause breach of peace
    (1) Whenever a District Magistrate, Sub-Divisional
    Magistrate or Magistrate of the first class is satisfied from a
    police report or other information that a dispute likely to cause
    a breach of the peace exists concerning any land or water or
    the boundaries thereof, within the local limits of his
    jurisdiction, he shall make an order in writing, stating the
    grounds of his being so satisfied, and requiring the parties
    concerned in such dispute to attend his Court in person or by
    pleader, within a time to be fixed by such Magistrate, and to
    put in written statements of their respective claims as
    respects the fact of actual possession of the subject of
    dispute.
    (2) For the purposes of this section the expression “land
    or water” includes building, markets, fisheries, crops or other
    produce of land, and the rents or profits of any such property.
    (3) A copy of the order shall be served in the manner
    provided by this Code for the service of a summons upon
    such person or persons as the Magistrate may direct, and at
    least one copy shall be published by being affixed to some
    conspicuous place at or near the subject of dispute.
    (4) The Magistrate shall then, without reference to the
    merits of the claims of any of such parties to a right to
    possess the subject of dispute, peruse the statements so put
    in, hear the parties, receive all such evidence as may be
    produced by them respectively, consider the effect of such
    evidence, take such further evidence (if any) as he thinks
    necessary, and, if possible, decide whether any and which of
    the parties was at the date of the order before mentioned in
    such possession of the said subject:
    Provided that, if it appears to the Magistrate that any party
    has within two months next before the date of such order
    been forcibly and wrongfully dispossessed, he may treat the
    party so dispossessed as if he had been in possession at
    such date:
    Provided also, that if the Magistrate considers the case one of
    emergency, he may at any time attach the subject of dispute,
    pending his decision under this section.
    (5) Nothing in this section shall preclude any party so
    required to attend, or any other person interested, from
    showing that no such dispute as aforesaid exists or has
    existed; and in such case the Magistrate shall cancel his said
    order, and all further proceedings thereon shall be stayed,
    but, subject to such cancellation, the order of the Magistrate
    under sub-section (1) shall be final.
    (6) If the Magistrate decides that one of the parties was
    or should under the first proviso to sub-section (4) be treated
    as being in such possession of the said subject, he shall
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    275
    issue an order declaring such party to be entitled to
    possession thereof until evicted therefrom in due course of
    law, and forbidding all disturbance of such possession until
    such eviction and when he proceeds under the first proviso to
    sub-section (4), may restore to possession the party forcibly
    and wrongfully dispossessed.
    (7) When any party to any such proceeding dies, the
    Magistrate may cause the legal representative of the
    deceased party to be made a party to the proceeding and
    shall thereupon continue the inquiry, and if any question
    arises as to who the legal representative of a deceased party
    for the purpose of such proceeding is, all persons claiming to
    be representatives of the deceased party shall be made
    parties thereto.
    (8) If the Magistrate is of opinion that any crop or other
    produce of the property, the subject of dispute in a
    proceeding under this section pending before him, is subject
    to speedy and natural decay, he may make an order for the
    proper custody or sale of such property, and, upon the
    completion of the inquiry, shall make such order for the
    disposal of such property, or the sale-proceeds thereof, as he
    thinks fit.
    (9) The Magistrate may, if he thinks fit, at any stage of
    the proceedings under this section, on the application of
    either party, issue a summons to any witness directing him to
    attend or to produce any document or thing.
    (10) Nothing in this section shall be deemed to be in
    derogation of the powers of the Magistrate to proceed under
    section 107.‖
    Section 145 is recognised to be a branch of the preventive jurisdiction of the
    Magistrate.139 Section 145(1) can be invoked on the satisfaction of the Magistrate
    that ―a dispute likely to cause a breach of the peace exists…‖. The provision
    relates to disputes regarding possession of land or water or its boundaries which
    may result in breach of the peace. The function of the Magistrate is not to go into
    questions of title, but to meet the urgency of the situation by maintaining the party
    in possession. The Magistrate is empowered to call upon the parties to put in
    written statements in support of their claim to ―actual possession‖. Such an order

139 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 426
PART M
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is to be served as a summons upon the parties. The Magistrate is to peruse the
statements, hear the parties and weigh the evidence, in order to ascertain who
was in possession at the date of the order. The Magistrate may make that
determination ―if possible‖ to do so. Moreover, the determination is about the
factum of possession on the date of the order ―without reference to the merits of
the claim of any of such parties to a right to possess the subject of the dispute‖.
These words indicate that the Magistrate does not decide or adjudicate upon the
contesting rights to possess or the merits of conflicting claims. The Magistrate is
concerned with determining only who was in possession on the date of the order.
If possession has been wrongfully taken within two months of the order, the
person so dispossessed is to be taken as the person in possession. In cases of
emergency, the Magistrate can attach the subject of the dispute, pending
decision. The action ultimately contemplated under Section 145 is not punitive,
but preventive, and for that purpose is provisional only till a final or formal
adjudication of rights is done by a competent court in the due course of law.
Thus, nothing affecting the past, present and future rights of parties is
contemplated under the provision.

  1. The object of the provision is merely to maintain law and order and to
    prevent a breach of the peace by maintaining one or other of the parties in
    possession, which the Magistrate finds they had immediately before the dispute,
    until the actual right of one of the parties has been determined by a civil court.
    140
    The object is to take the subject of dispute out of the hands of the disputants,
    allowing the custodian to protect the right, until one of the parties has established

140 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 427
PART M
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her right (if any) to possession in a civil court.141 This is evident from the
provisions of sub-section (6) of Section 146. The Magistrate declares the party
which is entitled to possession ―until evicted therefrom in due course of law.‖
While proceeding under the first proviso, the Magistrate may restore possession
to a party which has been wrongfully and forcibly dispossessed. No party can be
allowed to use the provisions of Section 145 for ulterior purposes or as a
substitute for civil remedies. The jurisdiction and power of the civil court cannot in
any manner be hampered.142

  1. This Court has analysed the nature and scope of proceedings under
    Section 145 in the following cases:
    (i) In Bhinka v Charan Singh143, the respondent, claimed the lands in dispute
    ―to be his sir‖, while the appellants claimed to be in possession of the lands
    as hereditary tenants. The Magistrate initiated proceedings under Section
    145, attached the lands in dispute and directed them to be placed in
    possession of a superdgidar pending disposal of those proceedings. After
    enquiries, the Magistrate concluded that the appellants were entitled to be
    in possession until evicted in due course of law. Thereafter, the respondent
    filed a suit before the Revenue Courts. The appeal before the Supreme
    Court arose from that proceeding. One of the issues before this Court was
    whether the appellants had taken possession in accordance with the
    provisions of Section 145. Justice Subba Rao, speaking for a three judge

141 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 427
142 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 451
143 1959 Supp (2) SCR 798
PART M
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Bench of this Court, held thus:
―16… Under Section 145(6) of the Code, a Magistrate is
authorized to issue an order declaring a party to be entitled to
possession of a land until evicted therefrom in due course of
law. The Magistrate does not purport to decide a party’s
title or right to possession of the land but expressly
reserves that question to be decided in due course of
law. The foundation of his jurisdiction is on
apprehension of the breach of the peace, and, with that
object, he makes a temporary order irrespective of the
rights of the parties, which will have to be agitated and
disposed of in the manner provided by law. The life of the
said order is co-terminus with the passing of a decree by
a civil court and the moment a civil court makes an order
of eviction, it displaces the order of the criminal court.
The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini
Chowdhrani [(1901) LR 29 IA 24, 33] tersely states the effect
of orders under Section 145 of the Code of Criminal
Procedure thus:
―These orders are merely police orders made to prevent
breaches of the peace. They decide no question of
title…‖.
We, therefore, hold that a provisional order of a Magistrate in
regard to possession irrespective of the rights of the parties
cannot enable a person to resist the suit under Section 180 of
the Act.‖
(Emphasis supplied)
(ii) In R H Bhutani v Miss Mani J Desai144
, the appellant entered into a leave
and license agreement with the first respondent to occupy a cabin owned
by her. When a dispute over increase in compensation arose between the
parties, the first respondent sought to evict the appellant and also hand
over the possession of the cabin to the second and third respondents.
Thereafter, the appellant filed an application under Section 145 and the
Magistrate commenced the proceedings. While the proceedings were
pending, the respondent filed a civil suit. The Magistrate concluded that
appellant was in actual possession of the cabin and had been forcibly

144 (1969) 1 SCR 80
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dispossessed. In the Revision Petition before the High Court, the
Magistrate‘s order was set aside and it was held that the Magistrate had
breached the scope of his powers under Section 145. The order of the
High Court was assailed before this Court, which set aside the order of the
High Court and restored the order of the Magistrate. Justice JM Shelat,
speaking for a three judge Bench of this Court discussed the scope of
proceedings under Section 145 if the following terms:
―8. The object of Section 145, no doubt, is to prevent
breach of peace and for that end to provide a speedy
remedy by bringing the parties before the court and
ascertaining who of them was in actual possession and
to maintain status quo until their rights are determined
by a competent court… The enquiry under Section 145 is
limited to the question as to who was in actual
possession on the date of the preliminary order
irrespective of the rights of the parties.‖
(Emphasis supplied)
(iii) In Shanti Kumar Panda v Shakuntala Devi145, there was a dispute
between the parties regarding a shop. Proceedings under Section 145
were commenced on the basis of a complaint filed by the appellant and the
Magistrate attached the property. The respondent, who claimed to be
interested in the subject-matter of the dispute was not allowed to be
impleaded in the proceedings. The final order under Section 145 was in
favour of the appellant. Revision petitions against the order were
dismissed. Thereafter, the respondent filed a civil suit and secured an
injunction. The injunction was however, vacated by the District Court on
the ground that since Section 145 proceedings had terminated in the
appellant‘s favour, the Trial Court was not justified in issuing the injunction

145 (2004) 1 SCC 438
PART M
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unless and until the order of the Magistrate was superseded by a civil
court‘s decree and no injunction could be granted while the property was
‗custodia legis‘. The High Court reversed the District Court‘s order. The
decision of the High Court was assailed before this Court. A three judge
Bench of this Court dismissed the appeal and dealt with the nature of
proceedings under Section 145. Justice J M Shelat, speaking for the Court
held:
―10. The proceedings under Sections 145/146 of the Code
have been held to be quasi-civil, quasi-criminal in nature or
an executive or police action. The purpose of the provisions is
to provide a speedy and summary remedy so as to prevent a
breach of the peace by submitting the dispute to the
Executive Magistrate for resolution as between the parties
disputing the question of possession over the property. The
Magistrate having taken cognizance of the dispute would
confine himself to ascertaining which of the disputing parties
was in possession by reference to the date of the preliminary
order or within two months next before the said date, as
referred to in the proviso to sub-section (4) of Section 145
and maintain the status quo as to possession until the
entitlement to possession was determined by a court, having
competence to enter into adjudication of civil rights, which an
Executive Magistrate cannot. The Executive Magistrate would
not take cognizance of the dispute if it is referable only to
ownership or right to possession and is not over possession
simpliciter…‖
The Court in the following observations dealt with the interplay between the order
of a Magistrate and the jurisdiction of a civil court:
―15. It is well settled that a decision by a criminal court does
not bind the civil court while a decision by the civil court binds
the criminal court. (See Sarkar on Evidence, 15th Edn., p.
845.) A decision given under Section 145 of the Code has
relevance and is admissible in evidence to show: (i) that there
was a dispute relating to a particular property; (ii) that the
dispute was between the particular parties; (iii) that such
dispute led to the passing of a preliminary order under
Section 145(1) or an attachment under Section 146(1), on the
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given date; and (iv) that the Magistrate found one of the
parties to be in possession or fictional possession of the
disputed property on the date of the preliminary order. The
reasoning recorded by the Magistrate or other findings
arrived at by him have no relevance and are not
admissible in evidence before the competent court and
the competent court is not bound by the findings arrived
at by the Magistrate even on the question of possession
though, as between the parties, the order of the
Magistrate would be evidence of possession. The finding
recorded by the Magistrate does not bind the court. The
competent court has jurisdiction and would be justified
in arriving at a finding inconsistent with the one arrived
at by the Executive Magistrate even on the question of
possession.‖
(Emphasis supplied)
The Court held that the order passed by the Magistrate will not be treated as
binding even the interlocutory jurisdiction of the civil court under Order XXXIX of
the Code of Civil Procedure:
―22…The civil court shall also respect such order and will be
loath to arrive at an interim arrangement inconsistent with the
one made by the Executive Magistrate. However, this is far
from holding that the civil court does not have
jurisdiction to make an order of injunction inconsistent
with the order of the Executive Magistrate. The
jurisdiction is there but the same shall be exercised not
as a rule but as an exception. There may be cases such
as one where the order of the Executive Magistrate can
be shown to be without jurisdiction, palpably wrong or
containing self-contradictory findings. For example, the
Magistrate may have made an order treating the party
dispossessed beyond two months to be as in
possession. There may be cases where in spite of the
order made by the Executive Magistrate based on the
evidence adduced before it, the competent court, based
on the material produced before such court, may be
inclined to hold that prima facie a very strong case for
retaining or placing one of the parties in possession of
the suit property is made out or where it will be totally
unjust or inequitable to continue one party in possession
of the property as ordered by the Executive Magistrate. In
such exceptional situations, the competent court (which will
mostly be a civil court) may have jurisdiction for granting an
order of injunction in departure from the findings recorded and
the declaration made by the Executive Magistrate under
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Section 145 of the Code of Criminal Procedure. The order
under Section 146 of the Code would not pose a problem of
that magnitude. Inasmuch as the property is under
attachment and is placed in the hands of a receiver, the civil
court can comfortably examine whether it would be just and
expedient to continue with the attachment and with the same
receiver or to appoint another receiver or to make some other
interim arrangement during the pendency of the civil suit.‖

(Emphasis supplied)
(iv) In Surinder Pal Kaur v Satpal146, reliance was placed upon the decision in
Shanti Kumar Panda. Justice Dipak Misra (as the learned Chief Justice
then was) speaking for the two judge Bench, held thus:
―10… It is a settled position of law that the observations made
in the proceedings drawn under Section 145 CrPC do not
bind the competent court in a legal proceeding initiated before
it.‖

  1. Section 145 proceedings do not purport to decide a party’s title or right to
    possession of the land. The property held in attachment in proceedings under
    Section 145 is ‗custodia legis‘. Hence, it is not necessary to secure possession
    from a party who is not in possession and is hence, not in a position to deliver
    possession. This Court has analysed the nature of the property under attachment
    in the following decisions:
    (i) In Deokuer v Sheoprasad Singh147
    , a three judge Bench of this Court,
    held that property held under attachment under Section 145 is ‗custodia
    legis‘. The appeal arose out of a suit brought by the appellants in 1947 for
    a declaration that the respondents had acquired no right or title to a
    property under certain deeds and that the deeds were inoperative and

146 (2015) 13 SCC 25
147 (1965) 3 SCR 655
PART M
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void. The suit was decreed by the Trial Court, but on appeal, the High
Court set aside the decree. The High Court held that as the appellants
were not in possession of the property at the date of the suit, their suit
must fail under the proviso to Section 42 of the Specific Relief Act as they
had failed to ask for the further relief of recovery of possession from the
respondents. On the date of the suit, the property in dispute had been
attached by the Magistrate, exercising his powers under Section 145 and
was not in the possession of any party. The issue that arose before this
Court was whether in view of the attachment, the appellants could have in
their suit, sought the relief for delivery of possession to them. Speaking for
the three judge Bench, Justice A K Sarkar held thus:
―4. In our view, in a suit for declaration of title to property filed
when it stands attached under Section 145 of the Code, it is
not necessary to ask for the further relief of delivery of
possession. The fact, if it be so, that in the case of such an
attachment, the Magistrate holds possession on behalf of the
party whom he ultimately finds to have been in possession is,
in our opinion, irrelevant. On the question however whether
the Magistrate actually does so or not, it is unnecessary to
express any opinion in the present case.

  1. The authorities clearly show that where the defendant is
    not in possession and not in a position to deliver possession
    to the plaintiff it is not necessary for the plaintiff in a suit for a
    declaration of title to property to claim possession: see
    Sunder Singh — Mallah Singh Sanatan Dharam High School,
    Trust v. Managing Committee, Sunder Singh-Mallah Singh
    Rajput High School [(1957) LR 65 IA 106] . Now it is obvious
    that in the present case, the respondents were not in
    possession after the attachment and were not in a position to
    deliver possession to the appellants. The Magistrate was in
    possession, for whomsoever, it does not matter, and he was
    not of course a party to the suit. It is pertinent to observe that
    in Nawab Humayun Begam v. Nawab Shah Mohammad Khan
    [AIR (1943) PC 94] it has been held that the further relief
    contemplated by the proviso to Section 42 of the Specific
    Relief Act is relief against the defendant only. We may add
    that in K. Sundaresa Iyer v. Sarvajana Sowkiabil Virdhi Nidhi
    Ltd. [(1939) ILR Mad 986] it was held that it was not
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    necessary to ask for possession when property was in
    custodia legis. There is no doubt that property under
    attachment under Section 145 of the Code is in custodia
    legis. These cases clearly establish that it was not necessary
    for the appellants to have asked for possession.‖
    (ii) In Shanti Kumar Panda, this Court formulated the legal principles
    governing the effect of the order of a Magistrate under Section 145/146
    when legal proceedings are instituted before a court of competent
    jurisdiction:
    ―(1) The words ―competent court‖ as used in sub-section (1)
    of Section 146 of the Code do not necessarily mean a civil
    court only. A competent court is one which has the
    jurisdictional competence to determine the question of title or
    the rights of the parties with regard to the entitlement as to
    possession over the property forming the subject-matter of
    proceedings before the Executive Magistrate:
    (2) A party unsuccessful in an order under Section 145(1)
    would initiate proceedings in a competent court to establish
    its entitlement to possession over the disputed property
    against the successful party. Ordinarily, a relief of recovery of
    possession would be appropriate to be sought for. In legal
    proceedings initiated before a competent court
    consequent upon attachment under Section 146(1) of the
    Code it is not necessary to seek relief of recovery of
    possession. As the property is held custodia legis by the
    Magistrate for and on behalf of the party who would
    ultimately succeed from the court, it would suffice if only
    determination of the rights with regard to the entitlement
    to the possession is sought for. Such a suit shall not be
    bad for not asking for the relief of possession.
    (3) A decision by a criminal court does not bind the civil court
    while a decision by the civil court binds the criminal court. An
    order passed by the Executive Magistrate in proceedings
    under Sections 145/146 of the Code is an order by a criminal
    court and that too based on a summary enquiry. The order is
    entitled to respect and weight before the competent court at
    the interlocutory stage. At the stage of final adjudication of
    rights, which would be on the evidence adduced before the
    court, the order of the Magistrate is only one out of several
    pieces of evidence.
    (4) The court will be loath to issue an order of interim
    injunction or to order an interim arrangement inconsistent with
    the one made by the Executive Magistrate. However, to say
    so is merely stating a rule of caution or restraint, on exercise
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    285
    of discretion by court, dictated by prudence and regard for the
    urgent/emergent executive orders made within jurisdiction by
    their makers; and certainly not a tab on the power of court.
    The court does have jurisdiction to make an interim order
    including an order of ad interim injunction inconsistent with
    the order of the Executive Magistrate. The jurisdiction is there
    but the same shall be exercised not as a rule but as an
    exception. Even at the stage of passing an ad interim order
    the party unsuccessful before the Executive Magistrate may
    on material placed before the court succeed in making out a
    strong prima facie case demonstrating the findings of the
    Executive Magistrate to be without jurisdiction, palpably
    wrong or self-inconsistent in which or the like cases the court
    may, after recording its reasons and satisfaction, make an
    order inconsistent with, or in departure from, the one made by
    the Executive Magistrate. The order of the court — final or
    interlocutory, would have the effect of declaring one of the
    parties entitled to possession and evicting therefrom the party
    successful before the Executive Magistrate within the
    meaning of sub-section (6) of Section 145.‖
    (Emphasis supplied)
    The above formulation is essentially a restatement of the principles which emerge
    from a consistent line of precedent of the Court [See also Jhummamal alias
    Devandas v State of Madhya Pradesh148.]
  2. Where a suit is instituted for possession or for declaration of title before a
    competent civil court, the proceedings under Section 145 should not continue.
    This Court has analysed the above proposition of law in the following cases:
    (i) In Amresh Tiwari v Lalta Prasad Dubey149, Justice S N Variava,
    speaking for a three judge Bench of this Court held thus:
    ―12… The law on this subject-matter has been settled by the
    decision of this Court in the case of Ram Sumer Puri
    Mahant v. State of U.P. [(1985) 1 SCC 427 : 1985 SCC (Cri)

148 (1988) 4 SCC 452
149 (2000) 4 SCC 440
PART M
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98] In this case it has been held as follows: (SCC pp. 428-29,
para 2)
―When a civil litigation is pending for the property wherein the
question of possession is involved and has been adjudicated,
we see hardly any justification for initiating a parallel criminal
proceeding under Section 145 of the Code. There is no scope
to doubt or dispute the position that the decree of the civil
court is binding on the criminal court in a matter like the one
before us…parallel proceedings should not be permitted to
continue and in the event of a decree of the civil court, the
criminal court should not be allowed to invoke its jurisdiction
particularly when possession is being examined by the civil
court and parties are in a position to approach the civil court
for interim orders such as injunction or appointment of
receiver for adequate protection of the property during
pendency of the dispute. Multiplicity of litigation is not in the
interest of the parties nor should public time be allowed to be
wasted over meaningless litigation. We are, therefore,
satisfied that parallel proceedings should not continue….‖
The Court rejected the submission that the principle in Ram Sumer Puri
Mahant v State of UP150
will apply only after the civil court has adjudicated on
the issue:
―13. We are unable to accept the submission that the
principles laid down in Ram Sumer case [(1985) 1 SCC 427 :
1985 SCC (Cri) 98] would only apply if the civil court has
already adjudicated on the dispute regarding the property and
given a finding. In our view Ram Sumer case [(1985) 1 SCC
427 : 1985 SCC (Cri) 98] is laying down that multiplicity of
litigation should be avoided as it is not in the interest of the
parties and public time would be wasted over meaningless
litigation. On this principle it has been held that when
possession is being examined by the civil court and parties
are in a position to approach the civil court for adequate
protection of the property during the pendency of the dispute,
the parallel proceedings i.e. Section 145 proceedings should
not continue.‖
Dealing with the issue as to when the proceedings under Section 145 should not
be pursued any further on the institution of a suit for adjudication, this Court held:

150 (1985) 1 SCC 427
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287
―14. Reliance has been placed on the case
of Jhummamal v. State of M.P. [(1988) 4 SCC 452 : 1988
SCC (Cri) 974] It is submitted that this authority lays down
that merely because a civil suit is pending does not mean that
proceedings under Section 145 of the Criminal Procedure
Code should be set at naught. In our view this authority does
not lay down any such broad proposition. In this case the
proceedings under Section 145 of the Criminal Procedure
Code had resulted in a concluded order. Thereafter the party,
who had lost, filed civil proceedings. After filing the civil
proceedings he prayed that the final order passed in the
Section 145 proceedings be quashed. It is in that context that
this Court held that merely because a civil suit had been filed
did not mean that the concluded order under Section 145 of
the Criminal Procedure Code should be quashed. This is
entirely a different situation. In this case the civil suit had
been filed first. An order of status quo had already been
passed by the competent civil court. Thereafter Section 145
proceedings were commenced. No final order had been
passed in the proceedings under Section 145. In our view on
the facts of the present case the ratio laid down in Ram
Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] fully
applies. We clarify that we are not stating that in every
case where a civil suit is filed, Section 145 proceedings
would never lie. It is only in cases where civil suit is for
possession or for declaration of title in respect of the
same property and where reliefs regarding protection of
the property concerned can be applied for and granted
by the civil court that proceedings under Section 145
should not be allowed to continue. This is because the
civil court is competent to decide the question of title as
well as possession between the parties and the orders of
the civil court would be binding on the Magistrate.‖
(Emphasis supplied)
Having set out the position established in law with respect to Section 145
proceedings, we now advert to the application of the law to the set of facts in the
present case. The provisions of Section 145 can be invoked only when there is a
danger of a breach of peace. The jurisdiction of the Magistrate does not extend to
adjudicate into disputed questions of title. The Magistrate has been vested with
the authority to meet the urgency of the situation and maintain peace. The
determination of the Magistrate is confined to which party was in actual
PART M
288
possession on the date of the order. The real purpose is to decide who has actual
physical possession and not legal possession supported by title over the land. To
initiate proceedings under Section 145, the Magistrate has to be satisfied of the
existence of a dispute which is likely to cause a breach of peace. The enquiry by
the Magistrate is of a summary nature, the object being to ensure tranquillity in
the locality when the dispute is likely to result in a breach of peace.

  1. On 29 December 1949, a preliminary order under sub-section (1) of
    Section 145 was issued by the Additional City Magistrate, Faizabad-cumAyodhya. Simultaneously an order of attachment was also passed under the
    second proviso to sub-section (4) treating the situation to be one of emergency.
    On 5 January 1950, the receiver took charge and made an inventory of the
    attached items. Pursuant to the order of the Magistrate, only two or three pujaris
    were permitted to go inside the place where idols were kept to perform religious
    ceremonies like bhog and puja and the general public was permitted to have
    darshan only from beyond the grill-brick wall. The proceedings under Section 145
    were not judicial; the Magistrate while exercising authority under the provision
    was not empowered to deal with the substantive rights of the parties. The
    proceedings under Section 145 are not akin to a civil proceeding. Adjudication of
    substantive claims over title and ownership over a property can be decided in a
    competent civil proceeding. Proceedings under Section 145 are not in the nature
    of a trial before a civil court and are merely in the nature of police proceedings.
    The Magistrate‘s order cannot adversely impact the substantive rights of parties.
    Upon the attachment of the property and after the appointment of the receiver,
    PART M
    289
    the property became custodia legis and the receiver held the property for the
    benefit of the true owner. The receiver so appointed could not be described as a
    party interested in the dispute. By his subsequent orders dated 30 July 1953 and
    31 July 1954, the Magistrate deferred the proceedings and continued the order of
    attachment.
  2. Justice Sudhir Agarwal correctly observed that in view of the ad-interim
    injunction in Suit 1 by which status quo was ordered and sewa-puja was
    continued, the proceedings under Section 145 could not have been dropped as it
    would have disturbed the status quo. Justice Agarwal observed:
    ―2244. … From perusal of injunction order passed by the
    Civil Court, we find that on 16th January, 1950 a simple
    order, in terms of the prayer made in the interim
    injunction application, was passed directing the parties
    to maintain status quo. Thereafter on 19th January, 1950,
    the order was modified but the Civil Court did not appoint
    a Receiver of its own and also did not direct the City
    Magistrate to get the possession transferred to any other
    person or another Receiver of the Court instead of the
    Receiver appointed by the Magistrate. On the contrary, in
    Suit-1, the City Magistrate was also impleaded as one of
    the defendants and the Civil Court passed an order
    directing the defendants to maintain status quo. It also
    clarified that the Sewa, Puja as was going on, shall
    continue…the Magistrate could not have ignored this
    order by dropping the proceedings as that would have
    resulted in discharge of Receiver and release of the
    property attached and placed in his charge. In other
    words, it could have been construed by the Civil Judge
    as an order disobeying the order of status quo. Had the
    Civil Judge passed an order appointing a Court’s
    Receiver and directing the Magistrate to hand over
    possession of the property to him, the position might
    have been different. In these circumstances, if the
    Magistrate did not drop the proceedings but deferred it,
    we find no fault on his part. Moreover, when the earlier
    order of the Magistrate, attaching the property and placing it
    in the charge of Receiver, could not have resulted in giving a
    cause of action to the plaintiffs to file suit, we fail to
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    290
    understand as to how the subsequent order, which merely
    deferred the pending proceedings, would lend any help. The
    order of attachment passed by the Magistrate itself does not
    give a cause of action and on the contrary it only makes the
    things known to the party that there appears to be some
    dispute about the title and/or possession of the property
    concerned and also there is apprehension of disturbance of
    public peace and order. The cause of action virtually is known
    to the party that there exists some dispute and not the order
    of the Magistrate whereby he attached the property in
    question and placed it in the charge of the Receiver.‖
    (Emphasis supplied)
  3. In view of the settled position in law, as it emerges from the decisions of
    this Court, after the Magistrate‘s order dated 29 December 1949 for attachment
    of property, nothing prevented Nirmohi Akhara from filing a declaratory suit for
    possession and title. The Magistrate‘s order did not decide or adjudicate upon the
    contesting rights to possess or the merits of conflicting claims of any of the
    parties. Substantive rights with respect to title and possession of the property
    could have been dealt with only in civil proceedings before a civil court. The
    Magistrate did not have jurisdiction to determine questions of ownership and title.
    The proceedings under Section 145 could not have resulted in any adjudication
    upon title or possession of the rightful owner as that is within the exclusive
    domain of civil courts. Nirmohi Akhara cannot take the defence that no final order
    had been passed in Section 145 proceedings and as a result limitation did not
    commence. The Magistrate simply complied with the directions given by a civil
    court with respect to maintaining status quo in Suit 1 and accordingly, deferred
    the proceedings under Section 145.
    PART M
    291
    The case under Article 142 of the Limitation Act 1898
  4. Article 142 governs a suit for possession of immoveable property when the
    plaintiff while in possession has been dispossessed or ―has discontinued the
    possession‖. The period of limitation under Article 142 is 12 years. Time begins to
    run from the date of the dispossession or discontinuance. Nirmohi Akhara claims
    that the cause of action arose on 5 January 1950 and the suit which was
    instituted on 17 December 1959 is within the limitation of twelve years.
    The concepts of dispossession and discontinuance of possession
  5. Besides the absence of specific relief in Nirmohi‘s Suit with respect to
    seeking possession of the Janmasthan temple, there is another aspect to be
    explored with respect to the applicability of the concepts of dispossession and
    discontinuance of possession in the facts of the present case. Article 142 of the
    Limitation Act 1908 encompasses a suit for possession of immovable property. It
    covers those suits for possession of immoveable property which fall within either
    of two descriptions. The first is when the plaintiff while in possession of the
    property has been dispossessed. The second covers a situation where the
    plaintiff while in possession has discontinued the possession. In other words,
    Article 142 which deals with suits for possession of immoveable property qualifies
    this with the requirement that the plaintiff should have been in possession of the
    property when either of the two events have taken place namely, the event of
    being dispossessed or, as the case may be, the event of having discontinued the
    possession. Article 142 has not confined the description of the suit to simply a
    PART M
    292
    suit for possession of immoveable property. The provision incorporates a
    requirement of prior possession of the plaintiff and either the dispossession or the
    discontinuance of possession while the plaintiff was in possession. The period of
    limitation is 12 years and time begins to run from the date of dispossession or
    discontinuance.
  6. Article 144 is a residuary provision dealing with suits for possession of
    immoveable property or any interest in immoveable property not specifically
    provided for elsewhere. As a residuary provision, Article 144 applies to suits for
    possession of immoveable property which do not fall within a description which is
    specially enumerated in the articles of the schedule. In the case of Article 144,
    the period of limitation is 12 years and time begins to run when the possession of
    the defendant has become adverse to the plaintiff.
  7. Article 142, as seen above, incorporates two distinct concepts. The first is
    of dispossession and the second is of discontinuance of possession.
    Dispossession connotes an ouster; it involves a situation where a person is
    deprived of her/his possession with the coming of another person into
    possession. Dispossession implies deprivation of a right to possess which is not
    voluntary and involves an act of ouster which displaces the person who was in
    possession of the property. The expression ‗dispossession‘ is defined in Black‘s
    Law Dictionary151 as follows:
    ―Deprivation of, or eviction from, rightful possession of
    property; the wrongful taking or withholding of possession of
    land from the person lawfully entitled to it; ouster.‖

151Black‘s Law Dictionary, Tenth Edition at p. 572
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293
The expressions ‗discontinuance‘ and ‗dispossession‘ have been defined in P
Ramanatha Aiyar‘s Advanced Law Lexicon152:
―Discontinuance means that a person in possession goes out
and is followed into possession by another person. It implies
that all indications of occupation have been withdrawn.‖
―Dispossession or ouster is wrongfully taking possession of
land from its rightful owner. The dispossession applies only to
cases where the owner of land has, by the act of some
person, been deprived altogether of his dominion over the
land itself, or the receipt of its profits. A person cannot be
dispossessed of immoveable property unless he was
possessed thereof at the time.‖
Dispossession presupposes the pre-existing possession of the person at a given
time who was subsequently dispossessed. A person who is not in possession
cannot be said to be dispossessed. Discontinuance on the other hand, embodies
a notion of abandonment of possession and is sometimes described as a
voluntary act of the person who discontinues possession on his own accord. G W
Paton153 in his seminal treatise on ―Jurisprudence‖ notes that ―as with most
words in the English language, the word ‗possession‘ has a variety of uses and a
variety of meanings, depending upon context and use‖. The author tells us that
―the search for one appropriate, complete meaning for the word is likely to be a
fruitless one‖.
Black‘s Law Dictionary154 defines the expression ‗possession‘ thus:
―1. The fact of having or holding property in one‘s power; the
exercise of dominion over property.

  1. 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.‖

152 P Ramanantha Aiyar‘s Advanced Law Lexicon, Fifth Edition at pgs. 1537 and 1563
153 G. W. Paton and David P. Derham, A Text-book of Jurisprudence, 3rd Edition, Oxford: Clarendon Press
(1964)
154 Black‘s Law Dictionary, Tenth Edition at page 1351
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294
In Supdt and Remembrancer of Legal Affairs West Bengal v Anil Kumar
Bhunja155, this Court observed that ―possession is a polymorphous term‖ and,
therefore, it was not possible to ascribe a meaning which would apply in every
context. Drawing sustenance from Salmond‘s Jurisprudence, the Court noted that
possession implies a right and a fact; the right to enjoy annexed to the right to
property and the fact of the real intention. Possession as a concept comprehends
―corpus possessionis and animus possidendi‖. The former embraces the power to
use the thing in possession and the existence of a ground of expectation that the
use of the possession shall not be interfered with. The latter postulates the intent
to appropriate to oneself the exclusive use of the thing which is possessed.

  1. In Shyam Sunder Prasad v Raj Pal Singh156, this Court speaking through
    a Bench of three judges elaborated on the distinction between Articles 142 and
    144 of the Limitation Act 1908. The Court observed:
    ―3…Under the old Limitation Act, all suits for possession
    whether based on title or on the ground of previous
    possession were governed by Article 142 wherein the plaintiff
    while in possession was dispossessed or discontinued in
    possession. Where the case was not one of dispossession of
    the plaintiff or discontinuance of possession by him, Article
    142 did not apply. Suits based on title alone and not on
    possession or discontinuance of possession were governed
    by Article 144 unless they were specifically provided for by
    some other articles. Therefore, for application of Article 142,
    the suit is not only on the basis of title but also for
    possession.‖
  2. In order to bring the suit within the purview of Article 142, the following
    requirements must be fulfilled:
    (i) The suit must be for possession of immoveable property;

155 (1979) 4 SCC 274
156 (1995) 1 SCC 311
PART M
295
(ii) The plaintiff must establish having been in possession of the property; and
(iii) The plaintiff should have been dispossessed or must have discontinued
possession while in possession of the property.
For Article 142 to apply, these requirements must cumulatively be established.

  1. The Suit by Nirmohi Akhara postulates that the Janmasthan, commonly
    known as Janmabhumi, which is the birth-place of Lord Ram ―belongs and has
    always belonged‖ to Nirmohi Akhara which has been ―managing it and receiving
    offerings‖. According to the plaintiffs, the temple has ever since been in the
    possession of Nirmohi Akhara. The grievance in the Suit is that the plaintiffs were
    wrongfully deprived of their management and charge of the temple as a result of
    the order of attachment under Section 145 and the proceedings have been
    unduly prolonged by the Magistrate with the connivance to the Muslim parties.
    Nirmohi Akhara prays for the removal of the receiver from management and
    charge and for delivering it to the plaintiffs. Essentially, it is on the basis of the
    expressions ―belongs‖ in paragraph 2 and ―possession‖ in paragraph 4 of the
    pleadings that Nirmohi Akhara has sought to bring the suit within the purview of
    Article 142 (and hence, outside the purview of residuary Article 120).
  2. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the
    Sunni Central Waqf Board, has made a painstaking effort to demonstrate how a
    careful attempt has been made on behalf of Nirmohi Akhara to travel beyond the
    pleadings and more specifically the relief which has been claimed in the suit by
    seeking to expand the scope of the suit in the written submissions.
    PART M
    296
  3. In our view, it would be instructive having set out the ambit of Suit 3, to
    demonstrate how the written submissions attempt (through the craft of Counsel)
    to change the nature of the suit in order to bring it within limitation. As a matter of
    first principle, the plaint must be read as a whole. However, this is quite distinct
    from permitting the plaintiff to a suit to alter its nature on the basis of written
    submissions in appeal. Any alteration in the content of a plaint can only take
    place by an amendment under Order VI Rule 17 of the CPC. Instead, as we shall
    see, an ingenious effort has been made to gloss over the contents of the suit in
    the written submissions. This is impermissible. Mr S K Jain, learned Senior
    Counsel appearing on behalf of the plaintiff in Suit 3, made the following
    submission in paragraph 13(d) of his written submissions:
    ―(d) The plaintiff – Nirmohi Akhara was not only claiming
    ownership and possession of the property i.e. the Main
    Temple or the Inner Courtyard but was also claiming to be the
    Manager (Shebiat) of ―Janma Asthan‖ as well as the idols of
    Lord Ram Chandra, Laxmanji, Hanumanji and Saligramji.‖
    (Emphasis supplied)
    In paragraph 17(j) of the written submissions, it has been urged:
    ―(j) Since the property was attached and placed under a
    receiver, it is incumbent for the court to decide and
    adjudicate the issue of title and the suits cannot be
    dismissed as barred by limitation. The property must revert to
    the rightful owner and cannot remain custodia legis for time
    ad-infinitum. Hence in a suit for restoration of possession
    from a receiver, the question of limitation can never arise and
    such suits cannot (sic) never become barred by limitation so
    long as such property continues to be under a receiver at
    least of a person from whom possession was taken.‖
    (Emphasis supplied)
    Again, in paragraph 18(k), it has been stated:
    ―(k). Since the property is under the control of the receiver, a
    suit for mesne profits for incomes derived by the receiver can
    still be filed by the true owner and in such a suit, for which
    PART M
    297
    cause of action arises any benefit accrues would thus give
    rise to a continuous cause of action. While determining the
    issue of entitlement of mesne profits, the question of title
    will have to be adjudicated and upon adjudication
    possession will have to be delivered by the receiver to the
    true owner.
    (i) Ellappa Naicken vs Lakshmana Naicken AIR 1949
    Madras 71
    (ii) Rajab of Venkatagiri v. Isakapalli Subbiah, ILR 26
    Madras 410.‖ (Emphasis supplied)
    Then, in paragraph 18(m), it has been stated:
    ―(m) The plaintiff – Nirmohi Akhara was not only claiming
    ownership and possession of the property i.e. the Main
    Temple or the Inner Courtyard but was also claiming to
    the Manager (Shebiat) of ―Janma Asthan‘ as well as the idols
    of Lord Ram Chandra, Laxmanji, Hanumanji and Sabgramji. It
    is stated for the reasons which found favour with the court to
    hold that the suit OOS No. 5 of 1989 is within limitation that the
    deity was a perpetual minor, the suit of the plaintiff Nirmohi
    Akhara cannot also be held to be barred by limitation.‖
    (Emphasis supplied)

Finally, it has been stated in paragraph 18 that:
―18. The claim of the property ―belonging‖ to the plaintiff in the
plaint is based on two-fold submissions – (i) that the property
belongs to the plaintiff in the capacity of manager/shebait;
and (ii) that the Plaintiff being in possession acquires
possessory title in view of Section 110 Evidence Act and
is entitled to be and continue in possession unless the
defendant can show a better title than the Plaintiff.‖
(Emphasis supplied)
This is completely at variance with the pleadigns in the suit.

  1. The expression ―belonging to‖ is not a term of art and its content varies
    according to context. In Raja Mohammad Amir Ahmad Khan v Municipal
    PART M
    298
    Board of Sitapur157
    , a three judge Bench of this Court considered whether the
    use of the expression ―belonging to him‖ by a tenant amounted to a disclaimer of
    the reversionary interest of the Government. In that context, Justice N
    Rajagopala Ayyangar, speaking for the three judge Bench, observed:
    ―24…Though the word ―belonging‖ no doubt is capable of
    denoting an absolute title, is nevertheless not confined to
    connoting that sense. Even possession of an interest less
    than that of full ownership could signified by that word. In
    Webster ―belong to‖ is explained as meaning inter alia ―to be
    owned by, be the possession of‖. The precise sense which
    the word was meant to convey can therefore be gathered only
    by reading the document as a whole and adverting to the
    context in which it occurs.‖
    On the facts of the case, it was held that the circumstances of the tenancy were
    material for determining the nature of the assertion. The origin of the tenancy was
    not definitely known, the lessee had constructed super structures and the
    appellant and his ancestors had been enjoying the property for three quarters of
    a century and more. Transfers had been affected and the property had been the
    subject of inheritance. There was a public document to the effect that though it
    was government land, there was a permanent heritable and transferable right. In
    this context, it was held that use of the word ―belonging‖ did not amount to
    repudiation of the title of the government. Similarly, the Court held that the use of
    the expression owner did not denote ownership in an absolute sense so as to
    amount to a renunciation or disclaimer of tenancy:
    ―25…Though divorced from the context these words are
    capable of being construed as an assertion of absolute
    ownership, they cannot, in our opinion, in the setting in which
    they occur and bearing in mind the history of the enjoyment
    by the appellant and his predecessors of this property, be
    deemed an assertion unequivocal in nature of absolute

157 AIR 1965 SC 1923
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299
ownership sufficient to entail a forfeiture of a permanent
tenancy of this nature. In this connection it might be noticed
that this enjoyment is stated to be with the consent of the
Government. If the assertion were understood to be as an
absolute owner in derogation of the rights of the Government
as landlord, the reference to the consent of Government to
such an enjoyment would be wholly inappropriate. Consent
would have relevance only if the Government had interest in
the property and we, therefore, understand the passage to
mean that the permanent, transferable and heritable,
particularly the right to transfer which was being denied by the
municipality, was stated to have been enjoyed with the
consent of the Government. That is an additional reason for
our holding that at the worst the assertion was not
unequivocal as to entail a forfeiture of the tenancy.‖

  1. In Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth
    Tax158
    , a two judge Bench of this Court construed the expression ―belonging to
    the assessee on the valuation date‖ in Section 2(m) of the Wealth Tax Act 1957.
    In the context of the statutory provision which was being interpreted, this Court
    held that mere possession without a legal right would not bring the property within
    the meaning of the expression ―net-wealth‖ for it would not be an asset which
    belongs to the assessee. The Court adverted to the decision in Raja Mohammad
    noting that though the phrase ―belonging to‖ was capable of denoting an absolute
    title, it was nevertheless not confined to connoting that sense. In the case at
    hand, the Court held:
    ―29…We have discussed the cases where the distinction
    between ―belonging to‖ and ―ownership‖ has been
    considered. The following facts emerge here: (1) the
    assessee has parted with the possession which is one of the
    essentials of ownership. (2) The assessee was disentitled to
    recover possession from the vendee and the assessee alone
    until the document of title is executed was entitled to sue for
    possession against others i.e. other than the vendee in
    possession in this case. The title in rem vested in the
    assessee. (3) The vendee was in rightful possession against

158 1986 Supp SCC 700
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the vendor. (4) The legal title, however, belonged to the
vendor. (5) The assessee had not the totality of the rights that
constitute title but a mere husk of it and a very important
element of the husk.‖
Both these decisions, which have been pressed in aid by Dr Dhavan indicate that
the expression ‗belonging to‘ must receive a meaning based on context. In a
given context, the words may convey the meaning of an absolute title but in other
factual situations the words may convey something which falls short of an
absolute interest.

  1. In the present case, it is evident that the use of the expression ‗belongs‘ by
    the Nirmohi Akhara in the plaint has been deployed only in the context of
    management and charge. The entire case of Nirmohi Akhara is of the deprivation
    of its shebaiti rights by the Magistrate‘s order under Section 145. The claim of
    Nirmohi Akhara is against the state so as to enable the plaintiff to utilise the
    usufruct to render services to the deity. Nirmohi Akhara, in other words, claims
    ancillary rights with reference to management and charge. Indeed, the most
    significant aspect which emerges from the relief which has been claimed in Suit 3
    is a decree for the removal of the first defendant ―from the management and
    charge of the said temple of Janmabhumi and for delivering the same to the
    plaintiff‖. Suit 3 filed by Nirmohi Akhara is therefore not a suit for possession
    which falls within the meaning and ambit of Article 142.
  2. Nirmohi Akhara has instituted Suit 3 claiming to be a shebait. A four judge
    Bench of this Court in Angurbala Mullick v Debabrata Mullick159 dealt with the

1591951 SCR 1125
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nature and position of a shebait. Justice B K Mukherjea (as he then was)
speaking for the Court held that the position of a shebait in regard to the debutter
property does not exactly correspond to that of a trustee in English law. In
English law, the legal estate in trust property vests in the trustee. On the other
hand, in the case of a Hindu religious endowment, the ownership of the dedicated
property is transferred to the deity or institution as a juristic person and the
shebait is a mere manager who handles the affairs with respect to the deity‘s
properties. Referring to the extract from the Privy Council‘s decision in Vidya
Varuthi Thirtha v Balusami Ayyar160
, this Court observed that though, the
shebait is a manager and not a trustee, shebaitship is not a ‗mere office‘:
―12…The shebait has not only duties to discharge in
connection with the endowment, but he has a beneficial
interest in the debutter property. As the Judicial Committee
observed in the above case, in almost all such endowments
the shebait has a share in the usufruct of the debutter
property which depends upon the terms of the grant or upon
custom or usage. Even where no emoluments are attached to
the office of the shebait, he enjoys some sort of right or
interest in the endowed property which partially at least has
the character of a proprietary right. Thus, in the conception
of shebaiti both the elements of office and property, of duties
and personal interest, are mixed up and blended together;
and one of the elements cannot be detached from the other. It
is the presence of this personal or beneficial interest in the
endowed property which invests shebaitship with the
character of proprietary rights and attaches to it the legal
incidents of property.‖

  1. A Constitution Bench of this Court speaking through Chief Justice B K
    Mukherjea in Commissioner, Hindu Religious Endowments Madras v Sri
    Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt161, construed the position of

160 AIR 1922 PC 123
161 1954 SCR 1005
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302
a Matadhipati. Adverting to the earlier decision in Angurbala Mullick, this Court
held that as in the case of a shebait so also in a case involving a mahant, both
elements of office and property are blended together:
―11. As regards the property rights of a Mathadhipati, it may
not be possible to say in view of the pronouncements of the
Judicial Committee, which have been accepted as good law
in this country ever since 1921, that a Mathadhipati holds the
Math property as a life tenant or that his position is similar to
that of a Hindu widow in respect to her husband’s estate or of
an English Bishop holding a benefice. He is certainly not a
trustee in the strict sense. He may be, as the Privy Council [
Vide Vidya Varuthi v. Balusami, 48 IA 302] says, a manager
or custodian of the institution who has to discharge the duties
of a trustee and is answerable as such; but he is not a mere
manager and it would not be right to describe Mahantship as
a mere office. A superior of a Math has not only duties to
discharge in connection with the endowment but he has a
personal interest of a beneficial character which is sanctioned
by custom and is much larger than that of a Shebait in the
debutter property. It was held by a Full Bench of the Calcutta
High Court [ Vide Monahar v. Bhupendra, 60 Cal 452] that
Shebaitship itself is property, and this decision was approved
of by the Judicial Committee in Ganesh v. Lal Behary [63 IA
448] and again in Bhabatarini v. Ashalata [70 IA 57]. The
effect of the first two decisions, as the Privy Council pointed
out in the last case, was to emphasise the proprietary
element in the Shebaiti right and to show that though in some
respects an anomaly, it was an anomaly to be accepted as
having been admitted into Hindu law from an early date. This
view was adopted in its entirety by this Court
in Angurbala v. Debabrata [1951 SCR 1125] and what was
said in that case in respect to Shebaiti right could, with equal
propriety, be applied to the office of a Mahant. Thus, in the
conception of Mahantship, as in Shebaitship, both the
elements of office and property, of duties and personal
interest are blended together and neither can be detached
from the other. The personal or beneficial interest of the
Mahant in the endowments attached to an institution is
manifested in his large powers of disposal and administration
and his right to create derivative tenures in respect to
endowed properties; and these and other rights of a similar
character invest the office of the Mahant with the character of
proprietary right which, though anomalous to some extent, is
still a genuine legal right. It is true that the Mahantship is not
heritable like ordinary property, but that is because of its
peculiar nature and the fact that the office is generally held by
an ascetic, whose connection with his natural family being
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303
completely cut off, the ordinary rules of succession do not
apply.‖
The claim of Nirmohi Akhara for management and charge therefore rests on its
assertion of being a shebait. In the case of a shebait as the above decisions
authoritatively explained, the elements of office and of a proprietary interest are
blended together. The Suit by Nirmohi Akhara was a suit for restoration of
management and charge so as to enable the Akhara to have the benefit of the
usufruct in the discharge of its obligations towards the deity. The suit was
therefore not a suit for possession within the meaning of Article 142. Despite the
ingenuity of counsel in seeking to expand the nature and ambit of the suit, we are
categorically of the view that written submissions filed in the appeal cannot be a
valid basis to reconfigure the nature of the suit. The suit has to be read on the
basis of the original plaint in the trial court. Despite the amendment to the plaint in
Suit 3, the relief as it stands does not bring it within the ambit of Article 142. It
may also be noted at this stage that during the course of the submissions, Mr S K
Jain, clarified that Nirmohi Akhara by using the expression ―belongs to‖ is not
claiming title or ownership to the property. The Suit by Nirmohi Akhara is not a
suit for possession. Hence, neither Article 142 nor Article 144 has any
application.

  1. In Ramiah v N Narayana Reddy162, a two judge Bench of this Court
    elaborated on the distinction between Articles 142 and 144 of the Limitation Act
    1908 (corresponding to Articles 64 and 65 of the Limitation Act 1963) thus:
    ―9…Article 64 of the Limitation Act, 1963 (Article 142 of the
    Limitation Act, 1908) is restricted to suits for possession on

162 (2004) 7 SCC 541
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304
dispossession or discontinuance of possession. In order to
bring a suit within the purview of that article, it must be shown
that the suit is in terms as well as in substance based on the
allegation of the plaintiff having been in possession and
having subsequently lost the possession either by
dispossession or by discontinuance. Article 65 of the
Limitation Act, 1963 (Article 144 of the Limitation Act, 1908),
on the other hand, is a residuary article applying to suits for
possession not otherwise provided for. Suits based on the
plaintiff’s title in which there is no allegation of prior
possession and subsequent dispossession alone can fall
within Article 65. The question whether the article of limitation
applicable to a particular suit is Article 64 or Article 65, has to
be decided by reference to pleadings.‖
There is a fundamental reason why the Suit instituted by Nirmohi Akhara is not
maintainable, quite apart from the bar of limitation. Nirmohi Akhara sought a relief
simpliciter of the handing over of management and charge of the Janmasthan by
the receiver to it. The receiver was appointed by the Magistrate in the
proceedings under Section 145. The Magistrate who attached the property holds
it for the true owner who obtains an adjudication of rights before the court of
competent jurisdiction. Nirmohi Akhara sought no declaration of its status or
rights. It merely sought a decree against a Magistrate for the handing over of
management and charge. It had to seek relief against someone interested in
opposing its claim and by getting its own right adjudicated. Instead, without doing
so, it merely sought a decree for the handing over of management and charge
against the Magistrate. Such a suit was indeed not maintainable.

  1. Once it has been held that neither Article 47 nor Article 142 is attracted,
    Suit 3 filed by Nirmohi Akhara is governed by the provisions of Article 120, the
    residuary article in the Limitation Act 1908. The period of limitation under Article
    120 is six years. Nirmohi Akhara claims that the cause of action arose on 5
    PART M
    305
    January 1950. The suit was instituted on 17 December 1959. Hence, the suit is
    outside the prescribed period of limitation and is barred.
    Continuing wrong
  2. The alternate submission which has been urged on behalf of the Nirmohi
    Akhara by Mr S K Jain is based on the provisions of Section 23 of the Limitation
    Act 1908. It is submitted that the denial or obstruction of Nirmohi Akhara‘s
    ‗absolute‘ shebait rights of management and charge is a continuing wrong and by
    virtue of Section 23, a fresh cause of action arose every day. Section 23 reads as
    follows:
    ―23. Continuing breaches and wrongs. – In the case of a
    continuing breach of contract and in the case of a continuing
    wrong independent of contract, a fresh period of limitation
    begins to run at every moment of the time during which the
    breach or the wrong, as the case may be, continues.‖
  3. The contention of Mr S K Jain is that upon the order of attachment, the
    charge and management, along with property related rights of the Janmasthan
    temple have been taken over and are the subject matter of Suit 3. This, it is
    urged, constitutes a continuing wrong so long as they are not restored. In this
    context, reliance has been placed on the decision of the Privy Council in Sir Seth
    Hukum Chand v Maharaj Bahadur Singh163
    , in support of the submission that
    obstruction of prayer and worship is a continuing wrong. The submission is that
    the obstruction of the plaintiffs‘ right to manage the bhog and prayers
    independently, as a result of the appointment of a receiver is a continuing wrong
    within the meaning of Section 23 and hence, every act of obstruction provides a

163 (1933) 38 LW 306 (PC)
PART M
306
fresh cause of action and a fresh starting point for limitation.

  1. The decision in Hukum Chand, involved a contest between the
    Swetambari and Digambari Jain sects over the right of worship of Parasnath hill.
    The Swetambaris acquired the proprietary rights of the Raja of Palgunj in the hill
    by purchase. They commenced the construction of dwellings for watchmen on
    the top of the hill and for other temple employees, besides constructing
    dharamsalas. This was objected to by the Digambaris who instituted a suit
    against the Swetambaris claiming that the entire hill was sacred. There were
    Charans in the old shrines containing impressions of the footprints of saints,
    bearing a lotus mark. The Swetambaris evolved another form of Charan which
    was opposed by the Digambaris who refused to worship it as being a
    representation of a detached part of the human body. Both the lower courts held
    that the action of placing the Charans in the shrines was wrong in respect of
    which the Digambaris were entitled to complain. One of the questions which
    arose before the Privy Council was in regard to the finding of the Subordinate
    judge that the suit brought by the Digambaris was within limitation. In that
    context, Sir John Wallis delivering the judgment of the Privy Council held:
    ―As regards limitation the Subordinate Judge held on rather
    insufficient grounds that the acts complained of took place
    within six years of suit so that this part of the claim could not
    be barred by Article 120, but he also held that it could not be
    barred under that article as it was a continuing wrong, as to
    which under section 23 of the Limitation Act a fresh period
    begins to run at every moment of the day on which the wrong
    continues. The High Court on the other hand were of opinion
    that it was not a continuing wrong and that the claim was
    barred under article 120. In their Lordships’ opinion the
    Subordinate Judge was right in holding that the acts
    complained of were a continuing wrong and consequently that
    this part of the claim is not barred. This question is covered
    PART M
    307
    by the decision of this Board in Rajrup Koer v. Abul
    Hossein [(1880) I.L.R. 6 Cal. 394 : L.R. 7 I.A. 240.] , of
    diverting an artificial water course and cutting off the watersupply of the plaintiff’s lower lying lands.‖
  2. The above extract has been relied upon in support of the submission that a
    deprivation of the right to worship is a continuing wrong. Significantly, the Privy
    Council relied upon its earlier decision in Maharani Rajroop Koer v Syed Abul
    Hossein164 which involved an asserted right to an artificial water-course by
    cutting of the water supply of the lands belonging to the plaintiffs. In Maharani
    Rajroop Koer, the Privy Council held, speaking through Sir Montague E Smith,
    that obstructions which interfered with the flow of water to the plaintiff were in the
    nature of continuing nuisances:
    ―If the Judges really meant to apply the limitation of Article 34
    above referred to, their decision is clearly wrong; for the
    obstructions which interfered with the flow of water to the
    Plaintiff’s mehal were in the nature of continuing nuisances,
    as to which the cause of action was renewed de die in
    diem so long as the obstructions causing such interference
    were allowed to continue. Indeed, sect. 24 of the statute
    contains express provision to that effect.‖
  3. The notion of what constitutes a continuing wrong has evolved through the
    decisions of this Court, depending on the factual context involved in each case.
    The decision of two judges in State of Bihar v Deokaran Nenshi165, dealt with
    the provisions of Sections 66 and 79 of the Mines Act 1952. Section 66 provides
    a penalty for an omission to file a return which may extend to Rs. 1000/-.
    However, Section 79 stipulates that no court shall take cognizance of any offence
    unless a complaint is filed within six months from the date of the alleged

164(1879-80) 7 IA 240
165 (1972) 2 SCC 890
PART M
308
commission of offence or within six months from the date on which the alleged
commission of offence came to the knowledge of the inspector, whichever is
later. However, the explanation stipulates that if the offence is a continuing
offence, the limitation shall be computed with reference to every point of time
during which the offence continued. Under regulation 3, annual returns in the
preceding year were required to be filed on or before the twenty-first day of
January each year. Dealing with the question of limitation, this Court considered
whether an offence involving a failure to file a return is covered by the substantive
part of Section 79 (in which case the complaint was time barred) or by the
explanation, involving a continuing offence. Justice J M Shelat, speaking for the
Bench observed:
―5. A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is
committed once and for all. It is one of those offences which
arises out of a failure to obey or comply with a rule or its
requirement and which involves a penalty, the liability for
which continues until the rule or its requirement is obeyed or
complied with. On every occasion that such disobedience or
non-compliance occurs and reoccurs, there is the offence
committed. The distinction between the two kinds of offences
is between an act or omission which constitutes an offence
once and for all and an act or omission which continues, and
therefore, constitutes a fresh offence every time or occasion
on which it continues.‖

The Court held that the infringement occurred upon the failure to file annual
returns on or before January 21 of the relevant year and was complete on the
owner failing to furnish the annual returns by that day. The Court held that the
provision does not stipulate that the owner or manager would be guilty if he
continues to carry on the mine without furnishing the returns or that the offence
continues until the requirement of regulation 3 is complied with. In other words:
PART M
309
―9…As in the case of a construction of a wall in violation of a
rule of a bye-law of a local body, the offence would be
complete once and for all as soon as such construction is
made, a default occurs in furnishing the returns by the
prescribed date.‖

  1. Another decision of a two judge of this Court in Commissioner of Wealth
    Tax, Amritsar v Suresh Seth166
    , was based on the provisions of the Wealth Tax
    Act. Section 18(1)(a) provided for the levy of a penalty for failure to file a return of
    net-wealth without reasonable cause. The issue before this Court was whether
    the default in filing a return amounts to a continuing wrong. Justice E S
    Venkataramiah (as the learned Chief Justice then was) speaking for this Court
    held:
    ―11. A liability in law ordinarily arises out of an act of
    commission or an act of omission. When a person does an
    act, which law prohibits him from doing it and attaches a
    penalty for doing it, he is stated to have committed an act of
    commission which amounts to a wrong in the eye of law.
    Similarly, when a person omits to do an act which is required
    by law to be performed by him and attaches a penalty for
    such omission, he is said to have committed an act of
    omission which is also a wrong in the eye of law. Ordinarily a
    wrongful act or failure to perform an act required by law to be
    done becomes a completed act of commission or of omission,
    as the case may be, as soon as the wrongful act is committed
    in the former case and when the time prescribed by law to
    perform an act expires in the latter case and the liability
    arising therefrom gets fastened as soon as the act of
    commission or of omission is completed.‖

This Court made a distinction between a continuing wrong and a wrong or default
which is complete when it is committed in the following observations:
―11…The distinctive nature of a continuing wrong is that the
law that is violated makes the wrongdoer continuously liable
for penalty. A wrong or default which is complete but whose
effect may continue to be felt even after its completion is,
however, not a continuing wrong or default.‖

166 (1981) 2 SCC 790
PART M
310
Dealing with the provisions of the statute, this Court held that the default is only
one which takes place on the expiry of the last date of filing a return and is not a
continuing wrong. Consequently, the default does not give rise to a fresh cause of
action every day. Indicating in the following passage illustrations of continuing
wrongs, the Court held:
―17. The true principle appears to be that where the wrong
complained of is the omission to perform a positive duty
requiring a person to do a certain act the test to determine
whether such a wrong is a continuing one is whether the duty
in question is one which requires him to continue to do that
act. Breach of a covenant to keep the premises in good
repair, breach of a continuing guarantee, obstruction to a right
of way, obstruction to the right of a person to the
unobstructed flow of water, refusal by a man to maintain his
wife and children whom he is bound to maintain under law
and the carrying on of mining operations or the running of a
factory without complying with the measures intended for the
safety and well-being of workmen may be illustrations of
continuing breaches or wrongs giving rise to civil or criminal
liability, as the case may be, de die in diem.‖

In the view of this Court, non-performance of any of the acts mentioned in
Section 18(1)(a) gives rise to a single breach and to a single penalty, the
measure of which however relates to the time lag between the last date on which
the return has to be filed and the date on which it is actually filed.

  1. The provisions of another revenue statute, the Income Tax Act 1961 came
    up for consideration before a three judge Bench of this Court in Maya Rani Punj
    v CIT167. In this case, Section 271(1)(a) of the Income Tax Act 1961 entailed
    imposing a penalty for filing late returns. The penalty was imposable not only for
    the first default but as long as the default continued. The assessee filed its return

167 (1986) 1 SCC 445
PART M
311
more than seven months after the due date. The three judge Bench disapproved
of the decision in Suresh Seth. Justice Sabyasachi Mukherji (as the learned
Chief Justice then was) held that the default continued so long as a return was
not filed and was hence a continuing wrong:
―19. The imposition of penalty not confined to the first default
but with reference to the continued default is obviously on the
footing that non-compliance with the obligation of making a
return is an infraction as long as the default continued.
Without sanction of law no penalty is imposable with
reference to the defaulting conduct. The position that penalty
is imposable not only for the first default but as long as the
default continues and such penalty is to be calculated at a
prescribed rate on monthly basis is indicative of the legislative
intention in unmistakable terms that as long as the assessee
does not comply with the requirements of law he continues to
be guilty of the infraction and exposes himself to the penalty
provided by law.‖

  1. The application of the principle of continuing wrong in the context of
    service jurisprudence came up before a two judge Bench of this Court in Union
    of India v Tarsem Singh168. In that case, the respondent was invalidated out of
    the Indian Army on medical grounds in November 1983. He approached the High
    Court in 1999 seeking disability pension. The High Court issued a mandamus for
    the payment of disability pension but restricted it to a period of 38 months prior to
    the institution of the writ petition. The claim of the respondent however was that
    disability pension should be granted with effect from November 1983 which was
    allowed by the Division Bench of the High Court in a Letters Patent Appeal. In a
    challenge before this Court to the above decision of the Division Bench of the
    High Court, Justice R V Raveendran, speaking for the two judge Bench,
    observed that to the principle that a belated service claim is liable to be rejected

168 (2008) 8 SCC 648
PART M
312
on the ground of delay and laches, there is a settled exception in relation to a
continuing wrong. However, there is a further exception to the exception where
the grievance is in respect of a decision which is liable to affect others in the
service prejudicially. This Court held:
―7. To summarise, normally, a belated service-related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service-related claim
is based on a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. But
there is an exception to the exception. If the grievance is in
respect of any order or administrative decision which related
to or affected several others also, and if the reopening of the
issue would affect the settled rights of third parties, then the
claim will not be entertained. For example, if the issue relates
to payment or re-fixation of pay or pension, relief may be
granted in spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to seniority or
promotion, etc., affecting others, delay would render the claim
stale and doctrine of laches/limitation will be applied. Insofar
as the consequential relief of recovery of arrears for a past
period is concerned, the principles relating to
recurring/successive wrongs will apply.‖

The High Court in appeal was held not to be justified in directing the payment of
arrears for the payment beyond three years before the institution of the writ
petition.

  1. Many of the above judgments have adverted to a three judge Bench
    decision in Balakrishna Savalram Pujari Waghmare v Shree Dhyaneshwar
    Maharaj Sansthan169
    . The appellants claimed rights of hereditary worshippers in

1691959 Supp (2) SCR 476
PART M
313
a religious institution and that their ancestors were in possession of a temple and
in the management of its affairs including the worship of a shrine. The trustees
dismissed some pujaris for misconduct. Meantime, in 1922, the pujaris obtained
forcible possession of the temple. The trustees instituted a suit which resulted in
a decree. Possession of the temple was recovered in execution of the decree.
Later, the pujaris instituted a suit claiming hereditary rights under the religious
institution. In an appeal arising from the decree in the suit, the High Court held
that Article 120 of the Limitation Act applied, and the suit had been initiated
beyond the period of six years prescribed by the article. In appeal before this
Court, it was urged that the suit was not barred under Article 120 because
Section 23 of the Limitation Act applied, the conduct of the trustees being a
continuing wrong. While considering the argument, Justice PB Gajendragadkar
(as the learned Chief Justice then was) held:
―31… In dealing with this argument it is necessary to bear in
mind that Section 23 refers not to a continuing right but to a
continuing wrong. It is the very essence of a continuing wrong
that it is an act which creates a continuing source of injury and
renders the doer of the act responsible and liable for the
continuance of the said injury. If the wrongful act causes an
injury which is complete, there is no continuing wrong even
though the damage resulting from the act may continue. If,
however, a wrongful act is of such a character that the injury
caused by it itself continues, then the act constitutes a
continuing wrong. In this connection it is necessary to draw a
distinction between the injury caused by the wrongful act and
what may be described as the effect of the said injury. It is only
in regard to acts which can be properly characterised as
continuing wrongs that Section 23 can be invoked.‖

  1. This Court held that the act of the trustees in discontinuing the alleged
    rights of the appellants as hereditary worshippers and in claiming and obtaining
    possession from them in the suit in 1922 could not held to be a continuing wrong.
    PART M
    314
    The Court held that the decree obtained by the trustees, had effectively and
    completely injured the rights of the appellants though the damage may have
    subsequently continued. Upon the execution of the decree, the rights of the
    appellants were completely injured and though their dispossession continued, it
    was held not to constitute a continuing wrong. In that context, the Court noted:
    ―We think there can be no doubt that where the wrongful act
    complained of amounts to ouster, the resulting injury to the
    right is complete at the date of the ouster and so there would
    be no scope for the application of Section 23 in such a case.
    That is the view which the High Court has taken and we see
    no reason to differ from it.‖
    This Court distinguished the decision of the Privy Council in Maharani Rajroop
    Koer v Syed Abul Hossein170 on the ground that it was a case where a
    continuing obstruction caused to the flow of water was held to be in the nature of
    continuing nuisances. Similarly, the decision in Sir Seth Hukum Chand v
    Maharaj Bahadur Singh171 relied on the earlier decision in Maharani Rajroop
    Koer. Distinguishing the decision, this Court held that the action which was
    impugned did not amount to ouster or complete dispossession of the plaintiffs.
  2. A continuing wrong, as this Court held in Balakrishna Savalram is an act
    which creates a continuing source of injury. This makes the doer of the act liable
    for the continuance of the injury. However, where a wrongful act amounts to an
    ouster, as in the present case, the resulting injury is complete on the date of the
    ouster itself. A wrong or default as a result of which the injury is complete is not a
    continuing wrong or default even though its effect continues to be felt despite its
    completion.

170 (1879-80) 7 IA 240
171 (1933) 38 LW 306 (PC)
PART M
315

  1. The submission of Nirmohi Akhara is based on the principle of continuing
    wrong as a defence to a plea of limitation. In assessing the submission, a
    distinction must be made between the source of a legal injury and the effect of
    the injury. The source of a legal injury is founded in a breach of an obligation. A
    continuing wrong arises where there is an obligation imposed by law, agreement
    or otherwise to continue to act or to desist from acting in a particular manner. The
    breach of such an obligation extends beyond a single completed act or omission.
    The breach is of a continuing nature, giving rise to a legal injury which assumes
    the nature of a continuing wrong. For a continuing wrong to arise, there must in
    the first place be a wrong which is actionable because in the absence of a wrong,
    there can be no continuing wrong. It is when there is a wrong that a further line of
    enquiry of whether there is a continuing wrong would arise. Without a wrong
    there cannot be a continuing wrong. A wrong postulates a breach of an obligation
    imposed on an individual, where positive or negative, to act or desist from acting
    in a particular manner. The obligation on one individual finds a corresponding
    reflection of a right which inheres in another. A continuing wrong postulates a
    breach of a continuing duty or a breach of an obligation which is of a continuing
    nature. This indeed was the basis on which the three judge Bench in Maya Rani
    Punj approved the statement in a decision of the Calcutta High Court in the
    following terms:
    ―In G.D. Bhattar v. State [AIR 1957 Cal 483 : 61 CWN 660 :
    1957 Cri LJ 834] it was pointed out that a continuing offence
    or a continuing wrong is after all a continuing breach of the
    duty which itself is continuing. If a duty continues from day to
    day, the non-performance of that duty from day to day is a
    continuing wrong.‖
    PART M
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    Hence, in evaluating whether there is a continuing wrong within the meaning of
    Section 23, the mere fact that the effect of the injury caused has continued is not
    sufficient to constitute it as a continuing wrong. For instance, when the wrong is
    complete as a result of the act or omission which is complained of, no continuing
    wrong arises even though the effect or damage that is sustained may enure in
    the future. What makes a wrong, a wrong of a continuing nature is the breach of
    a duty which has not ceased but which continues to subsist. The breach of such
    a duty creates a continuing wrong and hence a defence to a plea of limitation.
  2. In the present case, there are several difficulties in accepting the
    submission of Nirmohi Akhara that there was a continuing wrong. First and
    foremost, the purpose and object of the order of the Magistrate under Section
    145 is to prevent a breach of peace by securing possession, as the Magistrate
    finds, on the date of the order. The Magistrate does not adjudicate upon rights
    nor does the proceeding culminate into a decision on a question of title. The
    order of the Magistrate is subordinate to the decree or order of a civil court.
    Hence, to postulate that the order of the Magistrate would give rise to a wrong
    and consequently to a continuing wrong is inherently fallacious. Secondly, would
    the surreptitious installation of the idols on the night between 22 and 23
    December 1949 create a right in favour of Nirmohi Akhara? Nirmohi Akhara
    denies the incident completely. The right which Nirmohi Akhara has to assert
    cannot be founded on such basis and if there is no right, there can be no
    corresponding wrong which can furnish the foundation of a continuing wrong.
    There was no right inhering in Nirmohi Akhara which was disturbed by the order
    of the Magistrate. The claim of Nirmohi Akhara was in the capacity of a shebait to
    PART M
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    secure management and charge of the inner courtyard. Nirmohi Akhara has itself
    pleaded that the cause of action for the suit arose on 5 January 1950. Proceeding
    on the basis of this assertion, it is evident that the ouster which the Akhara
    asserts from its role as a shebait had taken place and hence, there was no
    question of the principle of continuing wrong being attracted.
  3. The decision of the Madras High Court in Ellappa Naicken v K
    Lakshmana Naicken172 is of no assistance to the Nirmohi Akhara. That was a
    case where during the pendency of the proceedings under Section 145, the
    Magistrate had passed an order under Section 146 for the appointment of a
    receiver as the court was unable to satisfy itself as to which of the parties was in
    possession. The respondents had filed a suit for a declaration of title and
    possession which was dismissed in default and an application to set aside the
    order under Order IX of Rule 9 of the CPC was also dismissed. An appeal from
    the order was also dismissed. Thereafter the petitioner who was the defendant
    applied for possession before the Magistrate after the dismissal of the suit on the
    ground that the District Munsif had determined his rights. The Magistrate passed
    an order holding that there was no declaration by a civil court as to who was
    entitled to the suit premises and therefore the land would continue in the
    possession of the receiver. It is in that context, that the learned Judge held that
    either party to a decision under Section 146 has to file a suit for declaration of title
    within the period of limitation or to bring a suit for the recovery of the profits of the
    land. In such a suit, the question as to who is entitled to the profits will be decided
    with the result that the question of title would also to be adjudicated. This would

172 AIR 1949 Madras 71
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operate as res judicata for the purpose of Section 146. These observations were
made by the learned Single Judge of the Madras High Court in support of the
ruling that it was not as if parties were without remedy, resulting in the property
remaining custodia legis for all time. Either party was entitled to bring a suit for
recovery of profits within limitation where the question of title would be
adjudicated. This decision is of no assistance to the Nirmohi Akhara. Certain
decisions have been relied upon by Nirmohi Akhara but these are in regard to the
commencement of limitation for the enforcement of a decree by execution. In
Chandi Prasad v Jagdish Prasad173, a two judge Bench of this Court held that
an appeal under the statute is a continuation of the suit for all intents and
purposes. Hence, when a higher forum entertains an appeal and passes an order
on merit, the doctrine of merger applies and there is a merger of the decree of the
trial court with the order of the appellate court. Hence, once a decree is sought to
be enforced for the purpose of execution, irrespective of being original or
appellate, the date of the decree or any subsequent order directing payment of
money or delivery of property at a certain date would be considered to be the
commencement of limitation. The same principle has been emphasized by a
three judge Bench in Union of India v West Coast Paper Mills Ltd.174 and in
Shanti v T D Vishwanathan175. The essential issue is whether their suit was
within limitation and for the reasons which have been indicated, the answer to
that must be in the negative.

173 (2004) 8 SCC 724
174 (2004) 2 SCC 747
175 2018 SCCOnLine SC 2196
PART M
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M.5 Oral testimony of the Nirmohi witnesses

  1. Having held that Suit 3 instituted by Nirmohi Akhara is barred by limitation,
    it does not strictly speaking become necessary for this Court to deal with the
    evidence, oral and documentary. Mr Parasaran urged, that unlike the Trial Court,
    this Court is not required to answer all the questions which arise in the first
    appeal and if limitation alone concludes the issue it is unnecessary to deal with all
    the issues in contest. The Trial Court, it was urged, has to deal with all issues
    since its decision is subject to appeal. Having carefully evaluated this submission,
    it is appropriate to scrutinize the evidence adduced by Nirmohi Akhara and to
    render a full adjudication, having regard to the nature of the controversy. The
    evidence recorded in all the suits has been relied upon during the hearing of the
    appeals. Hence it becomes necessary to advert to the oral evidence. Nirmohi
    Akhara has relied on the oral evidence of the following witnesses during the
    course of the hearing:
  2. Mahant Bhaskar Das (DW 3/1): The date of the Examination-in-Chief of
    the witness is 29 August 2003. He was 75 years of age on the date of the
    deposition and claimed to be a disciple of Baba Baldeo Das. He was the
    Sarpanch of Shri Manch Ramanandiya Nirmohi Akhara and prior to it claimed to
    be a Panch and pujari of the Ram Janmabhumi temple. The witness stated that:
    (i) Nirmohi Akhara is the owner of the idols, the disputed temple, Ram
    Janmabhumi and other temples in the vicinity for several hundred years;
    (ii) The consecration of Lord Ram seated in Ram Janmabhumi temple and
    Ramchabutra was performed by a Mahant of Nirmohi Akhara;
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    (iii) This information was passed down to disciples from their old preceptors
    from generation to generation;
    (iv) That he was performing worship and aarti in the Ramchabutra temple from
    1946-1949;
    (v) Both the inner and outer courtyards have always been in the possession of
    Nirmohi Akhara, there was a sanctum sanctorum in the inner part of which
    the attachment was made;
    (vi) The entire outer part was in possession of Nirmohi Akhara since time
    immemorial;
    (vii) No incident took place during the night of 22/23 December 1949, when he
    was asleep below the northern dome of the disputed structure;
    (viii) Aarti and worship of Lord Ram was being conducted in the sanctum
    sanctorum even prior to 29 December 1949 and the inner temple was
    attached on 19 December 1949;
    (ix) After the riot of 1934, no Muslim had visited the disputed site to offer
    namaz;
    (x) No idol was taken from Ramchabutra temple on 22/23 December 1949
    and the possession of the disputed temple had all along been with Nirmohi
    Akhara;
    (xi) The servicing rights in respect of the main temple had been with Nirmohi
    Akhara until 29 December 1949. Nirmohi Akhara had been performing
    worship of Lord Ram and other idols in the outer premises till the second
    attachment in February 1982; and
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    (xii) Lord Ram was seated in the inner part even prior to 1934, which was in
    continuous possession of Nirmohi Akhara since then.
    Dr Dhavan, learned Senior Counsel appearing on behalf of the Sunni Central
    Waqf Board, has pointed out the following contradictions in the evidence of the
    witness:
    (i) While the witness stated that there was no incident on 22/23 December
    1949, and that he was sleeping below the northern dome of the disputed
    structure, the High Court has recorded the statement of Counsel for
    Nirmohi Akhara to the effect that the idols were shifted from Ramchabutra
    and kept under the central dome of the disputed building; and
    (ii) The witness initially stated that there were two idols of Ram Lalla in the
    disputed building; one on the throne and one on the stairs but he
    subsequently clarified that by two idols he meant one of Ram Lalla and
    another of Lakshman. Moreover, the witness claims that he had himself
    performed Aarti of Lord Ram inside the disputed site prior to its attachment
    on 29 December 1949 in spite of which he was not able to make any
    statement in regard to the number of idols inside the disputed structure.
    Moreover, while on the one hand, the witness stated that the parikrama
    was at the back of the disputed structure later on he stated that parikrama
    was being performed around Ramchabutra.
  3. The testimony of the witness on certain other aspects also merits scrutiny.
    The witness stated that Babri Masjid was built in 1528 by demolishing the Ram
    Janmabhumi temple. Then he stated that:
    PART M
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    ―Since the buildings built by Vikramaditya were 2500 years
    old, they collapsed on their own and the Janmbhumi temple
    was demolished in the year 1528. The building which was
    demolished in the year 1528, was originally built by
    Vikramaditya.‖
    The witness stated that the building of a Ram Janmabhumi temple by
    Vikramaditya and the construction of the disputed structure in 1528 upon the
    demolition of the temple was what he heard from his ancestors and was not read
    by him anywhere. According to the witness, worship in the mosque had been
    continuing by the Hindus before 1934. According to him, the idols had been
    installed prior to 1934 but he was unaware by whom they were installed. The
    witness then stated:
    ―I had heard it from my ancestors that the idols existed over
    there from before the year 1934. I will also not be able to tell
    how many years after the construction of the three domed
    disputed structure i.e. after the year 1528, were the idols
    installed in the disputed structure.‖
    According to the witness, in 1946, the gates of the grill-brick wall were opened for
    devotees and the temple used to remain open. He stated that namaz was not
    offered in the disputed structure till December 1949. As regards the incident on
    22/23 December 1949, the witness has the following explanation:
    ―No incident occurred in the disputed structure in the night of
    22/23 December, 1949. If somebody claims that some
    incidents occurred in the disputed structure in the night of
    22/23 December, 1949, then he is stating wrongly. In the
    night of 22/23 December, 1949 I was present in the disputed
    premises. I go to bed at 11.30 PM and get up at 4.30 AM. I
    must have slept so in that night i.e. in the night of 22/23
    December, 1949. At that time i.e. in that night, I had slept at
    the place beneath the dome.‖
    The ignorance which the witness feigns of the incident is evident. The deposition
    of the witness assumes importance because he was the Panch of Nirmohi
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    Akhara since 1950 and was at the material time the Sarpanch. His evidence has
    several contradictions. He stated:
    ―This throne existed in the disputed structure from before the
    year 1950. This throne was present in the disputed structure,
    from ten years before the year 1950. This throne was in the
    disputed structure in the year 1950, but it had not been
    attached.”
    On the other hand, the witness stated:
    ―Before 1986, the throne, visible in these photographs, did not
    exist at the disputed site. This throne may have been placed
    in the disputed building after its lock was opened in 1986.‖
    The witness then admitted that he had referred to two idols of Lord Ram when
    there was only one idol of Lord Ram and one of Lakshman. As regards the idols
    at Ramchabutra, the witness stated that they were installed during Akbar‘s reign.
    While on the one hand, the witness stated that namaz had never been offered in
    the mosque since the days of Babur, on the other hand, when he deposed about
    the idol of Ram Lalla in the disputed structure, he stated that it was prior to 1934
    but the exact date and period was not known to him. According to the witness,
    the idol of Ram Lalla seated on the throne was a chal – vigrah or moveable idol.
    Much of the evidence of the witness is hearsay in nature. His statements are
    based on what has been communicated to him by others. The explanation of the
    witness that he was asleep in the disputed premises on 22/23 December 1949
    and that no incident had taken place is a figment of his imagination. The
    statement that the idols of Ram Lalla have been placed in the disputed structure
    much prior to 1934 is unworthy of credence.
    PART M
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  4. Raja Ram Pandey (DW 3/2): The date of the Examination-in-Chief of the
    witness is 22 September 2003. The witness stated that he was 87 years old at
    the time of deposition and that he had come to Ayodhya in 1930 since when he
    claimed to have been visited the Ram Janmabhumi temple. The witness stated
    that:
    (i) He had seen the Nirmohi Akhara Aarti prior to the attachment of the inner
    courtyard;
    (ii) The duty of opening and closing the gates of the outer courtyard was
    performed by Nirmohi Akhara;
    (iii) No Muslims were allowed to enter from the outer gate between 1930-1949
    and he was able to view the inner part of the sanctum sanctorum where
    some idols had been engraved; and
    (iv) Ever since his arrival until the date of attachment, the premises have never
    been used as a mosque.
    Dr Dhavan has during the course of his submissions emphasized the following
    aspects of the cross-examination:
    (i) The witness has accepted that earlier the Chabutra was known as
    Janmabhumi temple;
    (ii) The witness was unaware as to when the disputed structure with three
    domes was built and who had got it built; he had no knowledge as to when
    and who had installed the idols inside the disputed structure; and
    (iii) The witness was unaware as to when and by whom Nirmohi Akhara was
    made the owner of Ram Janmabhumi temple.
    PART M
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    The witness stated during the course of his examination that he was hearing of
    the Babri mosque since 1949 but he was unaware where in Ayodhya it is or was
    situated. He stated that he came to know later from the cross-examination that
    the building which he called the Ram Janmabhumi temple is called the Babri
    mosque by Muslims. Though, he stated he had held meetings with Muslims in
    1992-93, he stated he was not informed by any of them that the mosque has
    been demolished on 6 December 1992. On his own ability to recall events, the
    witness stated:
    ―I have grown 87 years old and my discretion does not work
    in a proper manner. For this reason, I fail to remember which
    particular thing I stated at a particular time. Of the aforesaid
    statements, the above mentioned statement given by me
    today is correct; I have wrongly given the statement dated
    30.09.2003.‖
    The witness deposed that he had no knowledge of who had installed the idols in
    the three domed disputed structure but claimed to have been seeing them ever
    since he was visiting it. While on the one hand, the witness admitted to the
    weakness of his memory, he purported to depose to what had taken place in
    1930, 73 years earlier when he visited the disputed structure for darshan.
    According to him, his father had stated that the pillars contained images of Lord
    Hanuman.
  5. Satya Narain Tripathi (DW 3/3): The Examination-in-Chief of the witness
    was on 30 October 2003 when he was 72 years old. The witness stated that he
    had first visited the Ram Janmabhumi temple in 1941 when he was ten years old
    and had been continuously visiting since then. The witness stated that no namaz
    was offered at the disputed site nor had any Muslims offered prayer. Though, the
    PART M
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    witness stated that he has been continuously visiting the disputed structure, when
    asked about the physical features, he stated that he never saw any part of the
    disputed structure with much attention.
    The witness expressed ignorance about whether certain individuals had entered
    the mosque and placed idols on the night of 23 December 1949. The High Court
    has noted that most of the statements of this witness are on assumption and
    hearsay. While on the one hand, he referred to the idols which were placed on
    the sinhasan in the disputed structure which remained there from 1941-1992, he
    later retracted the statement when shown the photographs and stated that it was
    not clear to him when he used to visit and in what manner the idols were kept.
  6. Mahant Shiv Saran Das (DW 3/4): The witness was examined on 14
    November 2003. He was 83 years old. He stated that he had been going for
    darshan to Shri Ram Janmabhumi since 1933 and had darshan of Lord Ram
    inside the sanctum sanctorum until attachment in 1949.
    Dr Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board,
    has emphasized the following aspects of the testimony of this witness:
    (i) The witness submitted that he had read his affidavit of evidence only
    cursorily and had not read it completely;
    (ii) Though the witness stated that when he visited the disputed site in 1936,
    there were no walls or iron-bars, it is relevant to note that grill-brick wall
    was placed in 1856-57 to separate the inner and the outer courtyards; and
    (iii) Though, in the course of his Examination-in-Chief, the witness stated that
    he had taken darshan of the inner sanctum sanctorum until its attachment
    PART M
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    in 1949, during his cross-examination he stated that he had not visited the
    disputed building before 1986. On the above basis, it is urged that as a
    matter of fact, the witness has not visited the disputed site at the material
    time.
    On his residence in Ayodhya, the witness stated:
    ―I did not reside at Ayodhya from 1938 to 1950 but whenever I
    came to Ayodhya I did not go towards the disputed site and if
    I at all went there I returned from outside after saluting the
    place with folded hands.‖
    The witness stated that he was a priest at the disputed structure which he must
    have visited several hundred times. However, he did not remember the year in
    which he was a priest. During the course of his cross-examination, the witness
    stated that he was a priest at the three domed structure for ―2-4 years‖ but later
    admitted that his statement was wrong:
    ―Question: As per the aforesaid statement of your own, you
    have been at Ayodhya continuously for only 5-6 months
    between 1931 and 1957. Is it true?
    Answer: Yes, Sir. It is true.
    Question: Then I have to say that your statement dated 5th
    February, 2004 – mentioned on page 74 and reading as ‘You
    served as a priest at the three domed disputed building for 2-
    4 years’ – goes wrong. What have you to say in this respect?
    Answer: Going through the aforesaid the witness stated –
    this statement of mine has gone wrong.‖
    Later, he admitted that his statement in the Examination-in-Chief that he was
    going for darshan to the Ram Janmabhumi since 1933 contained a wrong
    reference to the year. Moreover, the witness accepted that he did not remember
    whether or not he had visited the disputed building before February 1986. The
    witness also stated that he had wrongly made a reference to his residing in
    Ayodhya continuously from 1930-42.
    PART M
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  7. Raghunath Prasad Pandey (DW 3/5): The Examination-in-Chief of the
    witness is dated 18 November 2003. The witness was 73 years old when he
    deposed. According to him, the Ram Janmabhumi temple is about 16 or 17
    kilometres from his village and he has visited it since the age of 7.
  8. The following aspects of the cross-examination have been emphasized by
    Dr Dhavan:
    (i) The witness had no knowledge of whether the pictures were of the west
    side wall or the lower portion of the middle dome of the disputed building
    because he had gone for darshan and had not paid careful attention to the
    walls;
    (ii) Though, he had seen the grill-brick wall, he did not remember if one had to
    pass through the barricades to enter the disputed structure; and
    (iii) Though the witness claimed to have visited Ayodhya with his mother from
    1937-1948, and that the idols of Lord Ram Lalla were inside the building
    under the central dome, he subsequently contradicted himself when
    confronted with various photographs.
    The High Court has noted that most of his statements travelled into antiquity and
    were inadmissible since he had no personal knowledge of the facts. When
    questioned about the source of his knowledge, he stated that he had heard
    stories from his teachers. Initially, the witness stated that the three domed
    structure was constructed by Vikramaditya. He then stated that the building
    constructed by Vikramaditya was demolished and the disputed building was
    constructed. Though, he attributed this information to the Ayodhya Mahatmya,
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    counsel for Nirmohi Akhara conceded before the High Court that the document
    does not mention that the building was constructed by Vikramaditya and was
    demolished after which the disputed structure was constructed. Though, the
    witness had served in the Indian Railways from 1948-1988, he claimed to have
    heard the name of Babri mosque for the first time on 18 November 2003.
  9. Sri Sita Ram Yadav (DW 3/6): The date of the Examination-in-Chief of the
    witness is 6 January 2004. The witness stated that he was born in 1943 and that
    he attained the age of understanding in 1951 when he was 8 years of age. The
    statements of this witness were therefore not relevant to the controversy since his
    factual knowledge pertains to the period after 1951. This witness was born in
    1943 and had no personal knowledge of the facts up to December 1949. The
    evidence of the witness was hearsay in nature.
  10. Mahant Ramji Das (DW 3/7): The following aspects of the testimony have
    been emphasized by Dr Dhavan:
    (i) The witness accepted that the disputed building was built by Emperor
    Babur but he stated that it was constructed as Sita Pak but not as a
    mosque, which is contrary to the stand of Nirmohi Akhara in its written
    statement;
    (ii) According to the witness, the disputed temple was constructed after the
    demolition of Janmasthan Mandir by Emperor Babur by way of Goodar
    Baba (which is not the pleaded case of any of the Hindu Parties); and
    PART M
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    (iii) Babur got ‗Sita Pak‘ written on the disputed building because he was
    unable to construct the mosque because Hanumanji would demolish the
    structure whenever an attempt was made to build a mosque.
    As to his own personal knowledge, the witness stated:
    ―I cannot definitely tell as to on how many occasions had I
    gone to Ayodhya between the years 1934 to 1948. I do not
    remember as to what was my age, when I visited Ayodhya
    between the years 1934 to 1948. When I had gone along with
    my father. I do not remember as to when did I first go to
    Ayodhya after the year 1934, but when I first went to Ayodhya
    after the year 1934, I stayed for 3-4 days.‖
    Contrary to the stand of the Nirmohi Akhara, he stated that the disputed structure
    was built by Babur, though in the shape of Sita Pak:
    ―The disputed structure, which was demolished on 6th
    December, 1992, was built by Babar in the shape of ‘Sita
    Pak’, (and) not in shape of mosque… In the period of Akbar,
    Muslims had the permission to offer Jumma namaz in the
    disputed structure and for the remaining period, Hindus were
    permitted to carry out prayer-worship. It is not found in
    literature or history as to whether in the period between
    Babar to Akbar, namaz was offered by Muslims in the
    disputed structure or not, or whether the prayer-worship of
    Lord Rama was carried out or not. To the best of my
    knowledge and as told to me, namaz was never offered in
    the disputed structure after the riot of the year 1934 and
    instead prayer-worship was regularly carried out over there
    in the later days. As per my knowledge, which is based on
    hearsay, the Jumma namaz was offered at the disputed
    structure from the times of Akbar till the year 1934. Namaz
    was not offered on other days.‖
    Eventually, the witness stated that he had not read his affidavit by way of
    Examination-in-Chief at the time of signing it and had read it in the court room.
  11. Pt Shyam Sundar Mishra (DW 3/8): He was born in 1914 and stated that
    Ram Janmabhumi is situated at a distance of less than 400 yards from his house.
    PART M
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    He was 90 years old at the time of deposing.
  12. The following aspects of the testimony of the witness have been
    emphasised by Dr Dhavan:
    (i) The statement of the witness that the central dome is swayambhu is
    against the pleaded case of Nirmohi Akhara;
    (ii) According to the witness, in 1992 the dome of the janmasthan temple
    came down due to its antiquity and due to lack of proper maintenance; and
    (iii) While deposing, the witness seems to distinguish between Ramchabutra
    temple and the ―three dome temple‖ and stated that it was the
    Ramchabutra temple which was in the ownership of Nirmohi Akhara and
    remained silent about the management and ownership of the ―three domed
    temple‖.
    The witness stated that he had no knowledge about the observance or nonobservance of worship at the disputed site before he attained the age of 14
    years.
  13. Sri Ram Ashrey Yadav (DW 3/9): The Examination-in-Chief of the
    witness was recorded on 22 March 2004 when he was 72 years of age. He
    claims to reside in close proximity to the Ram Janmabhumi temple.
  14. Dr Dhavan has submitted that this witness is completely unaware of what
    is stated in his Examination-in-Chief, which needs to be completely disregarded
    for the following reasons:
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    (i) In the course of his cross-examination, the witness admitted that while he
    had no knowledge of what was written in his affidavit, he cannot recollect
    what exactly was written though it was read out to him;
    (ii) The answers which he has furnished maybe right or wrong and that his
    memory had been affected;
    (iii) He was unaware whether the main affidavit was typed in Faizabad or
    Lucknow;
    (iv) He had visited the sanctum sanctorum for darshan even before 22/23
    December 1949 and the statement that an idol was placed on those dates
    was untrue; and
    (v) The witness was unaware whether the dates 22/23 December pertained to
    the year 1949 or not.
    Though, the affidavit was prepared merely ten months earlier, the witness was
    unable to recollect anything from the document. He was unaware of the history of
    Nirmohi Akhara and had no knowledge whether the disputed shrine was
    attached. This witness stated that he was unaware of the contents of his affidavit
    by way of Examination-in-Chief:
    ―Today, I have filed an affidavit in this Court. I was not able to
    read on my own as to what was written in the affidavit filed by
    me. This affidavit was read out to me by the ‘Munshi’
    (advocate clerk), but I do not remember his name. I had only
    put my signature on the affidavit after hearing the same, but I
    do not know about its contents. This affidavit ran into three or
    four pages.‖
    PART M
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    Later, he stated that his mind was not functioning properly for eight to ten months
    and his memory had become weak. He stated:
    ―I do not recollect whether the facts mentioned in this
    paragraph, had been got incorporated by me or not. … In
    second and third line of this paragraph, I have mentioned that
    ‘the placement of idols in the ‘Garbh-grih’ portion on 22-23
    December, is totally wrong’. I do not remember whether this
    fact is related to the incident of 1949 or not. In this very
    paragraph, I have also mentioned that ‘few local Muslims. …
    got the forged action taken’. I do not recollect as to in which
    behalf, was this forged action. Stated on his own that I cannot
    tell whether the forged action mentioned by me was related to
    the incident of year 1934 or not.‖
  15. Sri Pateshwari Dutt Pandey (DW 3/10): The Examination-in-Chief of the
    witness is dated 23 March 2004. The witness who was 74 years of age stated
    that he was the local commissioner who performed a site survey in relation to
    another case (Nirmohi Akhara v Ram Lakhan Sharan Das – Suit 9 of 1973).
    Dr Dhavan has adverted to the following points in regard to the testimony to the
    witness:
    (i) Though, his report marks the existence of a Mandir at the disputed site, he
    accepted that the word ‗Mandir‘ had been inserted by him at the behest of
    certain other persons. He did not know whether the place was Babri Masjid
    or otherwise and stated that he had written what was informed to him by
    others; and
    (ii) Consequently, the report of the witness cannot be relied upon to establish
    that the disputed structure was a temple as he marked it as a temple only
    on the suggestion of others.
    PART M
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    These admissions of the witness cast serious doubt on his credibility.
  16. Sri Bhanu Pratap Singh (DW 3/11): The Examination-in-Chief of this
    witness was recorded on 28 April 2004 when he was 70 years of age. He claimed
    to be visiting the Ram Janmabhumi temple since the age of 10. The witness
    stated that his memory is weak. He was unable to state whether any other temple
    apart from the Ram Janmabhumi temple is related to Nirmohi Akhara. When
    confronted with his Examination-in-Chief, he stated:
    ―The portion ‗temples all around‘ of my above statement, is
    wrong because temples were only on two sides… In this
    behalf, I cannot give any reason for making wrong statement.
    I forget few facts due to which such statements are made. By
    forgetting, I mean that I do not remember those facts at that
    time.‖
  17. Sri Ram Akshaibar Pandey (DW 3/12): The Examination-in-Chief was
    recorded on 25 May 2004. The witness who was 70 years of age stated that he
    was visiting the Ram Janmabhumi temple since the age of 12.
    The following aspects of the testimony of the witness are significant:
    (i) The witness admitted that his information about the disputed structure had
    been gathered from his grandfather;
    (ii) Though, in his Examination-in-Chief, he stated that he used to do the
    parikrama, in the course of his cross-examination, he stated that he had
    never seen the three domes from behind the structure;
    (iii) The witness stated that he had not performed the parikrama of the Ram
    Janmabhumi but of Ramchabutra;
    PART M
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    (iv) According to the witness, he was informed by the villagers that the Ram
    Janmabhumi in which Ram Lalla was present had collapsed as it was old;
    and
    (v) The witness stated that he neither read nor heard about who had
    constructed the disputed structure with three domes. The witness
    eventually accepted the weakness of his own memory rendering him
    unreliable.
  18. Mahant Ram Subhag Shashtri (DW 3/13): The Examination-in-Chief was
    recorded on 25 May 2004. The witness was 86 years of age and stated that he
    had come to Ayodhya in 1933 and his guru was connected to Nirmohi Akhara.
    The following aspects of the testimony of witness are relevant:
    (i) The witness stated that there was a disturbance on the night of 22/23
    December 1949 in the disputed structure and though he was not aware
    about the arrangements which were made on that night, it transpired that
    new idols were installed;
    (ii) As regards the construction of the mosque, the witness stated:
    ―Babar had built the mosque by demolishing the structure of
    temple, but he was unable to make it a mosque completely.
    14 pillars were fixed in this structure, which had idols
    engraved over them, and as such it became a place of idol.‖
    (iii) The witness stated that possibly facts pertaining to the period after 1933-
    34 had vanished from his memory. The statement of the witness that the
    idols were installed in the disputed structure on the night of 22/23
    December 1949 is contrary to the case of Nirmohi Akhara. According to
    Nirmohi Akhara, there never existed any mosque at the disputed site and
    PART M
    336
    all along there was a temple which was in its management, and that no
    incident had taken place on 22/23 December 1949.
  19. Jagad Guru Ramanandacharya Swami Haryacharya (DW 3/14): The
    Examination-in-Chief was recorded on 23 July 2004 when the witness was 69
    years old. He was the head of Ramanand Sampradaya since 1985-86. He came
    to Ayodhya in 1949 at the age of 10. According to him, he had seen the idol of
    Ram Lalla inside the disputed structure under the central dome as well as outside
    at Ramchabutra. The witness deposed when he first had darshan from a distance
    of 15 feet, it was not from under the dome but from the courtyard. The witness
    had no information whether namaz was offered in the disputed structure before
    he came to Ayodhya. The witness did not rule out the possibility that the idols
    were placed inside the disputed structure in 1949, when he stated:
    ―It is possible that in the dispute that occurred in 1949 and in
    the incident in which idol had been placed in the disputed
    building, the local Hindus of Ayodhya had no role; rather,
    outsider ascetic saints were responsible for the same.‖
  20. Narendra Bahadur Singh (DW 3/15): The Examination-in-Chief was
    recorded on 17 August 2004. The witness was 72 years of age. According to him,
    when he was 11 years old, he went to Ram Janmabhumi with his parents and
    saw the idol of Ram Lalla seated under the central dome. He claimed that since
    the age of 15, he was going alone to the temple until demolition.
    PART M
    337
    Dr Dhavan has adverted to the following points in regard to the testimony of the
    witness:
    (i) The witness needs to be completely disregarded for having furnished
    varied time periods of when he commenced visiting the disputed site.
    Though, he stated in his Examination-in-Chief that he first visited at the
    age of 11, in his cross-examination, he stated that he had seen the
    Nirmohis managing the disputed structure since the age of 5-6 years and
    8-9 years;
    (ii) Regarding his statement that he had never seen any namaz at the
    disputed site, he stated that he was not there at the site and hence could
    not see whether namaz was being conducted; and
    (iii) The witness denied the existence of the Janmasthan Mandir on the north
    side which has been accepted by Nirmohi Akhara in its replication.
  21. Shiv Bhikh Singh (DW 3/16): The witness was 79 years of age on the
    date on which his affidavit, by way of Examination-in-Chief, dated 24 August
    2004 was sworn. He claimed that he had been visiting Ram Janmabhumi temple
    since the age of 12 and had seen the idol of Lord Ram under the central dome.
    The witness stated that the idol of Ram Lalla was situated in the Ram
    Janmabhumi temple and there were three caves. He denied that the idols were
    placed in the disputed structure on 23 December 1949. According to him, the
    idols existed at the disputed structure even before his forefathers. The witness
    spoke about darshan in the three domed structure where the idol existed but
    stated that circumambulation was performed inside the grill-brick wall. According
    to him there was no place called Sita Rasoi in the disputed premises. The
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    witness also stated that when he had first gone to the three domed structure, he
    had not been exactly under the central dome and that he had taken darshan from
    the gate in the front of the lower side of the dome.
  22. Sri Mata Badal Tewari (DW 3/17): The witness was 84 years of age on
    the date of his Examination-in-Chief dated 31 August 2004. He claimed that he
    had visited the Ram Janmabhumi temple for the first time in 1935 at the age of 15
    and has visited Ayodhya since then. The witness had no knowledge about the
    Babri Masjid at Ayodhya or where it is situated. He however stated that he heard
    of the mosque. The lack of awareness of this witness about the mosque is
    contradicted by his account of the riots of 1934:
    ―I have mentioned about the riot of Ayodhya. This riot
    occurred in the year 1934. Some part of the disputed
    structure had been damaged at that time. Those domes were
    damaged by many people. The damagers were followers of
    Hindu religion.‖
    If, according to the witness, the persons who damaged the domes in 1934 were
    Hindus by religion, it is impossible to accept his lack of awareness about the
    existence of the mosque.
  23. Sri Acharya Mahant Bansidhar Das (DW 3/18): The witness who was
    born in 1905, stated that he had come to Ayodhya in 1930. He was 99 years of
    age on the date of his Examination-in-Chief on 15 September 2004. He stated
    that he was continuously visiting the disputed structure and worshipping idols in
    the inner courtyard. The following aspects of the testimony of this witness need to
    be noted:
    PART M
    339
    (i) The witness deposed that Ramchabutra is also called Bedi and the word
    can be used for a small or large Chabutra;
    (ii) The witness stated that there is no harm in telling a lie if there is a religious
    place and if someone is acquiring it through wrong means or forcibly
    occupying it;
    (iii) The witness admitted that his memory was not good due to age;
    (iv) The witness had given testimony in about two hundred suits. The witness
    had varied theories about the construction of the temple contrary to the
    pleaded case of the litigating Hindu parties:
    (a) According to him, the repairs of the Ram Janmabhumi was carried
    by Nirmohi Akhara during the last 700 years;
    (b) The temple of Kasauti black stones was constructed by Nirmohi
    Akhara;
    (c) The temple said to be made during the time of Vikramaditya was
    constructed by the King of Kannuz and not by the King of Ayodhya;
    (d) Mir Baki destroyed the Ram temple but did not construct the Masjid,
    the temple was reconstructed by Govind Das who was the Mahant
    of Nirmohi Akhara during the regime of Babur;
    (e) Govind Das Ji constructed the building with three domes;
    (f) Some part of the temple was constructed during the regime of Babur
    which was destroyed during the regime of Humayun but was
    reconstructed by Govind Das Ji; and
    (g) Anantananda, disciple of Ramanand, reconstructed the temple at
    the disputed site.
    PART M
    340
  24. Sri Ram Milan Singh (DW 3/19): The witness was 75 years of age on 17
    August 2004 when his Examination-in-Chief was recorded. He sought to prove
    the existence of idols under the central dome in the inner courtyard and on the
    Ramchabutra, stating that he had been visiting since 1940 till 1951 and
    occasionally after 1952. When questioned about his affidavit, he stated:
    ―The person having prepared this affidavit, can only tell about
    this. I had not completely read the affidavit of examination-inchief before signing it… I had put my signature on the affidavit
    at the High Court, Lucknow. I cannot tell whether this affidavit
    had been typed out at Lucknow or not. At the time when the
    draft of this affidavit of mine had been prepared, I was at the
    place of my counsel in Ayodhya. He had told that ‗I am
    preparing the draft of your affidavit‘. I had not seen the
    contents of the draft of the affidavit, after it was prepared.‖
    The above admission renders his evidence untrustworthy and not deserving of
    credence.
  25. Mahant Raja Ramchanbdr-Acharya (DW 3/20): The witness was 76
    years old on the date of the Examination-in-Chief on 27 October 2004. He was a
    pupil of Mahant Raghunath Das, the second plaintiff in Suit 3. The witness stated
    that in 1943, when he first came to Ayodhya, the Babri Masjid did not exist and
    that the disputed building is not a mosque:
    ―In 1943, when I first came to Ayodhya, the Babri mosque
    was not at all existing there. There was no mosque on the
    disputed site in 1943, because there used to be worship of
    idols over there. I have heard the name of the Babri mosque.
    The disputed building is the Babri mosque. (Again stated) It is
    not the Babri mosque; it is a temple. The disputed building
    has three domes. It is not a mosque. It is the birthplace of
    Lord Rama. In 1943, when I first visited Ayodhya I did not see
    the Babri mosque at all. I never saw namaz being offered in
    the disputed building. I have seen Pooja being performed
    there. (Stated on his own) No question arises of offering
    namaz at a place where Pooja is performed. In 1943, when I
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    341
    first visited Ayodhya, I saw a temple, not a mosque, on the
    disputed site. (Stated on his own) There used to be PoojaSewa (offering worship and rendering service) over there.
    Three domes were built in the disputed building.‖
    According to the witness, namaz was not offered at the disputed building from
    1943 to 1950 and puja was being performed; and the sanctum sanctorum was
    situated beneath the three domed structure of the disputed building.
  26. The above account of the oral evidence of the witnesses who deposed in
    support of the Nirmohi Akhara indicates that their statements are replete with
    hearsay. Witnesses who claimed to have visited the disputed site on numerous
    occasions were unable to record its physical features. Though, the witnesses
    have purported to state that no incident had taken place on 22/23 December
    1949 and one of them feigned ignorance on the ground that he was sleeping
    inside the disputed structure at the time, it is impossible to accept this as a
    credible or trustworthy account. The statements of the witnesses are replete with
    inconsistencies and contradictions. The witnesses were unclear about the nature
    of the parikrama route and the number of idols. While furnishing a description of
    the idols inside the disputed structure, many witnesses acknowledged that they
    had not entered the disputed structure. Many of the witnesses had not read their
    affidavits in lieu of the Examination-in-Chief and had merely appended their
    signatures without understanding the contents. Many of the witnesses have not
    been able to confirm their assertions in the Examination-in-Chief and have in fact
    contradicted their own statements. Many of the witnesses offered accounts with
    respect to the disputed structure which are at variance with the pleaded case of
    Nirmohi Akhara. Some of the witnesses in fact supported the case in Suit 4 that
    PART M
    342
    Babri Masjid existed where prayers had been conducted. Consequently, the
    witness accounts cannot be regarded as credible proof in support of the case of
    Nirmohi Akhara.
    M.6 Nirmohi Akhara‘s claim to possession of the inner courtyard
  27. The claim of Nirmohi Akhara in Suit 3 is in respect of the inner courtyard,
    including the three domed structure of the mosque. Nirmohi Akhara denies the
    incident of 22/23 December 1949 during the course of which the idols were
    surreptitiously installed into the disputed structure. According to Nirmohi Akhara,
    the structure is a temple and not a mosque. The oral evidence which has been
    adduced to support this submission has been analysed earlier. The oral evidence
    does not indicate any cogent, credible or trustworthy account of Nirmohi Akhara
    being in possession of the inner courtyard or structure. With this state of the
    record in regard to the oral accounts of the witnesses produced by Nirmohi
    Akhara, it becomes necessary to scrutinise whether the documentary evidence
    supports the case of Nirmohi Akhara being in possession of the inner courtyard
    and structure.
  28. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiffs in
    Suit 3, emphasized the findings contained in the judgments of Justice Sudhir
    Agarwal and Justice D V Sharma that Nirmohi Akhara had a presence at
    Ayodhya from 1734 after Mahant Govind Das left Jaipur to come to Ayodhya.
    Justice Sudhir Agarwal observed, while deciding issue 17 in Suit 3 that:
    PART M
    343
    ―799…Nirmohi Akhara, plaintiff no. 1 is a Panchayati Math of
    Ramanandi Sect of Bairagies and as such is a religious
    denomination following its religious faith and pursuit
    according to its own custom. We however further hold that its
    continuance in Ayodhya find sometimes (sic) after 1734 AD
    and not earlier thereto.‖
    Justice D V Sharma placed reliance on the evidence of Mahant Bhaskar Das
    (DW 3/1) and Raja Ramachandracharya (DW 3/20) to hold that:
    ―Nirmohi Akhara is a Panchayati of Ramanandi sect of
    Bairagies and as such is religious denomination. The custom
    has already been registered in the year 1949.‖
  29. These findings do not establish Nirmohis being in possession of the inner
    courtyard. While scrutinizing the documentary evidence which has been relied
    upon by them, a distinction must be drawn between a mere presence of Nirmohi
    Akhara at Ayodhya or around the disputed site and actual possession of the
    disputed structure. Mr S K Jain in that context adverted to the account of
    Tieffenthaler of 1770 which refers to the presence of the Bedi or cradle
    symbolizing the place of birth of Lord Ram. The reference to the cradle in
    Tieffenthaler‘s account cannot be regarded as indicative of the Nirmohi Akhara
    being in possession of the disputed structure or inner courtyard of the mosque.
    Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18), who was a
    witness for Nirmohi Akhara stated that Ramchabutra is also called Bedi. The
    statement of this witness to the effect that the Bedi / cradle was at Ramchabutra
    cannot be taken out of context and has to be read in the light of the entirety of the
    evidence, including Tieffenthaler‘s observations on what he had noticed. Among
    the other documents, which have been relied upon are:
    (i) ―East India Gazetteer of Hindustan‖ by Walter Hamilton;
    PART M
    344
    (ii) Edward Thornton‘s ―The Gazetteer of the Territories under the
    Government of East India Company‖;
    (iii) The complaint of 25 September 1866 by Meer Rajab Ali Khateeb regarding
    the ―Kothri‖ constructed by certain Bairagis inside the compound of the
    mosque;
    (iv) Carnegie‘s ―Historical Sketch of Faizabad‖;
    (v) Permission granted to Mahant Khem Das on 13 April 1877 for the
    construction of a new gate on the northern side;
    (vi) The appeal filed on 13 December 1877 against the grant of permission for
    the new gate;
    (vii) The report made by the Deputy Commissioner in view of the above appeal;
    (viii) The order of the Commissioner dated 13 December 1877 dismissing the
    appeal;
    (ix) Gazetteer of the Province of Oudh (1877-78);
    (x) The plaint in the suit instituted by Syed Mohd Asghar against Mahant
    Raghubar Das on 8 November 1882 seeking rent for the use of the
    Chabutra;
    (xi) The order of the Sub-Judge, Faizabad dated 18 June 1883 dismissing the
    suit;
    (xii) The application filed by Syed Mohd Asghar on 2 November 1883 for
    permission to carry out repairs of the mosque;
    (xiii) The order of the Deputy Commissioner dated 12 January 1884;
    (xiv) The order of the Assistant Commissioner dated 22 January 1884; and
    PART M
    345
    (xv) The complaint by Mahant Raghubar Das dated 27 June 1884 seeking spot
    inspection in view of the work being carried out by Syed Mohd Asghar for
    white washing the walls of the mosque.
  30. These documents have been analysed in the judgment of Justice Sudhir
    Agarwal who observed that the idol existed at Ramchabutra and Nirmohi Akhara
    was likely looking after the worship of the idol, which was not seriously disputed
    by the other Hindu parties. However, Justice Agarwal observed that there was no
    basis to hold that Nirmohi Akhara continued to do so even after the idols were
    shifted inside the structure on 22/23 December 1949. This finding was because
    Nirmohi Akhara plainly denied that any incident had taken place on 22/23
    December 1949 and they had no cogent explanation to offer of the events which
    took place on the intervening night. A careful scrutiny of the documents which
    have been relied upon by Nirmohi Akhara does not lead to the inference that
    Nirmohi Akhara had exclusive possession of the disputed structure. We must
    bear in mind the submission of Mr S K Jain that the disputed structure of the
    mosque was landlocked and that the outer courtyard which included
    Ramchabutra, Sita Rasoi and the Bhandar had to be traversed in order to gain
    entry to the mosque. There were two gates to the outer courtyard namely Singh
    Dwar and Hanumat Dwar. But, would the landlocked character of the disputed
    structure lead ipso facto of the conclusion that Nirmohi Akhara was in possession
    of the inner structure? It is not possible to draw that inference on a
    preponderance of probabilities.
    PART M
    346
  31. In 1885, a suit was instituted by Mahant Raghubar Das seeking permission
    for the construction of the temple on the Chabutra. The Sub-Judge at Faizabad in
    his judgment dated 24 December 1985 observed that though the area occupied
    by the Chabutra was in the possession and ownership of the plaintiff, permission
    for carrying out construction should be refused on the ground that it was not in
    public interest and would lay the seeds of conflict between the Hindus and
    Muslim communities. In appeal, the District Judge Faizabad on 18/26 March
    1886 deleted the observations on the ownership of the Chabutra made in favour
    of Mahant Raghubar Das. Mr S K Jain, in his written submissions has fairly
    accepted that the events arising out of the Suit of 1885 have been relied upon to
    show the presence of Mahant Raghubar Das at the Ramchabutra in the outer
    courtyard. Besides this, the Nirmohis have been ambivalent about the Suit of
    1885 indicating unawareness about it at one stage and then adopting an
    inconsistent position at other times.
  32. The next set of documents relied on by Nirmohi Akhara commence from
  33. These documents are set out below:
    (i) Agreement permitting Jhingoo to provide drinking water to pilgrims176;
    (ii) H R Nevill‘s ―The Gazetteer of the United Provinces of Agra and Oudh
    1905‖ stating that the Nirmohi Akhara sect formerly held the Ram
    Janmabhumi temple in Ramkot, the remains of which still belong to them;
    (iii) Mutation entry in favour of the Mahant Raghunath Das177;
    (iv) Agreement of Theka shop dated 13 October 1942178;

176 Exhibit 8
177 Exhibit 49
PART M
347
(v) Agreement dated 29 October 1945 executed in respect of a shop by
Mahant Raghunath Das179;
(vi) The report by the Waqf Inspector stating that Muslims were not able to
perform namaz Isha at the mosque due to the fear of Hindus and Sikhs180;
(vii) The report of the Waqf Inspector dated 29 December 1949 recording the
presence of police personnel between 22/23 December 1949181, and that
no namaz was being performed except on Friday when the mosque is
open for 3-4 hours and that several bairagis were trying to forcibly take
possession of the mosque;
(viii) The report of the receiver dated 5 January 1950 which refers to Nirmohi
Akhara while depicting the boundaries of the property taken into
possession by him.182 Post attachment on 5 January 1950, it has been
submitted that objections were filed by Mahant Baldeo Das in the
proceedings under Section 145183;
(ix) In 1961, permissions were sought for carrying out construction in the outer
courtyard; and
(x) The clarification of the City Magistrate dated 9 February 1961 stating that
there was no objection to the replacing of canvas or cover.
Adverting to the documents which have been relied upon by Nirmohi Akhara,
Justice Sudhir Agarwal held that the contents of documents to which the
defendants were not parties are not relevant on questions of title and possession.

178 Exhibit 9
179 Exhibit 10
180 Exhibit A-63 – Suit 1
181 Exhibit A- 64 – Suit 1
182 Exhibit A– 3 – Suit 4
183 Exhibit 6 -Suit 3
PART M
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The documentary evidence relied upon by Nirmohi Akhara does not shed light in
respect of the premises within the inner courtyard.

  1. Dr Rajeev Dhavan has, in the course of the hearing of the appeal, filed a
    detailed response to the exhibits which were relied upon by Nirmohi Akhara. The
    course of events in the history of the communal conflict indicates a series of
    conflagrations between Hindus and Muslims in 1856-57 and 1934. The mosque
    was partially damaged in 1934 and subsequently, obstructions were placed in the
    course of offering namaz in the mosque involving a denial of the right to pray for
    the Muslims. This is followed by the events which took place on 22/23 December
    1949 when idols were surreptitiously placed under the central dome. Soon
    thereafter, proceedings were initiated under Section 145 resulting in the
    attachment of the property. In this background, it is difficult to accept the case of
    Nirmohi Akhara that the disputed structure was a temple which was in its
    exclusive possession and that no incident had taken place on 22/23 December
    1949.
    Documentary evidence in regard to the mosque (1934-1949)
  2. In order to refute the claim of Nirmohi Akhara in regard to possession of
    the disputed structure, Mr Zafaryab Jilani, learned Senior Counsel appearing for
    the Sunni Central Waqf Board relied on documentary evidence to support the
    case that the structure situated within the inner courtyard was a mosque and that
    it was being used by Muslims to offer namaz from 1934 to 1949. This
    documentary evidence has a bearing on the correctness of the claim of Nirmohi
    PART M
    349
    Akhara in regard to exclusive possession of the mosque and hence needs to be
    scrutinised. The documentary evidence consists of the following:
    (i) Certified copy of the order dated 4 June 1942184 and decree dated 6 July
    1942 in Regular Suit 95 of 1941 (Mahant Ramcharan Das v Raghunath
    Das) before the Additional Civil Judge, Faizabad.185 A compromise was
    arrived at in the Suit. The terms of compromise contain a specific
    reference to the ―Babri Masjid‖186:
    ―2. A pucca temple along with lands situated at JanambhumiBabri Masjid in Mohalla Ramkot, City Ayodhya, Pargana
    Haveli Awadh, Tehsil & Dist. Faizabad, whose boundaries are
    described as under:
    East : Parti & Kabristan (Graveyard)
    West: Babri Masjid
    North: Pucca Road
    South: Kabristan (Graveyard).‖
    The suit was between the Nirmohis inter se. The above document indicates that
    the existence of the mosque cannot be denied;
    (ii) After the riots which took place on 27 March 1934 on or about the occasion
    of Bakri-Eid, a portion of the mosque was destroyed. In that connection,
    there are documents relating to the repair of the premises:
    (a) Permission granted for cleaning of Babri Masjid and its use for
    religious services187;
    (b) Application of Mohd Zaki and others dated 5 June 1934 for the
    recovery of fines from the Bairagis for causing damage to the
    mosque188;

184 Exhibit A-4 – Suit 4
185 Exhibits A-5 – Suit 4
186 Exhibit A-6 – Suit 4
187 Exhibit A-49- Suit 1
188 Exhibit A-6- Suit 1
PART M
350
(c) The order of the District Magistrate dated 6 October 1934 for the
payment of compensation for the damage caused to the mosque189;
(d) Application of Tahawar Khan, the contractor, dated 25 February
1935 for the payment of his bills for the repair of the mosque190;
(e) The order of the Deputy Commissioner, Faizabad dated 26
February 1935 for inspection of the work done by the SDM Sadar
prior to payment of bills for the repair of the mosque191;
(f) Estimate of repairs submitted by the contractor on 15 April 1935
including the repair of the domes192;
(g) An application of the contractor dated 16 April 1935 in regard to the
delay in the completion of work. The letter stated that the repair to
the dome was under preparation as were the marble tablets with the
inscriptions of Allah193;
(h) Inspection note dated 21 November 1935 of the Assistant Engineer,
Public Works Department, Faizabad regarding repair of Babri
Masjid, noting that the work was inspected and found to be
satisfactory194;
(i) Report of the bill clerk dated 27 January 1936 on the bill of the
contractor regarding the repair of the mosque195;
(j) Order of Mr A D Dixon dated 29 January 1936 regarding payment
for the work of repair of Babri Masjid196; and

189 Exhibit A-43- Suit 1
190 Exhibit –A- 51 – Suit 1
191 Exhibit A-45- Suit 1
192 Exhibit –A-44- Suit 1
193 Exhibit –A-50- Suit 1
194 Exhibit A-48- Suit 1
195 Exhibit A-46 – Suit 1
PART M
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(k) Application of the contractor dated 30 April 1936 complaining of the
deductions made from his bill for the repair of Babri Masjid.197
The above documents which have been duly exhibited indicate that following the
riots of 1934, a Muslim contractor was engaged for the repairs of the Babri
Masjid. There is a reference to the damage sustained by the mosque and to the
work of restoration that was carried out by the contractor.

  1. Besides the documentary evidence relating to repair, another set of
    documents relates to the services of the Imam at Babri Masjid:
    (i) An agreement/undertaking was executed by Syed Mohd Zaki, trustee of
    Babri Masjid on 25 July 1936 in favour of the Maulvi Abdul Ghaffar, Pesh
    Imam of Babri Masjid regarding the payment of his outstanding salary until
    1935198;
    (ii) Application of Syed Mohd Zaki dated 19/20 July 1938 before the Waqf
    Commissioner in response to a notice under Section 4 of the Muslim Waqf
    Act 1936199;
    (iii) Application of Abdul Ghaffar, Pesh Imam Babri Masjid dated 20 August
    1938 before the Waqf Commissioner, Faizabad, seeking a direction to the
    Mutawalli for the payment of the arrears of his salary due upto 31 July
    1938200;

196 Exhibit A-47- Suit 1
197 Exhibit A-52- Suit 1
198 Exhibit A-7- Suit 1
199 Exhibit A- 67- Suit 1
200 Exhibit A- 61- Suit 1
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(iv) Reply of the brother of Syed Mohd Zaki (the former Mutawalli) dated 20
November 1943 to the notice of the Sunni Waqf Board dated 27 October
1943.201 The letter contains a clear reference to the arrangement made for
maintaining the daily needs for the mosque as well as the requirements for
Friday prayers:
―That mat, floor cloth and janamaaz – prayer rug etc. are kept
sufficient for daily needs only. Other floor cloth and prayer
rugs are kept with the Maulavi Abdul Ghaffar, Pesh Imam.
These are brought to the mosque on every Friday and are
kept back in the same place after Jumah prayers because
floor cloth often gets stolen from the masjid. It is for the
reason that all mats and floor cloth are not kept in the masjid.‖
(v) Notice dated 11 April 1945 of the Shia Waqf Board to the Sunni Waqf
Board before instituting a suit under Section 5(2) of the UP Muslim Waqf
Act 1936, challenging the notification dated 26 February 1944 declaring
the mosque as a Sunni Waqf202;
(vi) Notice dated 25 November 1948 of the Secretary, Sunni Waqf Board about
charge of Tauliat due to the death of the Mutawalli203;
(vii) The report of the Waqf Inspector dated 10/12 December 1949 regarding
the harassment of Muslims while going for prayers204; and
(viii) Report of Waqf Inspector dated 23 December 1949 in regard to the
condition of Babri Masjid, stating that keys remained with the Muslims and
only Friday prayers were being offered205:
―I had to inquire into the present condition of Babri Masjid
Ayodhya and Qabrastan (graveyard) on 22nd December, 49 I
spent the whole day making inquiry. My inquiry made me

201 Exhibit A-66- Suit 1
202 Exhibit A-65- Suit 1
203 Exhibit A-62- Suit 1
204 Exhibit A-63- Suit 1
205 Exhibit A-64- Suit 1
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aware about the following conditions and events. A period of
three months has elapsed to the arrival of Baba Raghunath
ostensibly to visit the janamasthan. He exhorted the Beragis
and Pujaris – worshippers forcefully that Ramayanpath –
recitation of Ramayan – should be done at janmasthan. This
message spread to all nearby and surrounding areas. After a
month of the departure of Baba Raghubardas, thousands of
Hindus and Pujaris and Pandits gathered there for Ramayan
path. The path (recitation) went on for weeks. In the
meantime the Beragis dug outside the front part of the Masjid
and part of Qabrasthan and leveled it to the ground. They
also erected a makeshift maker and put stones on the site of
some graves. There was police bandobast at the time of
recitation of Ramayan. Despite this, the graves were dug out.
Police arrested four people who were later released on bond.
Khawaja Rahmatullah‘s mausoleum which is nearby the
graveyard on a rising mound has also been dug out and
levelled to the ground. A Bairagi has started residing there.
The Bairagis‘ are squatting near the pucca grave which is
near the door of the courtyard adjacent to the walls of the
Masjid. The Bairagis have erected a hut. Before the
commencement of this recitation, the Bairagis had looted and
broken the fence. The muezzin was thrashed and thereafter
they tried to dug out the inscription on the Masjid. Two
Muslims who were strangers were beaten and they suffered
serious injuries. Now there are two camps outside the Masjid.
In one of them are stationed police constables and in another
sepoys of the battalions. The total numbers of (constables
and sepyoys) is about 7 to 8. Now the Masjid remains locked.
No Azaan is allowed nor Namaaz performed except on
the day and time of Jumaaah. The lock and the keys
remain with Muslims. But the police do not allow them to
open the lock. The lock is opened on the day of Jumaah,
i.e. Friday for two or three hours. During this period, the
Masjid is cleaned and Jumaah prayers are offered.
Thereafter it is locked as usual. At the time of Jummah
much noise is created. When the Namazis go downstairs,
shoes and clouds of earth are thrown at them. But
Muslims do not react to it out of fear. After Raghavdas, Mr
Lohia had also come to Ayodhya and he had addressed
people saying that flower plants should be planted on the
place of graves. A minister also came from Lucknow. The
Bairagis told him that Masjid is the Janmbhoomi. Help us get
it. He refused to do this by force. Hearing this Bairagis got
angry with him, and he had to return to Faizabad under Police
protection. In the meantime, in the Kanak Bhavan Mandir of
Ayodhya, Mahant Babasthan, Mahant Raghubardas,
Vedantiji, Narayan Das, Acharyaji wanted to call Muslims but
none came out there with the exception of Zahoor Ahmad.
Hindus asked Zahoor Ahmad to help them get the Masjid. He
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was told that if it is done then we are brothers, otherwise, we
are enemies. I stayed at Ayodhya during night. In the morning
I came to know that Bairagis are trying to occupy the Masjid
forcibly. It is Jumaah-Friday –today. When I reached the site,
10 to 15 Bairagis with clubs and axes were found present in
the courtyard of the Masjid and many Bairagis are sitting on
the door of the Masjid with clubs. Hindus of the surrounding
area are also gathering there. City Magistrate, Police Officer
of the City and other police force is deployed in sufficient
numbers. Muslims from Faizabad would certainly come to
offer of Jumaah (Friday) prayers. What would be their fate I
do not know. Now I am crossing the river and going to
Lakkadmandi Gonda.‖ (Emphasis supplied)
Justice Sudhir Agarwal held that the undertaking/agreement206 for the payment of
salary including arrears to the Pesh Imam has not been proved. Besides being
exhibited in evidence, this document finds a reference in an application by the
Pesh Imam before the Waqf Inspector for the payment of his salary in terms of
the agreement, a copy of which was filed with the application.207 As regards the
reports of the Waqf Inspector, the written submissions filed on behalf of the
Nirmohi Akhara in fact rely on both the reports. The reason indicated by Justice
Sudhir Agarwal for not relying on the reports – that no one has seen the Waqf
Inspector is specious. The report dated 10/12 December 1949 has been
specifically relied upon in the plaint in Suit 5 and in the Examination-in-Chief of
plaintiff 3 in Suit 5.

  1. The above documents demonstrate:
    (i) The steps taken after the riots of 1934 for the restoration of the mosque;
    (ii) The repairs carried out by the contractor for repairing the mosque and
    payments made by Public Works Department;

206 Exhibit A-7- Suit 1
207 Exhibit A-61
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(iii) The engagement of services of the Pesh Imam and the attendant dispute
pertaining to non-payment of his arrears of salary;
(iv) The report of the Waqf Inspector in December 1949 stating that the
Muslims were being harassed in offering prayers in the mosque as a result
of which only Friday prayers were being offered; and
(v) The apprehension expressed by the Waqf Inspector of danger to the
mosque.

  1. In view of the above analysis of the oral evidence and documentary
    material, the following conclusions can be drawn:
    (i) There are serious infirmities in the oral accounts of Nirmohi witnesses that
    the disputed structure was not a mosque but the Janmabhumi temple;
    (ii) The documentary evidence relied on by Nirmohi Akhara does not establish
    its possession of the inner courtyard and the structure of the mosque
    within it, being the subject of Suit 3;
    (iii) Contrary to the claims of Nirmohi Akhara, documentary evidence
    establishes the existence of the structure of the mosque between 1934
    and 1949; and
    (iv) As regards namaz within the mosque, the Muslims were being obstructed
    in offering prayers as a result of which by December 1949, Friday prayers
    alone were being offered.
    This documentary evidence in regard to the presence and use of the mosque
    until December 1949 is supported by the letter of the Superintendent of Police,
    Faizabad dated 29 November 1949 specifically, referring to the attempts which
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    were being made to surround the mosque so as to lead the Muslims to abandon
    it. This is coupled with the letter dated 16 December 1949 of the District
    Magistrate to the Chief Secretary seeking to allay the apprehensions in regard to
    the safety of the mosque.
  2. Suit 3 has been held to be barred by limitation. The oral and documentary
    evidence have been analysed above to render a full adjudication of the claims of
    Nirmohi Akhara: (i) denying the existence of the mosque; (ii) asserting that the
    structure in the inner courtyard was a temple which was in its exclusive
    possession; and (iii) denying the incident on the night between 22/23 December
  3. Nirmohi Akhara has failed to prove its assertions. The documentary
    evidence will be of relevance in determining the objections raised by Nirmohi
    Akhara (supported by the Sunni Central Waqf Board) to the maintainability of Suit
  4. Whether Nirmohi Akhara has established that they were a shebait in service of
    the deity of Lord Ram was an issue struck in Suit 5 and will hence be considered
    while dealing with that suit. Some of the evidence which has been discussed
    above is also of relevance on the question of title and will be re-visited at the
    appropriate stage in the course of this judgment.
    N. Suit 5: The deities
    N.1 Array of parties
  5. Suit 5 was instituted on behalf of the first and second plaintiffs through a
    next friend who was impleaded as the third plaintiff. The first and second plaintiffs
    are: ―Bhagwan Sri Ram Lala Virajman‖ and ―Asthan Sri Ram Janma Bhumi,
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    Ayodhya‖. The third plaintiff was Sri Deoki Nandan Agarwala, a former Judge of
    the Allahabad High Court. The third plaintiff was subsequently substituted by an
    order of the High Court as a result of his death.
  6. The first defendant is the legal representative of Gopal Singh Visharad (the
    plaintiff in Suit 1); the second defendant was the plaintiff in Suit 2 (which was
    subsequently withdrawn); the third defendant is Nirmohi Akhara (the plaintiff in
    Suit 3); the fourth defendant is the Sunni Central Waqf Board (the plaintiff in Suit
    4); the fifth and sixth defendants are Muslim residents of Ayodhya and Faizabad;
    the seventh, eighth, ninth and tenth defendants are the State of Uttar Pradesh
    and its officers; the eleventh defendant is the President of the All India Hindu
    Mahasabha; the twelfth and thirteenth defendants represent the All India Arya
    Samaj and the All India Sanatan Dharma Sabha respectively; the fourteenth
    defendant was Sri Dharam Das, described as the Chela of Baba Abhiram Das,
    who was allegedly involved in the incident which took place on 22/23 December
    1949; defendants fifteen and sixteen are Hindu residents of Ayodhya and
    Faizabad; defendant seventeen was a resident of District Faizabad (since
    deleted); defendants eighteen and nineteen are Mahant Ganga Das and Swami
    Govindacharya Manas Martand; defendant twenty was Umesh Chandra Pandey
    who opposed the claim of the Nirmohi Akhara in Suit 3 (but did not lead any
    evidence); defendant twenty-one is described as the ―Sri Ram Janma Bhumi
    Nyas‖, a trust which has been impleaded through its managing trustee Sri Ashok
    Singhal; defendants twenty-two to twenty-five are the Shia Central Board of
    Waqfs, individuals representing the Shias; defendant twenty-six is the General
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    Secretary of the Jamaitul Ulema Hind U P and defendant twenty-seven is a
    Muslim resident of Faizabad.
    N.2 No contest by the State of Uttar Pradesh
  7. The State of Uttar Pradesh filed a statement (in Suit 4 of 1989) stating that
    ―the government is not interested in the properties in dispute‖ and the actions of
    the officials in regard to the properties in dispute were bona fide in due discharge
    of their official duties.
    N.3 Pleadings
  8. The plaint in Suit 5 proceeds on the foundation that the first and second
    plaintiffs ―are juridical persons with Bhagwan Sri Rama as a presiding deity of the
    place‖. The third plaintiff is described as a ‗Vaishnava Hindu‘. The plaint adopts
    for its description of Ram Janmabhumi, ―two site plans of the building premises
    and of the adjacent area known as Sri Ram Janma Bhumi prepared by Shiv
    Shankar Lal‖ in discharge of his duty as a Commissioner appointed by the Court
    of the Civil Judge, Faizabad in Suit 1. These site plans together with his report
    are Annexures I, II and III to the plaint.
  9. After setting out a history of the earlier suits instituted before the civil
    court208
    and the proceedings under Section 145, the plaint states that these suits
    continue to remain pending ―with a dim prospect of their immediate hearing‖.
    Though, the seva and puja of the plaintiff deities is stated to have been carried

208 Suit 2 of 1950, Suit 25 of 1950, Suit 26 of 1959 and Suit 12 of 1961
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out properly, it has been stated that darshan has been allowed only from behind
a barrier for Hindu devotees. The plaintiff deities and devotees are stated to be
―extremely unhappy‖ with the delay in the disposal of the suits, the deterioration
in the management of the affairs of the temple and with the alleged
misappropriation of the offerings of worshippers by pujaris and other temple staff.
The Hindu devotees, it has been stated, are desirous of having a new temple
constructed after removing the existing structure at Ram Janmabhumi. According
to the plaint, the head of the Ramananda Sampradaya was entrusted with the
task of addressing the mismanagement of the temple and facilitating the
construction of a new temple. This eventually led to the Deed of Trust dated 18
December 1985 which was registered with the Sub-Registrar. The trust has been
named the ―Sri Ram Janma Bhumi Nyas‖ and consists of ten trustees. In
addition, the Vishva Hindu Parishad, through its Marga Darshak Mandal is to
nominate four trustees, which it did. Further, five trustees have been nominated
from amongst ―eminent Hindu citizens of India‖. Of the aforesaid five persons, the
third plaintiff was nominated as one of the trustees. Ram Janmabhumi Nyas is
stated to be directly interested in the seva-puja and other affairs of the plaintiff
deities. The plaintiffs further indicate that the existing suits ―are inadequate‖ and
cannot result in a settlement of the dispute as neither the presiding deity,
Bhagwan Sri Ram Virajman, nor Asthan Sri Ram Janma Bhumi (both of whom
are stated to be juridical persons) were impleaded in the previous suits.
Moreover, it is alleged that some of the parties to the earlier suits are ―to some
extent‖ involved in seeking to gratify their personal interest by obtaining control
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over worship of the plaintiff deities. In this background, the plaintiffs have
instituted a suit of their own.

  1. The plaint states that it is established by ―unimpeachable authority‖ that the
    premises in dispute represent the place where Lord Ram was born. The second
    plaintiff, described as ―Asthan Sri Ram Janma Bhumi‖, is stated to be an
    independent object of worship, worshipped by the devotees as personifying the
    divine spirit of Lord Ram. Hence, it has been averred that the land at Ram
    Janmabhumi has possessed a juridical personality even prior to the construction
    of the existing structure or the installation of idols within the central dome. It has
    been stated that Hindus worship not merely the material form or shape of an idol
    but the divine spirit which is invoked by consecration or prana pratishtha. It is
    stated that the divine spirit is worshipped as a deity at the site of the second
    plaintiff and hence it has been submitted that the place itself is a deity. The deity,
    it has been submitted, being indestructible, continues to exist so long as the
    place exists, and the place being land, continues to exist irrespective of any
    construction on it.
  2. The plaint proceeds to rely on the 1928 edition of the Faizabad Gazetteer,
    in support of the plea that the ancient temple, called the Ram Janmabhumi
    temple, was destroyed by Babur in 1528 and on its site, a mosque was built
    largely with the materials of the destroyed temple, including the Kasauti pillars.
    Yet, according to the plaint, the worshippers continued to worship Lord Ram
    through symbols such as the Charan and Sita Rasoi and the idol of Lord Ram on
    the Ramchabutra within the enclosure. It has been submitted that no one could
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    enter the building except after passing through areas where Hindus worshipped.
    The plaint disputes whether a mosque could validly be constructed in accordance
    with Islamic tenets on the site of a Hindu temple which is surrounded by Hindu
    places of worship. According to the plaintiffs, worshippers of the deities have
    continued to pray at Ram Janmabhumi for centuries; the place belongs to the
    deities and no valid waqf was ever created or could have been created. Despite
    occasional trespass by the Muslim residents, it has been stated that title and
    possession vested in the plaintiff deities. It is alleged that no prayers were offered
    at the mosque. After independence, the graves surrounding Ram Janmabhumi
    were dug up by the Bairagis and eventually on the night of 22/23 December
    1949, an idol of Lord Ram was installed with due ceremony under the central
    dome of the disputed building. This was followed by proceedings under Section
    145 to which the plaintiff deities were not parties. In the alternate to the plea of
    the original title vesting in the plaintiff deities, it has been stated that the deities
    have been in possession and any claim of title adverse to the deities stands
    extinguished by adverse possession.
  3. The plaint sets out that Hindu devotees were desirous of constructing a
    temple at the disputed site and, the ―active movement‖ was scheduled to
    commence from 30 September 1989 with the foundation stone being laid on 9
    November 1989. Nirmohi Akhara, it has been stated, has put forward a personal
    interest in the management of the worship of the plaintiff-deities and there being
    no other fit person to represent them, the third plaintiff has instituted the suit as
    next friend. It is averred that in order to remove any obstacles in the fulfilment of
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    the movement to construct a new temple, the entire premises at the disputed site
    constitute ―one integral complex‖ with ―a single identity‖. The claim of the
    Muslims is stated to be confined to the enclosure within the inner boundary wall.
    The plaint was amended after the demolition of Babri Masjid in 1992 to
    incorporate averments pertaining to the circumstances prior to, during and
    following the demolition. According to the plaintiffs, shebaiti rights were taken
    away and entrusted to the statutory receiver following the enactment of the
    acquisition ordinance and the law enacted by Parliament.
    The cause of action for the institution of the suit is stated to have accrued ―from
    day to day‖ especially when the plans for construction of a new temple were
    alleged to be obstructed by violent action on the part of certain Muslims.
    On the above pleadings, two reliefs have been sought in Suit 5:
    (a) A declaration that the entire premises of Sri Ram Janmabhumi described
    in Annexures I, II and III belong to the plaintiff-deities; and
    (b) A permanent injunction prohibiting the defendants from interfering with or
    obstructing the construction of a new temple at Sri Ram Janmabhumi after
    the demolition and removal of the existing buildings and structures.
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    N.4 Written statements
    Nirmohi Akhara
  4. In response to Suit 5, Nirmohi Akhara filed its written statement submitting
    that the suit instituted through a next friend is malicious and is a ―design to
    damage the title and interest of the answering defendants‖. Nirmohi Akhara
    denies the locus of the next friend as the third plaintiff to represent the deities. It
    specifically denies the status of the second plaintiff as a juridical person.
    Bhagwan Sri Ram, according to Nirmohi Akhara is installed not at Ram
    Janmabhumi but in the temple known as the Janmabhumi temple for whose
    charge and management it has instituted Suit 3. According to the written
    statement, Asthan simply means a place and is not a juridical person. The third
    plaintiff, it has been asserted is not a worshipper of the deity and is a Vaishnavite
    and has no locus to represent the deity or the ―so-called Asthan‖. It has been
    urged that there was an attempt to mobilise a sum of Rs. 25 crores for the
    construction of a new temple. Nirmohi Akhara states that the birth-place of Lord
    Ram is not in dispute and it is located at Ayodhya where the Ram Janmabhumi
    temple stands. The Ram Janmabhumi temple is stated to be in the disputed land
    which the Muslims claim to be a mosque. Asthan Janmabhumi is stated to be the
    birth-place of Lord Ram comprising of the entire city of Ayodhya. Nirmohi Akhara
    has claimed that it is the shebait of the idol of Lord Ram installed in the temple in
    dispute and that it alone has the right to control, supervise, repair and reconstruct
    the temple. It has been submitted that Nirmohis‘ suit was filed in 1959, whereas,
    the Ram Janmabhumi Nyas has come into existence in 1985 ―with an obvious
    design to damage the title and interest of the Akhara‖. Nirmohi Akhara has
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    alleged that the idol of Lord Ram was always installed in the Ram Janmabhumi
    temple; that the temple belongs to it and no one else has the right to construct a
    new temple. Suit 5 has been opposed on the ground that the plaintiffs have ―no
    real title to sue‖ and that the suit is an encroachment on the rights of the Nirmohis
    to manage the temple. Hence, according to it, the disputed premises mentioned
    by the plaintiffs in Suit 5 belong to the Nirmohi Akhara and the plaintiffs cannot
    seek a declaration against the right and title of Nirmohi Akhara. Accordingly,
    Nirmohi Akhara has prayed for the dismissal of Suit 5.
    In its additional written statement, Nirmohi Akhara has stated that the outer
    Sahan (courtyard) ―carried a little temple‖ of Lord Ram which was regularly
    worshipped according to the customs prevailing among Ramanandi Bairagis. The
    outer part of this temple is stated to have been in the management and charge of
    Nirmohi Akhara as its shebait till the outer portion was attached on 16 February
    1982 in Regular Suit 239 of 1982. The outer portion, it has been stated, has been
    in possession and management of Nirmohi Akhara and the idol of Lord Ram
    installed on Ramchabutra is stated to be a distinct legal entity owned by Nirmohi
    Akhara. It has been submitted that the Magistrate‘s order of attachment under
    Section 145 pertained only to the three-domed structure where the idol of Lord
    Ram is stated to have been installed by Nirmohi Akhara from time immemorial
    and which was always in its management and possession. In a further written
    statement, Nirmohi Akhara has claimed that the constitution of the Ram
    Janmabhumi Nyas is illegal.
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    All India Hindu Mahasabha
  5. The President of the All India Hindu Mahasabha filed a written statement
    claiming that as a party to the Sri Ram Janmabhumi Nyas, it is directly dedicated
    to the seva-puja and other affairs of the Ram Janmabhumi temple.
    Sunni Central Waqf Board
  6. The Sunni Central Waqf Board has opposed the suit of the plaintiff-deities.
    In its written statement, it denies the juridical status of the first and second
    plaintiffs and the locus of the third plaintiff to act as a next friend. According to the
    Sunni Central Waqf Board, no deities were installed within the premises of Babri
    Masjid until the idol was surreptitiously brought in on the night between 22-23
    December 1949. The written statement denies the presence of a presiding deity
    or of ―any Asthan‖. Placing reliance on the dismissal of the Suit of 1885 instituted
    by Mahant Raghubar Das, it has been submitted that the plaintiffs cannot claim
    any portion of the Babri Masjid to have assumed a juridical personality by the
    name of ―Ashthan Ram Janmabhumi‖, particularly in the absence of the
    installation of a deity or a personification in accordance with the tenets of Hindu
    religion or law. The written statement contains a denial of the allegation that their
    existed any temple at the site of Babri Masjid or that the mosque was constructed
    after destroying it, with the material of the alleged temple. The mosque, it has
    been averred, has always been used as a mosque since its construction during
    the regime of Babur. The land is stated to have belonged to the State when it was
    constructed, and the mosque is claimed to have been built on vacant land. The
    Ramchabutra is alleged to have been created around 1857. The possession of
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    the Muslims is stated to have been uninterrupted and continuous since the
    construction of the mosque up to 23 December 1949 and hence, any right, title or
    interest to the contrary would stand extinguished by adverse possession.
    According to the written statement, regular prayers were offered in the mosque
    up to 22 December 1949 and Friday prayers until 16 December 1949. According
    to the written statement, the cause of action must be deemed to have accrued in
    December 1949 when the property was attached, and the Muslims denied the
    claim of the Hindus to perform puja in the mosque. Hence, the suit is stated to be
    barred by limitation.
  7. The fifth defendant209, in his written statement, has denied the locus of the
    Nyas. Besides this, it has been submitted that the premises have always been a
    mosque since its construction in the sixteenth century and were used by Muslims
    for offering namaz and for no other purpose. The fifth defendant denied the
    juridical status of the first and second plaintiffs and the locus of the third plaintiff.
    In an additional written statement filed jointly by the Sunni Central Waqf Board
    and the fifth defendant, the contents of the amended plaint have been denied and
    it has been urged that the claim in regard to the idols stood extinguished after
    they were removed on 6 December 1992.
    N.5 Issues and findings of the High Court
  8. The issues which were framed in the Suit and the findings of the three
    judges in the High Court are catalogued below:

209 Mohammad Hashim
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1 Whether the first and second plaintiffs are juridical persons.
 Justice S U Khan – The idol is duly capable of holding property.
 Justice Sudhir Agarwal – Answered in the affirmative – both plaintiffs
1 and 2 are juridical persons.
 Justice D V Sharma – Decided in favour of the plaintiffs.
2 Whether the suit in the name of deities described in the plaint as the
first and second plaintiffs is not maintainable through the third
plaintiff as next friend.
 Justice S U Khan – Followed the decision of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Suit held to be maintainable.
 Justice D V Sharma – Suit held to be maintainable.
3(a) Whether the idol in question was installed under the central dome of
the disputed building (since demolished) in the early hours of
December 23, 1949 as alleged by the plaintiff in paragraph 27 of the
plaint as clarified in their statement under Order X Rule 2 of the CPC.
 Justice S U Khan – The idols were placed inside the mosque for the
first time during the night of 22/23 December 1949.
 Justice Sudhir Agarwal – Answered in the affirmative.
 Justice D V Sharma – Answered in the affirmative.
3(b) Whether the same idol was reinstalled at the same place on a
Chabutra under the canopy.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the affirmative.
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 Justice D V Sharma – Answered in the affirmative.
3(c) Whether the idols were placed at the disputed site on or after 6
December 1992 in violation of the court‘s order dated 14 August 1989
and 15 November 1991.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the negative.
 Justice D V Sharma – Decided in favour of the plaintiffs.
3(d) If the aforesaid issue is answered in the affirmative, whether the idols
so placed still acquire the status of a deity.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the affirmative.
 Justice D V Sharma – Answered in the affirmative.
4 Whether the idols in question had been in existence under the
―Shikhar‖ prior to 6 December 1992 from time immemorial as alleged
in paragraph 44 of the additional written statement of Nirmohi Akhara
(the third defendant).
 Justice S U Khan – The idols were placed inside the mosque for the
first time on 22-23 December 1949.
 Justice Sudhir Agarwal – Answered in the negative; the idols under
the central dome were in existence prior to 6 December 1992 but
were placed during the night of 22-23 December 1949.
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 Justice D V Sharma – The idols were not under the central dome
prior to 22-23 December 1949.
5 Is the property in question properly identified and described in the
plaint.
 Justice S U Khan – No temple was demolished for constructing the
mosque. Until the mosque was constructed during the reign of Babur,
the premises were neither treated nor believed to be the birth-place of
Lord Ram.
 Justice Sudhir Agarwal – There is no ambiguity in the identification
or description of the property.
 Justice D V Sharma – Answered in favour of the plaintiffs.
6 Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their
next friend and is the suit not competent on this account.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the negative, in favour of the
plaintiffs.
 Justice D V Sharma – Decided in favour of the plaintiffs.
7 Whether Nirmohi Akhara (the third defendant) alone is entitled to
represent the first and second plaintiffs, and is the suit not
competent on that account as alleged in paragraph 49 of the
additional written statement of Nirmohi Akhara (the third defendant).
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
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 Justice Sudhir Agarwal – Answered in the negative against Nirmohi
Akhara, in favour of the plaintiffs.
 Justice D V Sharma – Answered against Nirmohi Akhara, in favour of the
plaintiffs.
8 Is the defendant Nirmohi Akhara the ―Shebait‖ of Bhagwan Sri Ram
installed in the disputed structure.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered against Nirmohi Akhara.
 Justice D V Sharma – Answered against Nirmohi Akhara, held that
Nirmohi Akhara is incompetent to represent the first and second plaintiffs.
9 Was the disputed structure a mosque known as Babri Masjid?
 Justice S U Khan – The mosque was constructed by or under the orders
of Babur. Until 1934, Muslims offered regular prayers and thereafter, until
22 December 1949 only Friday prayers were offered.
 Justice Sudhir Agarwal – Answered against the plaintiffs.
 Justice D V Sharma – Answered against the Sunni Central Waqf Board
and in favour of the plaintiffs.
10 Whether the disputed structure could be treated to be a mosque on
the allegations contained in paragraph 24 of the plaint.
 Justice S U Khan – The mosque was a valid mosque.
 Justice Sudhir Agarwal – Answered in the affirmative.
 Justice D V Sharma – The mosque was constructed upon demolition of
the temple.
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11 Whether on the averments made in paragraph 25 of the plaint, no
valid waqf was created in respect of the structure in dispute to
constitute it as a mosque.
 Justice S U Khan – The mosque is a valid mosque.
 Justice Sudhir Agarwal – Answered in the affirmative.
 Justice D V Sharma – No valid waqf with respect to the disputed property.
12 Deleted vide order dated 23 February 1996.
13 Whether the suit is barred by limitation.
 Justice S U Khan – The suit is not barred by limitation.
 Justice Sudhir Agarwal – The suit is not barred by limitation.
 Justice D V Sharma – The suit is not barred by limitation.
14 Whether the disputed structure claimed to be Babri Masjid was
erected after demolishing Janmasthan temple at its site.
 Justice S U Khan – No temple was demolished for the construction of the
mosque. Until the mosque was constructed during the reign of Babur, the
premises were not believed to be the birth-place of Lord Ram.
 Justice Sudhir Agarwal – Answered in the affirmative.
 Justice D V Sharma – Decided in favour of the plaintiffs, against the
Sunni Central Waqf Board.
15 Whether the disputed structure claimed to be Babri Masjid was
always used only by the Muslims regularly for offering namaz ever
since its alleged construction in 1528 A.D. to 22 December 1949 as
alleged by the defendants 4 and 5.
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 Justice S U Khan – Until 1934, Muslims were offering regular prayers in
the mosque. Thereafter, until 22 December 1949, only Friday prayers were
offered.
 Justice Sudhir Agarwal – At least from 1860, namaz was offered in the
inner courtyard. The last namaz was on 16 December 1949.
 Justice DV Sharma – Connected with Issue Nos. 1-B(c),
2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided
against the Sunni Central Waqf Board.
16 Whether the title of plaintiffs 1 and 2, if any, was extinguished as
alleged in paragraph 25 of the written statement of defendant 4. If
yes, have plaintiffs 1 and 2 reacquired title by adverse possession as
alleged in paragraph 29 of the plaint.
 Justice S U Khan – Both parties were in joint possession before 1855 and
hence, there was no need to decide the issue of adverse possession.
 Justice Sudhir Agarwal – The title of the first and second plaintiffs has
never been extinguished.
 Justice DV Sharma – Connected with Issue Nos. 1B-(c),
2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided
against the Sunni Central Waqf Board.
17 Deleted vide order dated 23 February 1996.
18 Whether the suit is barred by Section 34 of the Specific Relief Act as
alleged in paragraph 42 of the additional written statement of
defendant 3 and also as alleged in paragraph 47 of the written
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373
statement of defendant 4 and paragraph 62 of the written statement
of defendant 5.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the negative against the third,
fourth and fifth defendants.
 Justice D V Sharma – In favour of the plaintiffs, against the defendants.
19 Whether the suit is bad for non-joinder of necessary parties, as pleaded
in paragraph 43 of the additional written statement of defendant 3.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the negative.
 Justice D V Sharma – The suit held to maintainable.
20 Whether the alleged Trust creating the Nyas, defendant 21, is void on
the facts and grounds stated in paragraph 47 of the written statement
of defendant 3.
 Justice S U Khan – Not answered.
 Justice Sudhir Agarwal – Not answered.
 Justice D V Sharma – Answered in favour of the plaintiffs.
21 Whether the idols in question cannot be treated as deities as alleged
in paragraphs 1,11,12,21,22,27 and 41 of the written statement of
defendant 4 and in paragraph 1 of the written statement of defendant
5.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
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374
 Justice Sudhir Agarwal and Justice D V Sharma – Answered against the
Sunni Central Waqf Board and fifth defendant.
22 Whether the premises in question or any part thereof is by tradition,
belief and faith the birth-place of Lord Ram as alleged in paragraphs
19 and 20 of the plaint? If so, its effect.
 Justice S U Khan – Neither was any temple demolished for constructing
the mosque nor until the construction of the mosque were the premises
treated or believed to be birth-place of Lord Ram.
 Justice Sudhir Agarwal – The place of birth of Lord Ram as believed and
worshipped by Hindus is covered under the central dome of the threedomed structure in the inner courtyard of the premises in dispute.
 Justice D V Sharma – Connected with Issue Nos 1, 1(a), 1(b),1B-(b),
11,19(d),19(e) and 19(f) in Suit 4. Decided against the Sunni Central Waqf
Board.
23 Whether the judgment in Suit of 1885 filed by Mahant Raghubar Das
in the Court of Special Judge, Faizabad is binding upon the plaintiffs
by application of the principles of estoppel and res judicata as
alleged by the defendants 4 and 5.
 Justice S U Khan – Section 11 of the CPC is not attracted as virtually
nothing was decided in the Suit of 1885.
 Justice Sudhir Agarwal – Answered in the negative.
 Justice D V Sharma – Answered in favour of the plaintiffs.
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24 Whether worship has been done of the alleged plaintiff-deity on the
premises in the suit since time immemorial as alleged in paragraph
25 of the plaint.
 Justice S U Khan – Neither was any temple demolished for constructing
the mosque nor were the premises treated or believed to be the birth-place
of Lord Ram until the mosque was constructed.
 Justice Sudhir Agarwal – Worship of the first and second plaintiffs has
been since time immemorial: issue answered in the affirmative.
 Justice DV Sharma – Connected with Issue Nos. 1-B(c),
2,4,12,13,14,15,19(a),19(b),19(c), 27 & 28 of Suit 4. Answered against the
Sunni Central Waqf Board.
25 Whether the judgment and decree dated 30 March 1946 passed in
Suit no 29 of 1945 is not binding upon the plaintiffs as alleged by the
plaintiffs.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – The plaintiffs were not a party to the suit and
the judgment is therefore not binding on them.
 Justice DV Sharma – Decided in favour of the plaintiffs.
26 Whether the suit is bad for want of notice under Section 80 CPC as
alleged by the defendants 4 and 5.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in favour of the plaintiffs.
 Justice D V Sharma – Answered in favour of the plaintiffs.
PART N
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27 Whether the plea of suit being bad for want of notice under Section
80 CPC can be raised by defendants 4 and 5.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in favour of the plaintiffs.
 Justice D V Sharma – Answered in favour of the plaintiffs.
28 Whether the suit is bad for want of notice under Section 65 of the U.P.
Muslim Waqf Act 1960 as alleged by defendants 4 and 5. If so, its
effect.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – The provision is not applicable.
 Justice D V Sharma – Decided in favour of the plaintiffs.
29 Whether the plaintiffs are precluded from bringing the present suit on
account of dismissal of Suit 57 of 1978 (Bhagwan Sri Ram Lala v
State) of the Court of Munsif Sadar, Faizabad.
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal and Justice D V Sharma – Answered in favour of
the plaintiffs.
30 To what relief, if any, are plaintiffs or any of them entitled?
 Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – The suit was partly decreed in accordance with
the directions contained in paragraph 4566.
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 Justice D V Sharma – The plaintiffs were held entitled to relief and the
suit was decreed.

  1. Justice Sudhir Agarwal granted the following relief in the Suit:
    ―(i) It is declared that the area covered by the central dome of
    the three domed structure, i.e., the disputed structure being
    the deity of Bhagwan Ram Janamsthan and place of birth of
    Lord Rama as per faith and belief of the Hindus, belong to
    plaintiffs (Suit-5) and shall not be obstructed or interfered in
    any manner by the defendants. This area is shown by letters
    AA BB CC DD is Appendix 7 to this judgment.
    (ii) The area within the inner courtyard denoted by letters B C
    D L K J H G in Appendix 7 (excluding (i) above) belong to
    members of both the communities, i.e., Hindus (here
    plaintiffs, Suit-5) and Muslims since it was being used by both
    since decades and centuries. It is, however, made clear that
    for the purpose of share of plaintiffs, Suit-5 under this
    direction the area which is covered by (i) above shall also be
    included.
    (iii) The area covered by the structures, namely, Ram
    Chabutra, (EE FF GG HH in Appendix 7), Sita Rasoi (MM NN
    OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
    7) in the outer courtyard is declared in the share of Nirmohi
    Akhara (defendant no. 3) and they shall be entitled to
    possession thereof in the absence of any person with better
    title.
    (iv) The open area within the outer courtyard (A G H J K L E F
    in Appendix 7) (except that covered by (iii) above) shall be
    shared by Nirmohi Akhara (defendant no. 3) and plaintiffs
    (Suit-5) since it has been generally used by the Hindu people
    for worship at both places.
    (iv-a) It is however made clear that the share of muslim
    parties shall not be less than one third (1/3) of the total area
    of the premises and if necessary it may be given some area
    of outer courtyard. It is also made clear that while making
    partition by metes and bounds, if some minor adjustments are
    to be made with respect to the share of different parties, the
    affected party may be compensated by allotting the requisite
    land from the area which is under acquisition of the
    Government of India.
    (v) The land which is available with the Government of India
    acquired under Ayodhya Act 1993 for providing it to the
    parties who are successful in the suit for better enjoyment of
    the property shall be made available to the above concerned
    parties in such manner so that all the three parties may utilise
    the area to which they are entitled to, by having separate
    PART N
    378
    entry for egress and ingress of the people without disturbing
    each others rights. For this purpose the concerned parties
    may approach the Government of India who shall act in
    accordance with the above directions and also as contained
    in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).
    (vi) A decree, partly preliminary and partly final, to the effect
    as said above (i to v) is passed. Suit-5 is decreed in part to
    the above extent. The parties are at liberty to file their
    suggestions for actual partition of the property in dispute in
    the manner as directed above by metes and bounds by
    submitting an application to this effect to the Officer on
    Special Duty, Ayodhya Bench at Lucknow or the Registrar,
    Lucknow Bench, Lucknow, as the case may be.
    (vii) For a period of three months or unless directed
    otherwise, whichever is earlier, the parties shall maintain
    status quo as on today in respect of property in dispute.‖
    Justice S U Khan issued the following directions:
    ―Accordingly, all the three sets of parties, i.e. Muslims, Hindus
    and Nirmohi Akhara are declared joint title holders of the
    property/ premises in dispute as described by letters A B C D
    E F in the map Plan-I prepared by Sri Shiv Shanker Lal,
    Pleader/ Commissioner appointed by Court in Suit No.1 to the
    extent of one third share each for using and managing the
    same for worshipping. A preliminary decree to this effect is
    passed.
    However, it is further declared that the portion below the
    central dome where at present the idol is kept in makeshift
    temple will be allotted to Hindus in final decree.
    It is further directed that Nirmohi Akhara will be allotted share
    including that part which is shown by the words Ram
    Chabutra and Sita Rasoi in the said map.
    It is further clarified that even though all the three parties are
    declared to have one third share each, however if while
    allotting exact portions some minor adjustment in the share is
    to be made then the same will be made and the adversely
    affected party may be compensated by allotting some portion
    of the adjoining land which has been acquired by the Central
    Government.
    The parties are at liberty to file their suggestions for actual
    partition by metes and bounds within three months.‖
    Justice D V Sharma decreed the suit of the plaintiffs in the following terms:
    ―Plaintiffs’ suit is decreed but with easy costs. It is hereby
    declared that the entire premises of Sri Ram Janm Bhumi at
    Ayodhya as described and delineated in annexure nos. 1 and
    PART N
    379
    2 of the plaint belong to the plaintiff nos. 1 and 2, the deities.
    The defendants are permanently restrained from interfering
    with, or raising any objection to, or placing any obstruction in
    the construction of the temple at Ram Janm Bhumi Ayodhya
    at the site, referred to in the plaint.‖
    N.6 Shebaits: an exclusive right to sue?
    The role and position of a shebait
  2. Courts recognise a Hindu idol as the material embodiment of a testator‘s
    pious purpose. Juristic personality can also be conferred on a Swayambhu deity
    which is a self-manifestation in nature. An idol is a juristic person in which title to
    the endowed property vests. The idol does not enjoy possession of the property
    in the same manner as do natural persons. The property vests in the idol only in
    an ideal sense. The idol must act through some human agency which will
    manage its properties, arrange for the performance of ceremonies associated
    with worship and take steps to protect the endowment, inter alia by bringing
    proceedings on behalf of the idol. The shebait is the human person who
    discharges this role.
  3. Nirmohi Akhara has instituted Suit 3 on the ground that it is the shebait of
    the deities of Lord Ram at the disputed site. Whether or not Nirmohi Akhara is a
    shebait, has a material bearing on the determination of rights inter se between
    the parties in Suits 3 and 5. To adjudicate on this controversy, it is necessary to
    analyse the position of a shebait in our law.
    PART N
    380
  4. An early decision was rendered by the Privy Council in Posunno Kumari
    Debya v Golab Chand Baboo.
    210 A suit was instituted by the shebaits of an idol
    against their immediate predecessor to set aside two execution decrees directing
    the sale of the property. Analysing whether the actions of a shebait binds
    subsequent shebaits, the Privy Council, speaking through Justice ME Smith held:
    ―It would seem to follow that the person so entrusted must, of
    necessity, be empowered to do whatever may be required for
    the service of the idol and for the benefit and preservation of
    its property, at least to as great a degree as the manager of
    an infant heir. If this were not so, the estate of the idol might
    be destroyed or wasted, and its worship discontinued for want
    of necessary funds to preserve and maintain them.‖
    The Privy Council summarised in the above extract the true function and purpose
    underlying the concept of a shebait. Since, the dedicated property vests in an idol
    in an ideal sense, the shebait is entrusted with its management. An idol cannot
    personally take actions required for the benefit and preservation of its property.
    The idol must necessarily act through a human agent and it is for this reason that
    the manager of the idol is conferred by law with the status of a shebait. The law
    recognises the legal personality of the idol to facilitate the protection of the rights
    and the duties owed to the idol. The natural personality of the shebait is the
    human agency through which the needs and concerns of the idol are fulfilled.
  5. The law expounded in 1875 by the Privy Council has found resonance in a
    decision of this Court in 1979. In Profulla Chorone Requitte v Satya Chorone
    Requitte211
    , a question arose whether it was the founder‘s intention to confer the

210 (1875) 14 L Beng LR 450
211 (1979) 3 SCC 409
PART N
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status of a shebait upon the person designated as trustees in his will. Justice RS
Sarkaria, speaking for a two judge Bench of this Court held:
―20. … Property dedicated to an idol vests in it in an ideal
sense only; ex necessitas, the possession and management
has to be entrusted to some human agent. Such an agent of
the idol is known as shebait in Northern India. The legal
character of a shebait cannot be defined with precision and
exactitude. Broadly described, he is the human ministrant and
custodian of the idol, its earthly spokesman, its authorised
representative entitled to deal with all its temporal affairs and
to manage its property.‖

  1. The recognition of a person or a group of persons as shebaits is a
    substantive conferment of the right to manage the affairs of the deity. A
    necessary adjunct of the status of a shebait, is the right to brings actions on the
    behalf of an idol and bind it and its properties to the outcomes. The purpose for
    which legal personality is conferred upon an idol as the material embodiment of
    the pious purpose is protected and realised through the actions of the human
    agent, that is the shebait. The shebait is entrusted with the power and the duty to
    carry out the purpose of the donor in respect of the idol and its properties. In the
    vast majority of cases, a shebait is appointed in accordance with the terms of a
    deed of dedication by which property is endowed to an idol. It is for the protection
    of this property that the law recognises either the donor or a person named in the
    deed of endowment as the shebait. In the absence of an expressly appointed or
    identified shebait, the law has ensured the protection of the properties of the idol
    by the recognition of a de facto shebait. Where a person is in complete and
    continuous management of the deity‘s affairs coupled with long, exclusive and
    uninterrupted possession of the appurtenant property, such a person may be
    PART N
    382
    recognised as a shebait despite the absence of a legal title to the rights of a
    shebait. This will be adverted to in the course of the judgement.
  2. The position of a shebait in Hindu Law is distinct from the position of a
    trustee in English Law. Before the Privy Council in Vidya Varuthi Thirtha v
    Balusami Ayyar212 the question was whether the terms ―conveyed in trust‖ and
    ―trustee‖ as they appear in Article 134 of the Limitation Act 1908 apply to
    properties endowed to the Mahant of a Hindu mutt. The Privy Council rejected
    the contention that persons managing endowed properties are in the position of
    trustees under English Law. Justice Ameer Ali held:
    ―It is also to be remembered that a ―trust‖ in the sense in
    which the expression is used in English Law, is unknown in
    the Hindu system, pure and simple. Hindu piety found
    expression in gifts to idols and images consecrated and
    installed in temples, to religious institutions of every
    kind….Religious institutions, known under different names,
    and regarded as possessing the same ―juristic‖ capacity, and
    gifts are made to them eo nomine …When the gift is
    directly to an idol or a temple, the seisin to complete the
    gift is necessarily effected by human agency. Called by
    whatever name, he is only the manager and custodian of
    the idol of the institution. In no case was the property
    conveyed to or vested in him, nor is he a ‗trustee‘ in the
    English sense of the term, although in view of the
    obligations and duties vesting on him, he is answerable
    as a trustee in the general sense, for maladministration…it would follow that an alienation by a
    manager or superior by whatever name called cannot be
    treated as the act of a ―trustee‖ to whom property has
    been ―conveyed in trust‖ and who by virtue thereof has
    the capacity vested in him which is possessed by a
    ―trustee‖ in English law.‖

    …Neither under the Hindu law nor in the Mahomedan system
    is any property ‗conveyed‘ to a shebait or a mutavalli in the
    case of a dedication. Nor is any property vested in him,
    whatever property he holds for the idol or the institution he

212AIR 1922 PC 123
PART N
383
holds as manager with certain beneficial interest regulated by
custom and usage.‖
(Emphasis supplied)

  1. The decision in Vidya Varuthi affirms the distinction between the position
    of a shebait in Hindu Law and a trustee in English Law. Unlike in the case of a
    trust, dedicated property does not legally vest in the shebait. The purpose for
    which property is dedicated to an idol is executed and protected by the shebait.
    Though the dedicated property does not vest in the shebait, they are responsible
    for managing the properties and are answerable in law for any mismanagement
    of the endowed properties. The shebait holds the property of an idol for the
    benefit of the idol. There is thus a distinction between the proprietary right of a
    trustee in English law and a shebait in Hindu Law. Chief Justice B K Mukherjea,
    in his seminal work ―Hindu Law of Religious Charitable Trusts‖ states:
    ―In English law the legal estate in the trust property vests in
    the trustee who holds it for the benefit of the cestui que trust.
    In a Hindu religions endowment, the entire ownership of the
    dedicated property is transferred to the deity or the institution
    itself as a juristic person, and the Shebait or Mahant is a mere
    manager.‖213
    The above distinction was affirmed by this Court in Profulla Chorone. In dealing
    with the concept of a shebait, Justice RS Sarkaria held:
    ―As regards the administration of the debutter, his position is
    analogous to that of a trustee; yet, he is not precisely in the
    position of a trustee in the English sense, because under
    Hindu Law, property absolutely dedicated to an idol,
    vests in the idol, and not in the shebait. Although the
    debutter never vests in the shebait, yet, peculiarly enough,
    almost in every case, the shebait has a right to a part of the
    usufruct, the mode of enjoyment, and the amount of the

213 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at page 204
PART N
384
usufruct depending again on usage and custom, if not
devised by the founder.‖
(Emphasis supplied)

  1. These observations affirm that the position of a shebait is distinct from that
    of a trustee in English law. The dedicated property legally vests in the idol in an
    ideal sense and not in the shebait. A shebait does not bring an action for the
    recovery of the property in a personal capacity but on behalf of the idol for the
    protection of the idol‘s dedicated property. Ordinarily, a deed of dedication will not
    contain a provision for the duties of the shebait. However, an express stipulation
    or even its absence does not mean that the property of the idol vests in the
    shebait. Though the property does not legally vest in the shebait, the shebait may
    have some interest in the usufruct generated from it. Appurtenant to the duties of
    a shebait, this interest is reflected in the nature of the office of a shebait.
  2. In Manohar Mukherji v Bhupendranath Mukherji214
    , the question before
    a Full Bench of the Calcutta High Court was whether shebaitship in Hindu law is
    property or an office to which the founder of an endowment is competent to
    appoint or nominate persons in any order of succession. Surveying the
    precedent, Justice Mukerji held:
    ―…I can find no authority for the proposition that the limited
    ownership which a shebait, in ordinary cases, exercises over
    debuttor property is not property in the eye of Hindu law…
    having regard to the rights which ordinarily attach to the
    office of a shebait, the office and the property of the
    endowment go together and that when it is a question
    between two persons one claiming and the other
    disputing a right to be the shebait, the question is a
    question of property…The religious office itself, of course,
    cannot be the object of sale, and jewels and other materials

214 ILR (1933) 60 Cal 452
PART N
385
used in religious worship, to the custody of which the alleged
vendor is entitled and to the careful custody of which he is
bound, are by all systems of law and by Hindu law more
emphatically than by another, absolutely extra commercium.‖
(Emphasis supplied)

  1. In addition to the duties that must be discharged in relation to the debutter
    property, a shebait may have an interest in the usufruct of the debutter property.
    In this view, shebaitship is not an office simpliciter, but is also property for the
    purposes of devolution.215 This view has been affirmed by this Court in
    Angurbala Mullick v Debabrata Mullick216. The controversy in that case was
    whether the appellant, as the widow of the shebait, was entitled to act as the
    shebait of the idol instead of the minor son of the shebait borne from his first
    marriage who was the respondent. It was contended that the office of shebaitship
    would devolve in accordance with the Hindu Women‘s Right to Property Act
  2. Justice BK Mukherjea speaking for a four judge Bench of this Court
    accepted this contention and held:
    ―12…But though a shebait is a manager and not a trustee in
    the technical sense, it would not be correct to describe the
    shebaitship as a mere office. The shebait has not only duties
    to discharge in connection with the endowment, but he has a
    beneficial interest in the debutter property. As the Judicial
    Committee observed in the above case, in almost all such
    endowments the shebait has a share in the usufruct of the
    debutter property which depends upon the terms of the grant
    or upon custom or usage. Even where no emoluments are
    attached to the office of the shebait, he enjoys some sort of
    right or interest in the endowed property which partially at
    least has the character of a proprietary right. Thus, in the
    conception of shebaiti both the elements of office and
    property, of duties and personal interest, are mixed up and
    blended together; and one of the elements cannot be
    detached from the other. It is the presence of this personal or

215 Approved by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur (1935-36) 63 IA 448, and
Bhabatarini Debi v Ashalata Debi (1942-43) 70 IA 57
2161951 SCR 1125
PART N
386
beneficial interest in the endowed property which invests
shebaitship with the character of proprietary rights and
attaches to it the legal incidents of property.‖
The Court held that a shebait has a beneficial interest in the usufruct of the
debutter property. This beneficial interest is in the form of a proprietary right.
Though the role of the shebait is premised on the performance of certain duties
for the idol and the benefits are appurtenant, neither can be separated from the
other. Thus, office and property are both blended in shebaitship, the personal
interest of a shebait being appurtenant to their duties.217
Pujaris

  1. A final point may be made with respect to shebaits. A pujari who conducts
    worship at a temple is not merely, by offering worship to the idol, elevated to the
    status of a shebait. A pujari is a servant or appointee of a shebait and gains no
    independent right as a shebait despite having conducted the ceremonies for a
    long period of time. Thus, the mere presence of pujaris does not vest in them any
    right to be shebaits. In Gauri Shankar v Ambika Dutt218, the plaintiff was the
    descendant of a person appointed as a pujari on property dedicated for the
    worship of an idol. A suit was instituted for claiming partition of the right to
    worship in the temple and a division of the offerings. A Division Bench of the
    Patna High Court held that the relevant question is whether the debutter
    appointed the pujari as a shebait. Justice Ramaswami held:

217 Affirmed in Badri Nath v Punna, AIR 1979 SC 1314; Profulla Chorone Requitte v Satya Chorone Requitte,
(1979) 3 SCC 409
218 AIR 1954 Pat 196
PART N
387
―7…It is important to state that a pujari or archak is not a
shebait. A pujari is appointed by the Shebait as the purohit to
conduct the worship. But that does not transfer the rights and
obligations of the Shebait to the purohit. He is not entitled, to
be continued as a matter of right in his office as pujari. He is
merely a servant appointed by the Shebait for the
performance of ceremonies. Where the appointment of a
purohit has been at the will of the founder the mere fact that
the appointees have performed the worship for several
generations, will not confer an independent right upon the
members of the family so appointed and will not entitle them
as of right to be continued in office as priest…‖

  1. A shebait is vested with the authority to manage the properties of the deity
    and ensure the fulfilment of the purpose for which the property was dedicated. As
    a necessary adjunct of this managerial role, a shebait may hire pujaris for the
    performance of worship. This does not confer upon the appointed pujaris the
    status of a shebait. As appointees of the shebait, they are liable to be removed
    from office and cannot claim a right to continue in office. The distinction between
    a shebait and a pujari was recognised by this Court in Sree Sree Kalimata
    Thakurani of Kalighat v Jibandhan Mukherjee.
    219 A suit was instituted under
    Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for
    the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani
    and her associated deities. A Constitution Bench of this Court, speaking through
    Justice JR Mudholkar held:
    ―…It is wrong to call shebaits mere pujaris or archakas. A
    shebait as has been pointed out by Mukherjea J. (as he then
    was), in his Tagore Law Lectures on Hindu Law of Religious
    and Charitable Trusts, is a human ministrant of the deity while
    a pujari is appointed by the founder or the shebait to conduct
    worship. Pujari thus is a servant of the shebait. Shebaitship is
    not mere office, it is property as well.‖

219 AIR 1962 SC 1329
PART N
388

  1. A pujari is appointed by the founder or by a shebait to conduct worship.
    This appointment does not confer upon the pujari the status of a shebait. They
    are liable to be removed for any act of mismanagement or indiscipline which is
    inconsistent with the performance of their duties. Further, where the appointment
    of a pujari has been at the will of the testator, the fact that appointees have
    performed the worship for several generations does not confer an independent
    right upon the appointee or members of their family and will not entitle them as of
    right to be continued in office as priests. Nor does the mere performance of the
    work of a pujari in and of itself render a person a shebait.
    An exclusive right to sue?
  2. The position of a shebait is a substantive position in law that confers upon
    the person the exclusive right to manage the properties of the idol to the
    exclusion of all others. In addition to the exclusive right to manage an idol‘s
    properties, the shebait has a right to institute proceedings on behalf of the idol.
    Whether the right to sue on behalf of the idol can be exercised only by the
    shebait (in a situation where there is a shebait) or can also be exercised by the
    idol through a ‗next friend‘ has been the subject of controversy in the proceedings
    before us. The plaintiff in Suit 3 – Nirmohi Akhara contends that the Nirmohis are
    the shebaits of the idols of Lord Ram at the disputed site. Mr S K Jain, learned
    Senior Counsel appearing on behalf of Nirmohi Akhara, urged that absent any
    allegation of maladministration or misdemeanour in the averments in the plaint in
    Suit 5, Devki Nandan Agarwal could not have maintained a suit on behalf of the
    idols as a next friend. Mr Jain placed significant reliance on the contention that
    PART N
    389
    the plaint in Suit 5 does not aver any mismanagement by the Nirmohis. Mr S K
    Jain urged that though the plaintiffs in Suit 5 (which was instituted in 1989) were
    aware of Suit 3 which was instituted by Nirmohi Akhara (in 1959) claiming as a
    shebait, the plaint in Suit 5 does not challenge the position of Nirmohi Akhara as
    a shebait. Consequently, Nirmohi Akhara urged that a suit by a next friend on
    behalf of the idol is not maintainable. The argument that Nirmohi Akhara is the
    shebait of the idols and is consequently vested with the exclusive right to bring an
    action on behalf of the idols of Lord Ram was also supported by Dr Dhavan,
    learned Senior Counsel appearing on behalf of the plaintiffs in Suit 4. He urged
    that despite his submission that Suit 3 was barred by limitation, a dismissal of
    that suit only extinguished the remedy of Nirmohi Akhara to file a suit for
    possession but did not extinguish the Nirmohi‘s rights as shebaits. Therefore, in
    Dr Dhavan‘s submission, Nirmohi Akahara continued to be shebaits and possess
    an exclusive right to sue on behalf of the idols of Lord Ram even in 1989. This, it
    is urged, renders Suit 5 not maintainable.
  3. The challenge to the maintainability of Suit 5 is premised on the contention
    that only a shebait can sue on behalf of the idol. The question of who can sue on
    behalf of the idol arises due to the unique nature of the idol. The idol is a juristic
    person and the owner of the debutter property, but (as we have discussed earlier)
    only in an ideal sense. In law, the idol is capable of suing and being sued in its
    own name. However, for all practical purposes any suit by the idol must
    necessarily be brought by a human actor. In Maharaja Jagadindra Nath Roy
    PART N
    390
    Bahadur v Rani Hemanta Kumari Debi220 the plaintiff instituted a suit as shebait
    of an idol alleging dispossession of certain lands by the defendant. The
    defendant resisted the suit on the ground of limitation. The shebait alleged that at
    the time of the dispossession, he was a minor and therefore the period of
    limitation did not begin against him until he attained majority. The Privy Council,
    speaking through Sir Arthur Wilson held:
    ―But assuming the religious dedication to have been of the
    strictest character, it still remains that the possession and
    management of the dedicated property belongs to the
    shebait. And this carries with it the right to bring
    whatever suits are necessary for the protection of the
    property. Every such right of suit is vested in the shebait,
    not in the idol. And in the present case the right to sue
    accrued to the Plaintiff when he was under age. The case
    therefore falls within the clear language of sec. 7 of the
    Limitation Act which says that: ―if a person entitled to institute
    a suit … be, at the time from which the period of limitation is
    to be reckoned, a minor,‖ he may institute the suit after
    coming of age within a time, which in the present case would
    be three years.‖
    (Emphasis supplied)
    The Privy Council examined whether, at the time of the dispossession, limitation
    began running against the shebait. In doing this, the Privy Council located the
    right to sue as vested in the shebait and not the idol. Ultimately, the Privy Council
    held that the suit was not barred by limitation as the shebait was a minor at the
    time of the dispossession. Thus, it was not relevant whether or not limitation ran
    against the deity‘s right to sue as such right vested in the shebait.
  4. Ordinarily, the right to sue on behalf of the idol vests in the shebait. This
    does not however mean that the idol is deprived of its inherent and independent

220 (1903-04) 31 IA 203
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391
right to sue in its own name in certain situations. The property vests in the idol. A
right to sue for the recovery of property is an inherent component of the rights
that flow from the ownership of property. The shebait is merely the human actor
through which the right to sue is exercised. As the immediate protector of the
idols and the exclusive manager of its properties, a suit on behalf of the idol must
be brought by the shebait alone. Where there exists a lawfully appointed shebait
who is able and willing to take all actions necessary to protect the deity‘s interests
and to ensure its continued protection and providence, the right of the deity to
sue cannot be separated from the right of the shebait to sue on behalf of the
deity. In such situations, the idol‘s right to sue stands merged with the right of the
shebait to sue on behalf of the idol. This understanding is summarised by Justice
B K Mukherjea in ―The Hindu Law of Religious and Charitable Trusts‖ in the
following manner:
―This decision [in Jagadindra Nath], therefore, establishes
three things: –
(1) That the right of a suit in respect of the deity‘s property is
in the Shebait;
(2) this right is a personal right of the Shebait which entitles
him to claim the privilege afforded by the Limitation Act;
and
(3) the Shebait can sue in his own name and the deity need
not figure as a plaintiff in the suit, though the pleadings
must show that the Shebait is suing as such.‖221

  1. A suit by a shebait on behalf of an idol binds the idol. For this reason, the
    question of who can sue on behalf of an idol is a question of substantive law.
    Vesting any stranger with the right to institute proceedings on behalf of the idol

221 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at pages 257-258
PART N
392
and bind it would leave the idol and its properties at the mercy of numerous
individuals claiming to be ‗next friend‘. Therefore, the interests of the idol are
protected by restricting and scrutinising actions brought on behalf of the idol. For
this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When
a lawful shebait sues on behalf of the deity, the question whether the deity is a
party to the proceedings is merely a matter of procedure. As long as the suit is
filed in the capacity of a shebait, it is implicit that such a suit is on behalf of and
for the benefit of the idol.
A suit by a worshipper or person interested

  1. There may arise a situation where a shebait has been derelict in the
    performance of duties, either by not taking any action or by being complicit in the
    wrongful alienation of the endowed property. In such a situation, where a suit is
    instituted for the recovery of the deity‘s property, the action is against both the
    shebait and the person possessing or claiming the property in a manner hostile to
    the deity. The remedy for an action against mismanagement simpliciter by a
    shebait can be found in Section 92 of the Civil Procedure Code 1908. However,
    where an action against a stranger to the trust is contemplated, the remedy is not
    a suit under Section 92 of the Civil Procedure Code 1908 but a suit in general
    law.
    PART N
    393
  2. In Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy222, the
    plaintiffs accused the defendants, who were the managers of the temple and its
    properties, of mismanagement. Subsequently, a compromise decree was
    executed between the defendants and the Hindu Religious Endowments Board
    which inter alia declared the temple properties as the personal property of the
    defendants. The plaintiffs sought a declaration under Section 42 of the Specific
    Relief Act 1963 that the provision of the compromise decree stating that the
    temple properties were the absolute personal properties of the defendant was not
    binding on the temple. The defendants resisted this contention on the ground that
    the plaintiffs had no legal interest in the temple or temple property and were mere
    worshippers whose suit could not bind the temple. Justice V Ramaswami,
    speaking for a two judge Bench of this Court held:
    ―13. … As a matter of law the only person who can represent
    the deity or who can bring a suit on behalf of the deity is the
    Shebait, and although a deity is a judicial person capable of
    holding property, it is only in an ideal sense that the property
    is so held. The possession and management of the
    property with the right to sue in respect thereof are, in the
    normal course, vested in the Shebait but where, however,
    the Shebait is negligent or where the Shebait himself is
    the guilty party against whom the deity needs relief it is
    open to the worshippers or other persons interested in
    the religious endowment to file suits for the protection of
    the trust properties. It is open, in such a case, to the deity to
    file a suit through some person as next friend for recovery of
    possession of the property improperly alienated or for other
    relief. Such a next friend may be a person who is
    worshipper a of the deity or as a prospective Shebait is
    legally interested in the endowment. In a case where the
    Shebait has denied the right of the deity to the dedicated
    properties, it is obviously desirable that the deity should file
    the suit through a disinterested next friend, nominated by the
    court…‖
    (Emphasis supplied)

222 1966 Supp SCR 270
PART N
394

  1. A necessary adjunct of managing of the temple properties is the right to
    sue for recovery of the said properties. Ordinarily a shebait alone will be entitled
    to bring a suit on behalf of the idol. In addition to being convenient and providing
    immediate recourse for the idol, it also provides a valuable check against
    strangers instituting suits, the outcomes of which may adversely impact the idol
    without the knowledge of the idol or the shebait. But there may be cases where
    the conduct of a shebait is in question. In certain cases, where the shebait itself is
    negligent or sets up a claim hostile to the idol, it is open for a worshipper or a
    next friend interested in protecting the properties of the idol to file a suit to
    remedy the situation. In the above case, by entering into the compromise decree
    declaring the temple properties as personal properties of the defendant shebaits,
    the defendants set up a title contrary to the title of the idol itself. This Court held
    that it was hence permissible for the plaintiffs, who were worshippers, to maintain
    a suit invalidating the compromise decree.
  2. However, in Vemareddi Reddy, the suit was not instituted on behalf of the
    deity. The suit was instituted in a personal capacity by the worshipper seeking a
    declaration that the property in question was debutter property. In this context,
    the court held:
    ―11. … If a shebait has improperly alienated trust property a
    suit can be brought by any person interested for a declaration
    that such alienation is not binding upon the deity but no
    decree for recovery of possession can be made in such a suit
    unless the plaintiff in the suit has the present right to the
    possession. Worshippers of a temple are in the position of
    cestuui que trustent or beneficiaries in a spiritual sense. …
    Since worshippers do not exercise the deity‘s power of
    suing to protect its own interests, they are not entitled to
    recover possession of the property improperly alienated
    PART N
    395
    by the Shebait, but they can be granted a declaratory
    decree that the alienation is not binding on the deity…‖
    (Emphasis supplied)
    The significance of the distinction between suing on behalf of the deity and the
    institution of a suit in a personal capacity for the benefit of the deity will be
    adverted to shortly.
  3. In Bishwanath v Sri Thakur Radha Ballabhji223 a next friend of the idol
    challenged the alienation of its properties by the defendant shebait. One of the
    defences taken by the shebait was that the next friend was not capable of
    maintaining a suit on behalf of the deity. Justice Subba Rao, speaking for a
    three-judge Bench of this Court affirmed the principle that ordinarily a shebait
    possesses the exclusive right to sue on behalf of the idol:
    ―9. Three legal concepts are well settled: (1) An idol of a
    Hindu temple is a juridical person; (2) when there is a Shebait,
    ordinarily no person other than the Shebait can represent the
    idol; and (3) worshippers of an idol are its beneficiaries,
    though only in a spiritual sense. It has also been held that
    persons who go in only for the purpose of devotion have,
    according to Hindu law and religion, a greater and deeper
    interest in temples than mere servants who serve there for
    some pecuniary advantage…‖
    The learned judge then evaluated when persons other than a shebait may be
    entitled to maintain a suit on behalf of the deity:
    ―10. The question is, can such a person represent the idol
    when the Shebait acts adversely to its interest and fails to
    take action to safeguard its interest. On principle we do
    not see any justification for denying such a right to the
    worshipper. An idol is in the position of a minor when the
    person representing it leaves it in a lurch, a person
    interested in the worship of the idol can certainly be
    clothed with an ad hoc power of representation to protect

223 (1967) 2 SCR 618
PART N
396
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery, in
most of the cases it will be an indirect approval of the
dereliction of the Shebait‘s duty, for more often than not he
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be open to
the transferee in a suit. Should it be held that a worshipper
can file only a suit for the removal of the Shebait and for
the appointment of another in order to enable him to take
steps to recover the property, such a procedure will be
rather prolonged and a complicated one and the interest
of the idol may irreparably suffer. That is why decisions
have permitted a worshipper in such circumstances to
represent the idol and to recover the property for the idol.
It has been held in a number of decisions that worshippers
may file a suit praying for possession of a property on behalf
of an endowment…‖
(Emphasis supplied)

  1. The decision reiterates the holding in Vemareddi Reddy that where a
    shebait refuses to act for the benefit of the idol, or where the shebait‘s actions are
    prejudicial to the interest of the idol, an alternative method must be provided for
    protecting the idol‘s interests. In such cases, a next friend interested in the
    protection of the endowed properties is vested with the right to institute a suit.
    Where an action prejudicial to the interests of the idol is taken by the shebait, it is
    unlikely that the shebait will institute a suit challenging its own actions. Therefore,
    it becomes necessary to confer on a next friend the right to bring an action in law
    against the shebait and the stranger who threatens the idol‘s interests.
  2. It is important to note that unlike in Vemareddi Reddy, this Court in
    Bishwanath permitted worshippers to sue on behalf of the idol. The suit in
    Bishwanath was not instituted by a worshipper in their personal capacity, but
    rather as a representative of the idol to the exclusion of the shebait. The next
    PART N
    397
    friend stepped into the shoes of the shebait for the limited purpose of the
    litigation.
  3. The position in law with respect to when a worshipper may institute
    proceedings is settled. A worshipper can institute a suit to protect the interests of
    the deity against a stranger where a shebait is negligent in its duties or takes
    actions that are hostile to the deity. The question whether the remedy available to
    the worshipper is a suit in a personal capacity or a suit on behalf of the idol (as
    next friend) is one which must be answered. The suit in Vemareddi Reddy was a
    suit filed by worshippers in their personal capacity and the court had no occasion
    to determine whether a suit by a next friend on behalf of the idol itself would be
    maintainable. However, given the express observations that a worshipper cannot
    exercise the deity‘s right to sue, this matter must be considered.
  4. In this regard, Dr Dhavan brought to our notice the separate opinion of
    Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila
    Thakur224
    , as a member of a Division Bench of the Calcutta High Court. The
    case arose from a rather unique factual background. A suit was instituted by
    Anupama, who was not the shebait but the daughter of the then shebait.
    Anupama sought to stay the sale of certain property on the ground that the
    property was absolute debutter property. Anupama‘s suit was subsequently
    dismissed and fresh proceedings were instituted by the shebaits proper. Justice
    Nasim Ali and Justice Pal both held that Anupama was not a shebait and thus the

224 AIR 1942 Cal 99
PART N
398
dismissal of her suit was irrelevant for the purposes of deciding the fresh suit.
However, Justice Pal further observed:
―Persons having individual rights under such endowments
can bring suits to enforce such individual rights by an ordinary
suit in their own name without being obliged to bring a
suit in the name of the idol. This right reserved to the
worshippers sufficiently safeguards the interest of the
worshippers or other persons interested in the debutter. At the
same time it obviates the risk of jeopardising the interests
of the idol by allowing it to be affected by the
intermeddling of persons whose fitness has never been
enquired into and adjudicated upon.‖
(Emphasis supplied)
Justice Pal opines that even in situations where the shebait acts contrary to the
interests of the idol, a worshipper cannot sue on behalf of the idol, but only in a
personal capacity. This stems from the concern that persons whose fitness or
bona fides has not been enquired into or adjudicated upon by the courts may be
able to adversely bind the idol and its properties. In this view, the worshipper
does not sue on behalf of the deity, but may, at the very highest, obtain a
declaratory decree challenging the shebait‘s actions as not binding on the deity.

  1. Where a shebait acts prejudicially to the deity‘s interests, there thus exist
    two views on the remedies available to the interested worshipper. The position
    taken by this Court in Bishwanath is that a worshipper can sue as a next friend
    on behalf of the deity. As next friend, the worshipper directly exercises the deity‘s
    right to sue. The alternative view taken by Justice Pal in Tarit Bhushan Rai and
    as observed by this Court in Vemareddi Reddy is that a worshipper can file a
    suit in a personal capacity to protect the deity‘s interests but cannot sue directly
    on behalf of the deity although the suit may be for the benefit of the deity. In this
    PART N
    399
    view, the deity is not bound by the suit of the worshippers unless the remedy
    provided is in rem in nature. The matter raises two questions: First, is a suit filed
    by a worshipper in a personal capacity a sufficient and expedient method to
    protect the interests of the deity? Second, does allowing a next friend to sue on
    behalf of the deity without establishing the bona fide intentions and qualifications
    of the next friend put the deity‘s interest at risk?
  2. A suit by a worshipper in their personal capacity may be an appropriate
    remedy in certain cases. For example, where a shebait denies worshippers
    access to the idol, a suit by the worshipper in a personal capacity to grant access
    to the idol may constitute a suitable remedy against the shebait. A further benefit
    of confining the suits of worshippers to suits filed in a personal capacity is that in
    cases concerning the recovery of property, a suit by a worshipper in a personal
    capacity does not raise the question as to whom the possession of the land
    would be given. However, where a suit is filed by a next friend on behalf of the
    deity itself, a problem arises: in a suit for the recovery of property on behalf of the
    idol, the court cannot deliver possession of the property to the next friend. The
    next friend is merely a temporary representative of the idol for the limited
    purposes of the individual litigation. Where a worshipper can only sue in their
    personal capacity, the question of the delivery of possession does not arise.
  3. A suit by a worshipper in their personal capacity cannot however canvas
    the range of threats the idol may face at the hands of a negligent shebait and it
    may be necessary for the court to permit the next friend to sue on behalf of the
    idol itself to adequately protect the interests of the idol. For example, where a
    PART N
    400
    shebait fails to file a suit for possession on behalf of a deity, a suit by a
    worshipper in their personal capacity is inadequate. Rather, what is required is a
    suit by a next friend on behalf of the idol for the recovery of possession of the
    property. It is true that possession will not be delivered to the next friend.
    However, the court can craft any number of reliefs, including the framing of a
    scheme upon an application by the Advocate General or two persons under
    Section 92 of the Civil Procedure Code 1908225
    , to ensure that the property is
    returned to the idol. Where the inaction or mala fide action of the shebait has
    already been established, such a scheme may be the appropriate remedy,
    however this will necessarily depend on the facts and circumstances of every
    case.
  4. In view of these observations, it is apparent that where the interests of the
    idol need to be protected, merely permitting interested worshippers to sue in their
    personal capacity does not afford the deity sufficient protections in law. In certain
    situations, a next friend must be permitted to sue on behalf of the idol – directly
    exercising the deity‘s right to sue. The question of relief is fundamentally

225 92. Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for
the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust
and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil
Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the
local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a
decree—
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver
possession of any trust property in his possession to the person entitled to the possession of such property;]
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular
object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
PART N
401
contextual and must be framed by the court in light of the parties before it and the
circumstances of each case.

  1. This, however, brings us to the second question whether allowing a next
    friend to sue on behalf of the idol puts the idol at risk. The idol and its properties
    must be protected against the threat of a wayward ‗next friend‘. Where the
    shebait acts in a mala fide manner, any person claiming to be a ‗next friend‘ may
    sue. Such a person may in truth have intentions hostile to the deity and sue
    under false provenance. Even a well-intentioned worshipper may sue as a next
    friend and purely due to financial constraints or negligence lose the suit and
    adversely bind the deity. A solution offered by Justice Pal in Tarit Bhushan Rai,
    and urged by Dr Dhavan in the present proceedings, is that only court appointed
    next friends may sue on behalf of the idol. No doubt this would satisfy the court
    that the next friend is bona fide and can satisfactorily represent the deity.
  2. It is true that unless the fitness of the next friend is tested in some manner,
    an individual whose bona fides has not been determined may represent and bind
    the idol to its detriment. However, it would be unnecessarily burdensome to
    require every next friend to first be appointed by a court or for a court to find a
    disinterested person to represent the deity. The deity‘s interests would be
    sufficiently protected if, in cases where the bona fides of the next friend are
    contested by another party, the court substantively examines whether the next
    friend is fit to represent the idol. In an appropriate case, the court can do so of its
    own accord where it considers it necessary to protect the interest of the deity. In
    the absence of any objection, and where a court sees no deficiencies in the
    PART N
    402
    actions of the next friend, there is no reason why a worshipper should not have
    the right to sue on behalf of the deity where a shebait abandons his sacred and
    legal duties. Very often, worshippers are best placed to witness and take action
    against any maladministration by a shebait. Therefore, where a shebait acts
    adverse to the interests of the deity, a worshipper can, as next friend of the deity,
    sue on behalf of the deity itself, provided that if the next friend‘s bona fides are
    contested, the court must scrutinise the intentions and capabilities of the next
    friend to adequately represent the deity. The court may do so of its own accord,
    ex debito justitae.
    The competence of the third plaintiff
  3. In the present proceedings, both Mr S K Jain and Dr Dhavan urged that
    the third plaintiff in Suit 5 was not fit to represent the first and the second
    plaintiffs. Suit 5 was instituted in 1989 by Deoki Nandan Agarwal, a Vaishnavite.
    The principal deity of Vaishnavas is Lord Vishnu. The Vaishnava sect worships
    Lord Ram as one of the many avatars of Lord Vishnu. Deoki Nandan Agarwal
    was appointed as next friend to the first and the second plaintiffs by an order of
    the Civil Judge dated 1 July 1989.
  4. A Mohd. Hashim filed a civil miscellaneous application226 challenging the
    appointment of Shri Deoki Nandan Agarwal. The relevant enquiry is whether any
    substantial contest was raised to the bona fides of the third plaintiff to represent
    the first and second plaintiff. The application stated:

226 CM Application No. 10(0) of 1989 in Regular Suit No. 236 of 1989.
PART N
403
―5. That the alleged plaintiffs 1 and 2, taking into account the
plaint averments to be gospel truth are not legal persons,
and, as such, suit being not for the leg 0000al person the
question of appointment of next friend could not be
considered and without prima facie satisfying that the suit has
been filed by a legal person the question of appointment of
next friend could not be considered.

  1. That for appointment of next friend there has to be an
    averment that the alleged next friend has got no interest
    adverse to the interest of the next person for whom he is
    being appointed next friend and in the absence of any
    averment regarding the same and without satisfying about
    absence of adverse interest by the court the order
    appointing plaintiff no. 3 as a next friend is bad and illegal.‖
    (Emphasis supplied)
    In para 5 of the application, the applicant questioned the juristic personality of the
    first and the second plaintiff. It was averred that absent an established juristic
    person, the question of appointing a next friend did not arise. Be that as it may,
    the averment cannot be read as challenging the bona fides of the third plaintiff. In
    para 8, the applicant stated that any application for appointment of a next friend
    must be accompanied by a specific averment that there is no interest adverse to
    the deity the person seeks to represent. Further, the applicant must satisfy the
    court of the absence of an adverse interest. It is true that where the fitness of the
    next friend is in dispute the court should scrutinise the bona fides of the next
    friend. However, a bare allegation that is not substantiated with any evidence
    does not constitute a contest to the bona fides of the next friend. Barring a stray
    statement in para 8, the application did not substantiate or raise contest to the
    bona fides of the third plaintiff.
  2. Deoki Nandan Agarwal passed away on 8 April 2002 and an application
    was made to the court to allow Dr T P Verma to be appointed as next friend of
    PART N
    404
    the first and the second plaintiffs. By an order dated 25 April 2002, Dr T P Verma
    was appointed as next friend by the Allahabad High Court. Subsequently, an
    application was filed to allow Triloki Nath Pande to replace Dr T P Verma as next
    friend of the first and the second plaintiffs. This application was dismissed by the
    Allahabad High Court. On appeal, by an order dated 8 February 2010, this Court
    held:
    ―3. Mr. K.N. Bhat, learned senior counsel appearing on behalf
    of the appellants very earnestly argues that instead of Dr.
    Thakur Prsad Verma, Mr. Triloki Nath Pande be appointed as
    next friend of appellant-plaintiff Nos. 1 & 2 under the
    provisions of Order XXXII Rule 8 of Code of Civil Procedure
    since Dr. Verma has serious health problems. He futher
    points out that insofar as the costs already incurred are
    concerned, the present next friend Dr. Verma shall give an
    undertaking to the High Court indicating therein that he would
    be responsible for the costs already incurred.
  3. The other side has no objections for this arrangement. In
    that view, it is not necessary for us to examine the
    correctness or otherwise of the impugned order passed by the
    High Court. If the aforesaid undertaking is given and the
    willingness of Mr. Triloki Nath Pandey is indicated to the High
    Court, in that case, Mr. Triloki Nath Pandey shall act as a next
    friend of appellant-plaintiff Nos. 1 and 2 subject to the
    undertaking given by Dr. Verma.‖
    By the order of this Court, Triloki Nath Pande was permitted to act as next friend
    of the first and the second plaintiffs. No objection was raised to the appointment
    of Triloki Nath Pande in the proceedings before this Court. There was no reason
    for this Court to examine the correctness of the order of the High Court
    dismissing the application to permit TP Verma to retire from acting as the next
    friend. The Allahabad High Court subsequently appointed Triloki Nath Pande as
    next friend by an order dated 18 March 2010.
    PART N
    405
  4. Where the fitness of the next friend is in dispute the court should scrutinise
    the bona fides of the next friend. However, in the present case, this enquiry is not
    necessary as the third plaintiff in Suit 5 has been appointed as next friend of the
    first and the second plaintiffs under the orders of the court. With the appointment
    of Triloki Nath Pande, this Court has applied its mind to the question and
    permitted Triloki Nath Pande to act as next friend of the first and the second
    plaintiffs. Given the scrutiny that the appointment of the next friend has been
    subject to in the present proceedings there is no merit in the argument that the
    third plaintiff in Suit 5 is not fit to institute a suit as the next friend of the first and
    the second plaintiffs.
    Nirmohi Akhara and shebaiti rights
  5. Where there exists an express deed of dedication identifying the shebait,
    the position in law with respect to who can sue on behalf of an idol is as follows:
    (i) The right to sue vests exclusively in the lawfully appointed shebait; however,
    (ii) Where the shebait acts in a manner negligent or hostile to the interests of the
    idol through express action or inaction, any person who is interested in the
    endowment may institute a suit on behalf of the idol; and (iii) The exact nature of
    the interest possessed by the next friend, and whether the next friend is bona fide
    are matters of substantive law. If contested, it must be adjudicated upon by the
    court.
    The maintainability of Suit 5 hinges on the question whether Nirmohi Akhara were
    shebaits, and whether they have acted in a manner prejudicial to the interests of
    the idol. It is to this that issue we must now turn.
    PART N
    406
    During the oral arguments before this court, a question was put to Mr Jain
    whether by challenging the maintainability of the idol‘s suit, Nirmohi Akhara have
    set up a claim hostile to the interests of the idol. In response, Mr S K Jain
    submitted to this Court a statement conditionally modifying the position of the
    Nirmohi Akhara with respect to the maintainability of Suit 5 stating that the
    Nirmohi Akhara would not press the issue of maintainability in suit 5 provided that
    the plaintiffs in Suit 3 do not question the shebaiti rights of Nirmohi Akhara. It was
    submitted that Nirmohi Akhara can independently maintain their suits as shebaits.
  6. The statement by Nirmohi Akhara does not alter its claim that it is the
    shebait of the idols of Lord Ram. It merely stipulates that, in the event that the
    plaintiffs in Suit 5 choose to recognise Nirmohi Akhara as the shebait of the idols,
    it will no longer challenge the maintainability of Suit 5. Such a position is
    untenable in a court of law. Nirmohi Akhara has consistently taken the stand that
    the Nirmohis are shebaits of the idols of Lord Ram. If this Court finds that they
    are the shebait of the idols, they alone can sue on behalf of the idols and Suit 5
    instituted by a next friend would not be maintainable, absent an adjudication by
    this Court that the Nirmohis have acted contrary to the interests of the idol.
  7. The present case does not concern an express deed of dedication
    identifying a shebait. Rather, it is the submission of Nirmohi Akhara that by virtue
    of their long-standing presence at the disputed site, and their exercise of certain
    actions with respect to the idol, they are shebaits de facto. Further, the unique
    nature of the present proceedings is that the suit instituted by the next friend,
    thirty years after the suit by Nirmohi Akhara, is being adjudicated upon along-side
    PART N
    407
    with the suit filed by the alleged shebait, Nirmohi Akhara. The consequence of
    this is that when the suit of the next friend was instituted in 1989, no
    determination had yet been made that Nirmohi Akhara was a shebait.
  8. The present proceedings are of a composite nature, hence the question of
    the maintainability of Suit 5 must be answered in a staggered manner. The first
    question is whether the Nirmohi Akahara are the de facto shebaits of the idols of
    Lord Ram. If this is answered in the affirmative, the second question that arises
    is whether Nirmohi Akhara have acted in a manner prejudicial to the interest of
    the idol. If the Nirmohi Akhara are found to be the de facto shebaits and have not
    acted prejudicially, Suit 5 is not maintainable as it is the shebait that enjoys the
    exclusive right to sue on behalf of the deity. Alternatively, if the Nirmohi Akhara
    are found not to be de facto shebaits of the idols, or are found to have acted
    prejudicially with respect to the idols, the suit by the next friend is maintainable.
    With this, we turn to the question whether Nirmohi Akhara are shebaits de facto.
    Rights of a de facto shebait to sue
  9. The rights of a de facto shebait to institute suits on behalf of the deity can
    be traced to two early decisions of the Privy Council: Mahant Ram Charan Das v
    Naurangi Lal227 and Mahadeo Prasad Singh v Karia Bharti228
    . In Mahant Ram
    Charan Das, the Mahant of a Paliganj mutt executed a lease for 70 acres of the
    mutt‘s land and subsequently executed a sale deed subject to the lease. Upon
    his death, another person claiming to be Mahant took possession and

227 AIR 1933 PC 75
228 AIR 1935 PC 44
PART N
408
subsequently surrendered all his rights by way of a registered sale deed to the
plaintiff who was the Mahant of another mutt (of which the Paliganj mutt was a
subordinate). The plaintiff instituted a suit claiming that there was no necessity
warranting the execution of the lease deed and the subsequent sale deed. On the
question of maintainability of the suit at the behest of the plaintiff, the Privy
Council, speaking through Lord Russell, held:
―…Their Lordships, however are not now concerned with any
question of title because both the Courts below have found
that the plaintiff is the person in actual possession of the
Paliganj mutt and as such entitled to maintain a suit to
recover property not for his own benefit but for the benefit of
the mutt.‖

  1. In Mahadeo Prasad Singh, a village which formed part of the estate
    annexed to a mutt was sold by the Mahant in 1914. Upon his death in 1916, the
    suit in question was instituted in 1926 challenging the alienation by a person
    alleging to be the Mahant of the mutt. One objection to the suit was that the
    respondent was not entitled to maintain the suit as he was neither the chela of
    the previous Mahant, nor was he entitled to be the Mahant in any other capacity.
    Rejecting this contention, the Privy Council, speaking through Sir Shadi Lal held:
    ―There can be little doubt that Karia has been managing the
    affairs of the institutions since 1904, and has since the death
    of Rajbans been treated as its mahant by all the persons
    interested therein. The property entered in the revenue
    records in the name of Rajbans was, on his death, mutated to
    Karia, and it is not suggested that there is any person who
    disputes his title to the office of the mahant. In these
    circumstances their Lordships agree with the High Court that
    Karia was entitled to recover for the benefit of the math the
    property which belonged to the math and is now wrongly held
    by the appellants. They are in no better position than
    trespassers. As observed by this Board in 1933 PC 75 (1), a
    person in actual possession of the math is entitled to maintain
    PART N
    409
    a suit to recover property appertaining to it, not for his own
    benefit, but for the benefit of the math.‖
    The Privy Council noted the following: (i) Karia was recognised as a mahant by
    the villagers; (ii) The revenue record reflected Karia‘s name; and (iii) It was not
    suggested that there existed any dispute to his title to the office of the Mahant. It
    is on the basis of these considerations that the Privy Council held that the rights
    exercised by Karia were in the nature of a Mahant. The considerations outlined
    above weighed with the Privy Council in its analysis of whether the rights
    exercised were in the nature of those exercised by a Mahant.
  2. Though both the decisions of the Privy Council adverted to above were in
    the context of the right of a Mahant to bring an action on behalf of a mutt, the
    position in law that a de facto Mahant is entitled to institute an action on behalf of
    the mutt for its benefit has equally been applied to a de facto shebait of an idol
    and its properties. In Panchkari Roy v Amode Lal Burman229, Ramdas Mohunt,
    by virtue of a will, dedicated property to certain idols and appointed his widow as
    the manager of the property till the attainment of the age of majority of their
    daughter, at which point, she would take over as a shebait. The widow sold the
    property as secular property and the daughter, upon attaining majority, alleged
    that though the property was secular, it devolved upon her by the virtue of the
    will. She sold the property to another party. The plaintiff, claiming to be the
    religious preceptor of the debutter instituted a suit alleging that the idols were
    handed over to him. The question before the court was whether the plaintiff, who
    was not a member of the family or named in the will, could validly institute a suit

229 (1937) 41 CWN 1349
PART N
410
in a private endowment. The relevant question before the Calcutta High Court
was whether the plaintiff was a de facto shebait. Justice BK Mukherjea (as he
then was) held:
―The Judicial Committee in the case of Ram Chandra v.
Nourangi Lal (4) and again in Mahadeo Prosad Singh v. Karia
Bharti (5) laid down that a person in actual possession of the
Math is entitled to maintain a suit to recover property
appertaining to it not for his own benefit but for the benefit of
the Math…There may be and, in fact there is difference
between a Math and an idol but I do not see any reason why
a de facto shebait cannot be allowed to sue in case of family
endowment or private debottar….In order to make a person
a de facto shebait it is necessary, however, that he
should be in actual possession of the office and the
debottar estate….The de facto shebait would, in my
opinion, be one who exercises all the functions of a
shebait and is in possession of the debottar property
though the legal title may be lacking.‖
(Emphasis supplied)

  1. Where a person claims to be a shebait despite the lack of a legal title, the
    relevant enquiry before the Court is whether the person was in actual possession
    of the debutter property and was exercising all the rights of a shebait. The
    paramount interest in the protection of the debutter property underlines the
    recognition of a de facto shebait. Where there is no de jure shebait, the court will
    not countenance a situation where a bona fide litigant who has exercised all the
    managerial rights over the debutter property cannot be recognised in law as the
    protector of the property. It is only for the paramount interest of the institution that
    the right to sue is conceded to persons acting as managers though lacking a
    legal title of a manager.
    PART N
    411
  2. This rationale was outlined by the Madras High Court in Subramania
    Gurukkal v Abhinava Poornapriya A Srinivasa Rao Sahib230. The Court of
    Wards dismissed the ‗archaka‘ in possession of lands belonging to a temple on
    the ground that he had failed to render services and account for certain charges
    made on the property. A suit was then filed by the Jagirdar represented by his
    next friend the manager of the estate under the Court of Wards as a trustee of
    the temple to recover possession. The order of dismissal was passed after the
    death of the previous Jagirdar. It is after the suit was instituted and before the
    decision in the suit that a notification was passed making the new Jagirdar a ward
    under the Act. The question arose as to whether the order of dismissal was
    validly passed. The Court held that where the successor of the Jagirdar took no
    step to assume control, the Court of Wards assumed the position of a de facto
    trustee. Justice Wodsworth held:
    ―It is the duty of the Court to protect trust property from
    misappropriation and diversion from the objects to which it
    was dedicated. When trust property is without a legal
    guardian owing to defects in the machinery for the
    appointment of a trustee or owing to the unwillingness of the
    legal trustee to act, it would be a monstrous thing if any
    honest person recognised as being in charge of the institution
    and actively controlling its affairs in the interests of the trust
    should not be entitled, in the absence of any one with a better
    title to take those actions which are necessary to safeguard
    the objects of the trust.‖
  3. This observation of the Madras High Court merits a closer look for two
    reasons: First, the Court held that the right to bring an action to protect the
    interest of the trust vests in a person who is ‗recognised as being in charge of the
    institution and actively controlling its affairs‘. A single or stray act of management

230 AIR 1940 Mad 617
PART N
412
does not entitle a person to be determined as a de facto shebait. The relevance
of this observation shall be considered shortly. Second, the de facto shebait is
vested with a right to bring an action only in the absence of a person with a better
title i.e. the de jure shebait. With the above conditions, the Court held:
―…I am moreover inclined to think, quite apart from these
statutory provisions, that a de facto trustee of a Hindu temple
in actual management of that temple and acting bona fide in
the interests of the institution can validly pass an order
dismissing a temple servant or officer, provided that the
dismissal is for good grounds and that the procedure is one to
which no objection can be taken…There is moreover no
doubt as to the capacity of a de facto trustee in possession
and management of a temple to bring a suit for the recovery
of temple lands.‖
In this view, a person in actual management and acting bona fide for the interests
of the institution can bring a claim for the recovery of temple property as a de
facto shebait.

  1. It is relevant here to advert in some detail to the Full Bench judgment of
    the Madras High Court in Sankarnarayanan Iyer v Sri Poovananathaswami
    Temple231. In this case, the de jure trustee alienated the properties of a temple
    and his whereabouts were not known. The succeeding trustee appointed under a
    compromise decree passed by the court instituted a suit for the recovery of
    possession of the suit property as the property of the temple. It was contended
    that independent of the compromise decree, he was vested with the right to
    institute a suit for the protection of the debutter properties as the de facto
    manager. Chief Justice P V Rajamannar held:

231 AIR 1949 Mad 721
PART N
413
―In the case of these endowments the so-called trustee is not
really a trustee, in the technical sense, in whom the property
is vested. He is really a manager (even in cases where he
also has a beneficial interest in the usufruct) and the title
always is vested in the idol or the institution. In either case,
the analogy is to that of an individual having a manager to
carry on the administration of his affairs and properties.
Viewed in this light, the position reduces itself to this. In some
cases, the manager has a rightful claim to the office of
manager, in other cases, his only claim is that he is in actual
possession of the office. ―De facto‖ means, ―by the title of
possession‖, in antithesis to ―de jure‖ i.e., ―by the title of
right‖. So long as the action is for the benefit of the real
owner, namely, the idol or the mutt, and the person bringing
the action is the only person who is in management of
the affairs of the idol or the mutt for the time being, there
is no reason why such person should not be allowed to
maintain the action on behalf of the idol or the mutt.‖
(Emphasis supplied)
The above observations clarify that a person claiming to be de facto shebait must
be in exclusive possession of the debutter property and must be the only person
in management of the property.

  1. In his separate opinion, Justice Viswanatha Sastri clarified the grounds of
    challenge to the exercise of the power of management by a de facto shebait in
    the following terms:
    ―…If a de facto trustee is guilty of any breach of trust, he can
    be removed like a de jure trustee. The law fixes him with the
    responsibility for the proper administration of the trust and
    also gives him the power to act on behalf of and in the
    interests of the trust, until a lawful trustee emerges…A person
    who asserts his own title to the property of a religious
    endowment, who does not sue as a trustee or manager of the
    endowment and who claims to recover the property for
    himself and not for the trust, can never be allowed to sue as a
    de facto trustee. He is entirely in the position of a trespasser
    so far as the trust is concerned and cannot be considered to
    PART N
    414
    be one who has taken upon himself the duties and obligations
    of a trustee.‖232
    Consistent with the jurisprudence on the rights of a shebait with respect to the
    properties of an endowment, a de facto shebait is entrusted with the power and
    the duty to carry out the purpose of the debutter in respect of the idol and its
    properties. Though the shebait may have an interest in the usufruct of the
    debutter property, the de facto shebait is not vested with an independent right of
    title over the debutter property. Thus, where a de facto shebait raises an
    independent claim to the debutter property to the idol, it assumes the position of a
    trespasser and no action at its behest is maintainable. A claim raised by a shebait
    adverse to the idol defeats the very purpose for which shebaits are vested with
    the right to manage the idol and its properties.
  2. It is of crucial importance to advert to the standard laid by the learned
    judges in their separate opinions as to when a person may be deemed to be a de
    facto shebait. Justice Viswanatha Sastri held:
    ―A fugitive or isolated act of a person with regard to the
    property of a religious endowment would not make him a
    de facto trustee. One swallow does not make a summer.
    There must be a continuous course of conduct, the
    length of the same depending on the facts and
    circumstances of the case. The possession of the office or
    the institution which is the object of the trust and the exercise
    of the rights pertaining to the office, would be important
    indicia of a de facto trusteeship.‖
    (Emphasis supplied)

232 Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v Ramchandra Vasudeo Kittur AIR 1956
Bom 615
PART N
415
Similarly, Justice Raghava Rao held:
―I must confess, however, that I should have experienced
greater difficulty in the determination of the point in
controversy… whence comes the right of the de facto
manager to sue? There again, where and how are we to draw
a line between a manager de facto and a manager ad hoc
exercising isolated acts on particular occasion? I respectfully
agree with my learned brother Viswanatha Sastri, J. in his
picturesque observation that one swallow does not make a
summer; but the practical question still remains, how many
do?…how best to make sure that the person suing on behalf
of the institution does not enter into improper agreements or
compromises pre-decretal and post-decretal. Or walk away
with the monies representing the fruits of a particular decree
obtained on behalf of the institution? If that is not possible, is
it any consolation that at the hands of a de jure manager too
the institution may sustain sometimes a similar detriment?‖

  1. All the above observations are of crucial importance. For, in
    Sankarnarayanan Iyer and in the consistent jurisprudence of our courts
    thereafter,233 it has been held that a stray act or intermittent acts of management
    do not vest a person with the rights of a de facto shebait. Absent a deed of
    dedication, the contention urged by Nirmohi Akhara that they have been in
    management and charge of the disputed property is a claim in law, for the rights
    of management as de facto shebaits. Both Justices Viswanatha Sastri and
    Raghava Rao in Sankarnarayanan Iyer unequivocally held that isolated acts do
    not vest a person with the rights of a de facto shebait. The conduct in question,
    must be of a continuous nature to show that the person has exercised all the
    rights of a shebait consistently over a long period of time. The duration of time

233 Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; Mohideen Khan v Ganikhan AIR 1956 AP
19; Vankamamidi Balakrishnamurthi v Gogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu
Religious and Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; D
Ganesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23; Lalji Dharamsey v
Bhagwandas Ranchghoddas 1981 Mah LJ 573; Shri Parshvanath Jain Temple v L.R.s of Prem Dass (2009)
1 RLW (Rev) 523
PART N
416
that would satisfy this requirement would, by necessity, be based on the facts
and circumstances of each case. Justice Raghava Rao endorsed the view of
Justice Viswanatha Sastri but went a step further to outline the practical
difficulties in laying down a standard against which the acts of a person claiming
to be a de facto shebait must be tested. The caution against adopting a low legal
threshold to confer on a person who merely has possession of the debutter
property and exercises intermittent managerial rights the position of a de facto
trustee is well founded.

  1. A de facto shebait is vested with the right to manage the debutter property
    and bring actions on behalf of the idol. A bona fide action for the benefit of the
    idol binds it and its properties. As compared to a de jure shebait whose rights can
    legally be traced to a deed of endowment, a de facto shebait is vested with the
    right by mere possession and exercise of management rights. The protection of
    the idol‘s properties is at the heart of this extraordinary conferral of rights. If
    courts were to adopt a standard that is easily satisfied, large tracts of debutter
    property may be left at the mercy of persons claiming to be in possession of and
    managing such properties. It is the duty of the court in every case to assess
    whether there has been not just exclusive possession but a continuous and
    uninterrupted exercise of all management rights which are recognised by the
    beneficiaries of the trust property before conferring on a person a right to which
    they have no legal title.
  2. The duties that bind the exercise of powers of a de jure shebait apply
    equally to a de facto shebait. Thus, no action can be brought by the de facto
    PART N
    417
    shebait which is not in the beneficial interest of the idol or its properties. However,
    the position of a de facto shebait and a de jure shebait is not the same in all
    respects. In Sankaranarayanan Iyer, Justice Viswanatha Sastri held:
    ―It should be observed that the rights of a de facto trustee are
    not in all respects identical with those of a de jure trustee. A
    de jure trustee of a public religious endowment can be
    removed only for misconduct and that only in a suit instituted
    with the sanction prescribed by Section 92, Civil Procedure
    Code or section 73 of Madras Act II of 1927. Where, however,
    there is only a de facto shebait functioning as such, it is open
    to persons interested in the trust to bring a suit under the
    above provisions alleging a vacancy in the office and
    requiring that it should be filled up by the appointment of a
    trustee by the court. This would entail the removal of the de
    facto trustee without any misconduct on his part…The de
    facto trustee so long as he is functioning as such, has, from
    the necessities of the situation, the right to bring suits on
    behalf of and in the interests of the trust for evicting
    trespassers claiming adversely to the trust. In this respect and
    for this purpose, his rights and powers are the same as that of
    a de jure trustee…‖
    A de jure shebait can be removed from office only on the grounds of
    mismanagement or claiming an interest adverse to the idol. However, no such
    averment is required to remove a de facto shebait. A de jure shebait may, unless
    the right of the de facto shebait has been perfected by adverse possession,
    displace a de facto shebait from office and assume management of the idol at
    any point. Further, where there is a de facto shebait, a suit may be instituted
    under Section 92 of the Civil Procedure Code 1908 requiring the court to fill up
    the vacancy by the settling of a scheme. It is for the limited purpose of bringing
    an action for the protection of the idol that the rights and powers of the de facto
    shebait are the same as that of the de jure shebait.
    PART N
    418
  3. The position of law that a person in continuous and exclusive possession
    of the debutter property who exercises management rights in the interests of the
    idol can bring actions on its behalf has found recognition by this Court in Vikrama
    Das Mahant v Daulat Ram Asthana234. The appellant was confirmed as a
    manager by virtue of a judgment of the Privy Council (on the ground that the
    previous Mahant had transferred the property to him). Prior to the date of the
    judgment of the Privy Council, another compromise decree was entered into by
    the then Mahant with certain persons who instituted a proceeding to have him
    removed. While some of the persons who brought the actions took over as
    trustees under the terms of the compromise, one of them took over as the
    Mahant and entered into possession of the property. Three of the trustees and
    the successor of the previous mahant filed a suit against the appellant. Both
    lower courts held against the appellant. The High Court held that even if the
    compromise decree is set aside, the plaintiffs are entitled to maintain the suit by
    virtue of being de facto trustees whose possession has been clear and
    undisputed. Both courts below recorded that pursuant to the compromise decree,
    the plaintiffs and the appointed Mahant entered into possession and the
    properties were mutated in the name of the Mahant, and had been in possession
    since then. Justice B Jagannadhadas, speaking for a Constitution Bench of this
    Court held:
    ―33…the question before us is whether a person who has
    been in de facto possession and management of the Asthan
    and its properties from 1934 to 1941 (and thereafter up-todate) claiming to be its trustee under the decree of a court,
    valid or invalid has not sufficient interest to maintain

234 AIR 1956 SC 382
PART N
419
proceedings for the warding off of a cloud cast by the
defendant‘s actions against the interests of the Asthan…‖
―34..where public trusts are concerned, courts have a duty to
see that their interests and the interests for whose benefit
they exist are safeguarded…We consider that, in view of Ram
Sarup Das‘s long management and possession as Mahant
and in view of the fact that he is purporting to act on its behalf
and for its interest, it is proper that he should be allowed to
continue to act on behalf of the trust until his title in
investigated in appropriate proceedings and that this Court
should grant a decree in his favour in these proceedings for
the benefit of the trust.‖
The Court affirmed that it is only for the paramount interest of the institution that
the right of suit is conceded to persons acting as managers though lacking a legal
title of a manager. The long management and possession of the claimant in the
case vested in him a right to act on behalf of the deity to protect its interests.

  1. In Sree Sree Kalimata Thakurani of Kalighat v Jibandhan
    Mukherjee235
    , a suit was instituted under Section 92 of the Code of Civil
    Procedure 1908 for the framing of a scheme for the proper management of the
    seva-puja of the Sree Kali Mata Thakurani and her associated deities and for the
    proper management of the vested properties. A scheme was framed and
    subsequently challenged on the ground that the inclusion of de facto shebaits in
    the management committee in the scheme was impermissible. Justice JR
    Mudholkar, speaking for a Constitution Bench of this Court rejected this
    contention and held:
    ―Whatever that may be, we cannot ignore the fact that the
    present predecessors have been functioning as shebaits for a
    very long period and their rights in that regard have not been
    called into question ever before. In these circumstances we

235 AIR 1962 SC 1329
PART N
420
cannot accept the contention of the learned counsel that they
should be completely excluded from the management of the
temple.‖
In crafting the relief, the Court was mindful of the long exercise of rights by those
acting as shebaits. The initial scheme framed by the High Court comprised
eighteen members on the managerial board of which twelve were shebaits. The
Court modified this to a Board of eleven members, with five shebaits and a
majority of Hindus who were not shebaits.

  1. The protection of the trust property is of paramount importance. It is for this
    reason that the right to institute proceedings is conceded to persons acting as
    managers though lacking a legal title of a manager. A person claiming to be a de
    facto shebait can never set up a claim adverse to that of the idol and claim a
    proprietary interest in the debutter property. Where a person claims to be the de
    facto shebait, the right is premised on the absence of a person with a better title
    i.e. a de jure manager. It must be shown that the de facto manager is in exclusive
    possession of the trust property and exercises complete control over the right of
    management of the properties without any hindrance from any quarters. The
    person is, for all practical purposes, recognised as the person in charge of the
    trust properties. Recognition in public records as the manager would furnish
    evidence of being recognised as a manager.
  2. Significantly, a single or stray act of management does not vest a person
    with the rights of a de facto shebait. The person must demonstrate long,
    uninterrupted and exclusive possession and management of the property. What
    period constitutes a sufficient amount is determined on a case to case basis. The
    PART N
    421
    performance of religious worship as a pujari is not the same as the exercise of
    the rights of management. A manager may appoint one or several pujaris to
    conduct the necessary ceremonies. In the ultimate analysis, the right of a person
    other than a de jure trustee to maintain a suit for possession of trust properties
    cannot be decided in the abstract and depends upon the facts of each case. The
    acts which form the basis of the rights claimed as a shebait must be the same as
    exercised by a de jure shebait. A de facto shebait is vested with the right to
    institute suits on behalf of the deity and bind its estate provided this right is
    exercised in a bona fide manner. For this reason, the court must carefully assess
    whether the acts of management are exclusive, uninterrupted and continuous
    over a sufficient period of time.
    Duration of time
  3. A final question that is relevant for our present enquiry is whether a de
    facto shebait can claim a right to continue indefinitely in office. As seen earlier, a
    de jure shebait and a de facto shebait exercise similar rights in the limited sense
    of acting for the benefit of the idol. Even absent an averment of mismanagement
    by the shebait, a person may institute proceedings under Section 92 of the Code
    of Civil Procedure 1908 against a de facto shebait for the settling of a scheme. In
    this view, legal certainty and the sustained interest of the deity would be served
    by circumscribing the claim of a de facto shebait to continue, as a matter of right,
    in perpetuity.
    PART N
    422
  4. In Gopal Krishnaji Ketkar v Mahomed Jaffar Mohamed Hussein236 the
    plaintiffs instituted a suit praying for a declaration that the second plaintiff is the
    guardian and ‘vahivatdar’ of the Darga. The defendant claimed to be its rightful
    manager and Mutawalli. The plaintiffs‘ family were managers since 1817. Since
    1902-03, the defendant was given the right to manage prayers during a certain
    period every year in the temple and collect the offerings for his upkeep. Upon
    alleged interference with the plaintiffs‘ right to manage and collect offerings, the
    suit was instituted. The Court found that the plaintiffs and their family had been
    managing from at least the year 1886. The Court held that as the right claimed by
    the defendant was not that of a hereditary trustee, the right dies with him and the
    only question was whether or not the plaintiffs were entitled to management and
    the offerings. Justice Vivan Bose, speaking for a three-judge Bench of this Court
    held:
    ―30. Now a ‗de facto manager or a trustee de son tort‘ has
    certain rights. He can sue on behalf of the trust and for its
    benefit to recover properties and moneys in the ordinary
    course of management. It is however one thing to say that
    because a person is a ‘de facto’ manager he is entitled to
    recover a particular property or a particular sum of money
    which would otherwise be lost to the trust, for and on its
    behalf and for its benefit, in the ordinary course of
    management; it is quite another to say that he has the
    right to continue in ‘de facto’ management indefinitely
    without any vestige of title, which is what a declaration of
    this kind would import. We hesitate to make any such
    sweeping declaration… That being so, we think it
    undesirable that things should be allowed to drift in this
    uncertain way, no one knowing where the legal rights of
    management lie or of what they consist; no one knowing
    how the rights are to devolve or how the large charitable
    offerings which are collected are to be distributed and
    used.‖
    (Emphasis supplied)

236 AIR 1954 SC 5
PART N
423

  1. The Court drew a distinction between a claim in law to be vested with the
    right to bring an action on behalf of the deities and a claim to continue indefinitely
    as a de facto shebait which, for all purposes, would be equating a de facto
    shebait with a de jure shebait and conferring upon the former a legal title where it
    has always been absent. Legal certainty and the ultimate protection of the trust
    properties underlie Section 92 of the Code of Civil Procedure 1908. Under this
    provision, the Court is, upon an application by the Advocate-General or two or
    more persons having an interest in the trust and having obtained the leave of the
    court, vested with wide powers to replace trustees and settle a scheme with
    respect to the trust property. Keeping this in mind, the Court framed directions in
    accordance with the above observations:
    ―32. We are told by the learned Solicitor-General that a suit
    under Section 92, Civil P.C. is under contemplation. Without
    in any way prejudicing matters which will arise there, we
    make the following order. We direct1. That the present arrangement regarding the collection and
    disposal of the offerings continue for a period of six months
    from the date of this judgment.
  2. That in the interval the offerings so collected, as well as
    those already in deposit, he not handed over to the second
    plaintiff except to the extent necessary for meeting the
    expenses. The legal representatives of the defendant have no
    right at all to those offerings.
  3. If such a suit is instituted within the said period, then the
    said offerings and collections be disposed of in accordance
    with such scheme as may then be framed, and in accordance
    with such directions as may be given in that suit.
  4. If no such suit is instituted within the said six months, then
    the second plaintiff, as the person in ‘de facto’ management
    of the Darga from 13-11-1938, the date of his adoption, till the
    date of suit, 7-10-1946, will be entitled to receive the offerings
    now lying in deposit in the Treasury for and on behalf of the
    Darga and for its benefit and in future to collect all the
    offerings all the year round for and on behalf of the Darga and
    for its benefit until he is displaced by a person with better title
    or authority derived from the Courts.‖
    PART N
    424
  5. In Vikrama Das Mahant v Daulat Ram Asthana237, the compromise
    decree on the basis of which the Mahant claimed a right and entered into
    possession was not given effect. The decree of the trial court giving effect to the
    compromise decree was set aside. Though the court sustained the rights of the
    Mahant to continue as a de facto manager, the Court held:
    ―19. But this is only a stop gap expedient. We cannot shut our
    eyes to the fact that we have before us a public trust of which,
    on the facts now before us, an alleged intermeddler claiming
    under a decree said to be void is in possession and
    management. It may be, when proper proceedings are
    instituted to determine the matter, that it will be found that he
    is not without legal authority or it may be proper to invest him
    with that authority if he has not already got it, or again it may
    be better to have another person or body.
    But those are not matters we need decide in these
    proceedings. All we need do is to bring the present state of
    facts to the notice of the Advocate General of Uttar Pradesh
    and leave him to consider whether he should not, of his own
    motion, institute proceedings under S. 92, Civil P. C., or take
    other appropriate steps. Let a copy of this judgment be sent
    to him.‖
  6. The decisions of this Court in Gopal Krishnaji Ketkar and Vikrama Das
    affirm that the interest of protecting the trust properties was the basis of
    conferring upon a de facto shebait the limited right of instituting bona fide suits on
    behalf of the idol. Where there was no de jure shebait, the law recognised the
    person managing the property as a shebait to the extent of protecting the idol and
    its properties. However, this limited recognition did not confer upon de facto
    shebaits the right to continue in perpetuity.

237AIR 1956 SC 382
PART N
425
The Nirmohi Claim

  1. Having adverted to the legal standard that must be satisfied for a court to
    recognise a de facto shebait, the stage has been reached to adjudicate upon the
    contention urged by the Nirmohi Akhara that it is the shebait of the idols at the
    disputed site. Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of
    Bairagis which is a religious denomination. The customs of Nirmohi Akhara
    purport to have been reduced to writing by a registered deed dated 19 March
  2. It was contended that the disputed structure is a temple building which has
    been in the possession of Nirmohi Akhara and only the Hindus have been
    allowed to enter the temple and make offerings. Nirmohi Akhara claims that it
    has been receiving the offerings through its pujaris. The averments contained in
    the plaint as well as the reliefs which have been claimed by Nirmohi Akhara
    indicate that the claim is to a right to manage and have charge of the temple.
    Nirmohi Akhara contended that it has been in possession of the property and has
    exercised management rights which amounts to a conferral on them of the status
    of a de facto shebait.
  3. At the outset, it was contended by Nirmohi Akhara that absent an
    averment in the plaint in Suit 5 disputing its status as the shebait of the idols of
    Lord Ram, their status as shebaits cannot be disputed. It was further contended
    that no rival claim to the rights of the shebait have been set up in any suit.
    Consequently, it was urged that it must be held that the Nirmohis are the shebaits
    of the idols of Lord Ram. This contention cannot be accepted. If Nirmohi Akhara
    were to be recognised as a de facto shebait, this would confer on it a substantive
    PART N
    426
    right in law to bring actions on behalf of the idol to the exclusion of all other
    persons. The actions of a shebait bind the idol and its properties. Absent an
    express deed of dedication conferring shebaiti rights on Nirmohi Akhara, there is
    a positive burden on it to demonstrate that it was in fact a shebait of the idols. For
    this reason, the Nirmohi Akhara must establish, on the basis of oral and
    documentary evidence, that they have exercised all the rights required to be
    recognised as de facto shebaits.
  4. Nirmohi Akhara denies the incident of 22/23 December 1949 during which
    the idols were surreptitiously introduced into the inner sanctum of the disputed
    structure. The claim that Nirmohi Akhara were in possession of the inner
    courtyard on the basis of the evidence on record has already been rejected.
    Nirmohi Akhara has failed to prove that at the material time, the disputed
    structure was a temple which was in its possession and that no incident had
    taken place on 22/23 December 1949. Absent exclusive possession of the inner
    courtyard, the claim that Nirmohi Akhara was managing the inner courtyard as
    shebaits does not arise. It was in this context that Justice Sudhir Agarwal held:
    ―2994. Now coming to Issue No. 3 (suit-3), it has to be kept in
    mind that this suit is also confined to the premises within the
    inner Courtyard and not the entire premises, i.e., the outer
    and the inner Courtyard including the building. This is what is
    stated by the counsel for Nirmohi Akhara in his statement
    made on 17.5.1963 under Order X Rule 1 CPC.
  5. In these particular facts and circumstances and the
    stand of Nirmohi Akhara, we have no option but to hold that
    so far as the idols of Bhagwan Sri Ram installed in the
    disputed structure i.e. within the inner courtyard is concerned,
    the defendant Nirmohi Akhara cannot be said to be a Shebait
    thereof.‖
    PART N
    427
  6. In the written submissions of Nirmohi Akhara it has been contended that
    the inner and outer courtyard form a composite whole and Suit 3 was only filed
    with respect to the inner courtyard as only the inner courtyard was the subject of
    the attachment proceedings. Nirmohi Akhara submits that the attachment order
    made an arbitrary distinction between the inner and outer courtyard and a finding
    with respect to the inner courtyard does not undermine their claim to shebaitship
    of the entire premises. Even if this argument is accepted, apart from the
    determination that Nirmohi Akahra was not in possession of the inner courtyard,
    the independent question that arises for our determination is whether Nirmohi
    Akhara consistently exercised management rights over the idols in the outer
    courtyard to claim a right in law as a de facto shebait of the idols of Lord Ram. To
    support their contention, Nirmohi Akhara has relied on the oral evidence of
    witnesses in Suits 3 and 5 and also submitted certain additional documents to
    establish its status as shebait.
  7. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiff in
    Suit 3 placed reliance on the witness statements of Mahant Bhaskar Das (DW
    3/1) and Raja Ram Pandey (DW 3/2) in Suit 3 to contend that it was admitted that
    the Nirmohi Akhara had been exercising the rights of a shebait since time
    immemorial. The oral evidence submitted by Nirmohi Akhara has already been
    analysed in the course of this judgement. The statements by their witnesses
    cannot be relied on to establish a cogent account of the activities undertaken by
    Nirmohi Akhara at the disputed site. Numerous witnesses admitted to not having
    read their own affidavits in lieu of their Examination-in-Chief. The witnesses
    PART N
    428
    merely signed the relevant documents without understanding the testimony
    contained therein. Further, under cross-examination, a number of the witnesses
    expressly contradicted their own statements. Several witnesses admitted to not
    having even entered the disputed structure or rescinded earlier statements about
    their visits to the disputed structure. In light of these observations, the oral
    evidence relied upon by Nirmohi Akhara to establish their position as shebaits
    cannot be accepted. However, for the sake of completeness, the relevant
    extracts are examined below.
  8. Mahant Bhaskar Das (DW 3/1) was the Panch of Nirmohi Akhara since
    1950 and was at the material time the Sarpanch. In his affidavit, it was stated:
    ―81. Lord Ram Lalla is seated in the inner part even before
    1934 and it had been in the possession of Nirmohi Akhara
    continuously since 1934. The Muslims are not ignorant about
    it. The Lord is seated there. His worship, royal offering all is
    done on behalf of Nirmohi Akhara. On the day of the
    attachment (viz 29.12.1949) of the inner part also it was in
    possession of the Akhara. The ownership got ordained in
    Nirmohi Akhara due to its being a religious trust.‖
    It has been held, in the course of this judgement, on an analysis of the evidence
    on record, that the idols were shifted under the central dome on in the intervening
    night of 22/23 December 1950. The affidavit of this witness contains references
    to the existence of Nirmohi Akhara in Ayodhya for 200 years and in the disputed
    site. However, with regard to the exercise of shebaiti rights, the witness states:
    ―35. An annual contract was given to provide flowers, fruits,
    batasha, etc., to the visitors of the eastern door temple of Sri
    Ram Janambhomi. This was being done since ancient time
    by the previous Mahants of Nirmohi Akhara and an
    agreement was executed for it. The Brahmins were given the
    contract to provide holy and fresh water from the Sita Koop to
    the visitors/devotees. The tax was paid to the Mahant of the
    PART N
    429
    Akhara. I have submitted all the available agreements with
    me and many documents were plundered. The report was
    lodged for the same.‖
    In the cross examination of this witness by Mr Zafaryab Jilani, learned Senior
    Counsel appearing for the Sunni Central Waqf Board, on 11 September 2003, the
    witness replied:
    ―After the attachment the offerings which were made on the
    idols places in the disputed building were not a part of any
    contract by Niromohi Akhara. There is a mention of
    agreement about the contract in para 36 of my affidavit but I
    do not remember how many such agreements were
    submitted in this court on behalf of Nirmohi akhara. I do
    not remember this time the names of those people who
    were made to write the aforesaid so called agreement by
    Nirmohi Akhara. I do not remember any name this time. I
    have written in para 35 of my affidavit about submitting such
    agreement in the court and Bindeshwari Dubey was one of
    them who wrote the agreement and it is submitted in the them
    who wrote the agreement and it is submitted in the court.
    Which is the Document No. 39 C-1/39, I cannot tell it by
    the number but the paper is titled.‖
    (Emphasis supplied)
    Though the witness makes reference to the presence of the Nirmohi Akhara in
    the disputed site, the witness is unable to recall any of the documents mentioned
    to have been submitted by him as evidence that the Nirmohi Akhara were
    exercising management rights as the shebait. It is also important to note the
    answer of this witness to the question put by Mr Jilani in the cross-examination
    dated 17 September 2003:
    ―Question: – Shall I take it that most of the part of this affidavit
    was drafted by your advocate on the basis of his knowledge?
    Answer:- It is wrong to say so. Some parts of this affidavit
    is based on the knowledge of my advocate but I do not
    remember which is that part and I will not be able to tell
    it.‖
    (Emphasis supplied)
    PART N
    430
    The statements of DW 3/1 demonstrate that the witness was completely unaware
    of the documents alleged to have been submitted by him as evidence. The
    statements do not inspire confidence that the Nirmohi Akhara was exercising
    management rights as the shebait.
  9. Mr S K Jain then relied on the Examination-in-Chief by way of affidavit of
    Raja Ram Pandey (DW 3/2) wherein it was stated:
    ―14. …Before attachment of Garb Grah and till the taking over
    of its charge by the receiver, I have seen the Priest and the
    Assistant Priest of Nirmohi Akhara reciting Aarty, offering
    deferential situations and giving ‗prasad‘ and ‗Charanamrit‘
    and similarly I have seen upto February, 1982 the Priest, The
    Assistant Priest the Panch of Nirmohi Akhara reciting Aarti
    and performing ‗pooja‘ (worship) in ‗Chabootra Mandir and
    ―Chhati Poojan sthal‖.‖
    As noted above, a pujari who conducts worship at a temple is not elevated to the
    status of a shebait. A pujari gains no independent right despite having conducted
    the ceremonies for a long period of time. Thus, the mere presence of pujaris does
    not vest in them any right to be shebaits. The mere performance of the work of a
    pujari does not in and of itself render a person a shebait. The statement of DW
    3/2 establishes at the highest that some priests of Nirmohi Akhara were acting as
    pujaris, but does not evidence the exercise of management rights for the
    recognition of their status as a shebait.
  10. Mr S K Jain also placed reliance on the testimony of Sri Acharya Mahant
    Bansidhar Das alias Uriya Baba (DW 3/18) in Suit 3 to contend that Nirmohi
    Akhara had been exercising management rights over the disputed site, including
    PART N
    431
    the performance of pujas. DW 3/18 was an intermittent resident of Ramkot,
    Ayodhya since 1930 and claimed to have lived at various temples and religious
    shrines in close proximity to the disputed site. During his Examination-in-Chief,
    DW 3/18 states:
    ―In 1930 I went for darshan of Shri Ram Janam Bhoomi
    Mandir about which the suit is subjudice. At that time too
    Bhagwan Ram Lalla was sitting there, I took darshan and also
    took prasad, Aarti and charnamrit (sacred water). I had been
    receiving prasad, Aarti and Charnamrit from the Priest
    and Sadhus of Nirmohi Akhara living in the outer part i.e. in
    the Sant Niwas and store rooms situated in the north of main
    eastern gate, called Hanumatha dwar, in the north of Ram
    Chabutra.‖
    (Emphasis supplied)
    The witness stated that the priests in charge of the puja were priests of Nirmohi
    Akhara. However, under cross-examination by learned Senior Counsel Mr Jilani,
    the witness stated:
    ―…First of all, I have darshan of Ramchabutra, then
    Ramlalla, Sita Kitchen and to Shankar Chabutra and from
    there I used to come back. Sometime I used to offer prasada
    while having darshan to Pujari (Priest) for offering in the inner
    side. I do not remember the name of Priest. Priest kept on
    changing. He himself said that Mahant of Hanumangarhi
    Faizabad remained the Priest for long time. I do not
    remember his name at present. On being reminded by
    learned cross-examiner advocate, he said priest name
    was Bhaskar Das.

    Bhaskar Dasji remained the priest of the disputed site for
    years but he was not a Mahant of Nirmohi Akhara ever.
    He was a priest of Hanumangarhi, Faizabad. At present
    he is neither a Mahant of Nirmohi Akhara nor a priest. He
    is a member of the committee. I do not know how many
    members are there in a committee.‖
    (Emphasis supplied)
    Despite the initial statement that it was Nirmohi Akhara that performed the puja at
    the disputed site, the witness contradicts this statement under cross examination.
    The witness stated that it was one Bhaskar Das who performed puja. Bhaskar
    PART N
    432
    Das, according to the witness himself, was not associated with the Nirmohi
    Akhara. The contradictory stance of the witness cannot be relied upon to
    establish that Nirmohi Akhara were exercising management rights or even
    conducting the performance of the puja at the disputed site prior to 1949.
  11. The testimony of several of the witnesses relied upon by the plaintiffs in
    Suit 3 is riddled with inconsistencies and contradictions. The testimony of DW
    3/18 is no different. During his testimony he stated:
    ―…The size of chabutra was about three-four feet, three feet
    in width and at one and half feet high from the ground level.
    This chabutra was just below the mid dome and is made
    of cement and bricks. This chabutra was at distance of two
    feet from western wall and was in the east…

    It is not correct to say that 5-6 thousand Hindus have kept the
    idols there on the night of 22/23.12.49, by making forceful
    entry into. It is also not correct to say these people have
    desecrated the Masjid. It is also not correct to say that
    idols were kept there in the night because idols have
    already been there. The point reported in the F.I.R. that idols
    were kept on the night of 22.12.1949, was incorrect….‖
    (Emphasis supplied)
    During the course of this judgement a wealth of evidence has been produced by
    the parties. There is no evidence to suggest that the Ramchabutra was ever
    under the central dome of the mosque or that the idols existed inside the mosque
    prior to December 1949. The witness further goes on to state:
    ―Telling a lie have been described as a sin in the
    dharmshastras. But if by telling a lie, proves a savior then
    there is no harm in telling a lie. Similarly there is no harm in
    telling a lie by a person who is dying of hunger. If there is a
    religious place and if somebody is acquiring it through
    wrong means or forcibly occupying them, there is no
    harm in telling a lie. If the religious place is taken away
    forcibly by others by telling a lie then it is correct.‖
    (Emphasis supplied)
    PART N
    433
    In light of these statements by the witness no reliance can be placed on his
    testimony.
  12. Mr S K Jain has relied on the statement of Mr Jilani recorded on 22 April
    2009 under Order X Rule 2 of the Code of Civil Procedure where it was stated:
    ―…the existence of Nirmohi Akhara from the second half of
    nineteenth century onwards is also not disputed. It is however
    denied and disputed that Nirmohi Akhara was in existence
    and special in Ayodhya in 16th century AD or in 1528 AD and
    it also denied that any idols were there in the building of the
    Babri Masjid up to 22nd December, 1949.‖
    There is a distinction between the mere presence of Nirmohi Akhara at Ayodhya
    or around the disputed site and the actual possession and management of the
    disputed site. A mere presence within an area or possession of an area is not
    sufficient to be vested with the powers of a shebait. Nothing in Mr Jilani‘s
    statement demonstrates or concedes management or even possession by
    Nirmohi Akhara.
  13. Reliance was then placed on the oral testimony of plaintiff witnesses in
    Suit 5. Mr S K Jain urged that these witnesses have admitted that it was the
    priests of the Nirmohi Akhara who were managing the idols at the disputed
    structure, before and after attachment. It was submitted that as the witnesses in
    Suit 5 had admitted the status of the Nirmohi Akhara as shebaits, no more
    evidence was required to be placed before this Court to establish that the
    Nirmohis are the shebaits. The relevant portions of these witness statements are
    as follows:
    PART N
    434
    (i) Sri Mahant Paramhans Ram Charan Das (OPW-1)
    ―… Before attachment, Hindus had been going to Garba Griha
    without any restrictions for having Darshan. Idols of Lord
    Saligram, Hanumanji and Ramlalla were installed there.
    People Belonging to the Nirmohi Akhara never obstructed any
    Hindu from going to the Garba Griha. Members of the Nirmohi
    Akhara used to manage Garbha Griha before attachment…‖
    (ii) Deoki Nandan Agarwal (OPW-2)
    ―…Bairagis of Nirmohi Akhara who used to worship at the
    Ram Chabutra did not allow muslims to enter inside.
    Therefore Namaz could never be performed in this place in
    spite of efforts made constantly”
    ―…Worship of idols which existed earlier on Ram Chabutra
    and of the idol installed after 1949 was got done only by the
    two people of the Nirmohi Akhara till a quarrel arose with
    Dharamdasji‖
    (iii)Shri Ram Nath Panda @ Bansari Panda (OPW-5)
    ―In the Barred wall, there were two doors which used to
    remain locked and those doors were opened and closed by
    the Pujaris of the Nirmohi Akhara. The same very pujari used
    to offer prayers and perform Arti at Ram Chandra and Sita
    Rasoi Etc. We used to arrange Darshan of the Garbh Griha
    for the pilgrims from the railing itself. A Donation box was also
    kept there. On the main gates were the shops of Batasha and
    flowed/garlands. One of those belong to Sehdev mali.‖
    ―…The key of the lock used to be in the possession of people
    of Nirmohi Akhara and whose pujari would open the lock,
    close the lock, and perform Arti puja and sounded bells and
    bugles…‖
    ―…from 1949 to 1970, I used to go to Ram Janm Bhumi
    Temple regularly. After the attachment of 1949, the receiver
    of Garbh Girha-Babu Priya Dutt Ram became the chairman of
    the Municipality Faizabad and at places like Ram Chabutra
    Temple, Chhathi Puja Sthal, Bhandar Sthal and Shiv Darbar
    Puja continued to be performed in the same way as before
    PART N
    435
    and was performed by the same people who used to perform
    it before…‖
    The testimony of the plaintiff witnesses in Suit 5 have been selectively extracted
    and do not bear out the conclusion that Nirmohi Akhara was a shebait. The
    statements of OPW – 1 that Nirmohi Akhara managed the inner courtyard are not
    supported by the evidence adduced, on which findings are recorded elsewhere in
    this judgement. Similarly, the isolated statement by OPW – 5 that the Nirmohis
    possessed the key to the outer courtyard is not corroborated by any other
    statements. If the Nirmohis possessed the key to the outer courtyard, every
    visitor to the disputed site, whether Hindu or Muslim, would have required the
    permission of the Nirmohis to enter. If true, such a state of affairs would have
    surely been recorded by other witnesses in their testimony. The statement of
    OPW – 2 once again merely indicates the presence of the Nirmohis in and
    around the disputed site. It indicates a disagreement between the Nirmohis and
    Dharam Das about the movement of the idols to the inner courtyard in 1949. This
    statement undermines the claim of the Nirmohis as exclusive managers of the
    deity as it evidences disagreement about the placement of the idols. The
    continued disavowal of the events of 22/23 December by the Nirmohi Akhara
    lends credence to this observation.
  14. The oral testimony relied on by Nirmohi Akhara establishes, at best, that
    they were present in and around the disputed site. However, the presence of the
    Nirmohis around the disputed site does not amount to the exercise of
    management rights which entitle them in law to the status of a de facto shebait.
    PART N
    436
    The oral evidence in Suit 3 upon which reliance was placed is riddled with
    inconsistencies and does not bear out the conclusion that Nirmohi Akhara
    exercised management rights on behalf of the idols of Lord Ram. The oral
    evidence of the three witnesses in Suit 5 has been selectively extracted and the
    statements therein are not corroborated by the testimony of any other witness.
    Independent of the oral testimonies, Nirmohi Akhara has placed reliance upon
    documentary evidence to establish its status as shebait of the idols at the
    disputed site. These documents are as follows:
    (i) The complaint dated 25 September 1866 by Meer Rajab Ali Khateeb
    against Tulsidas regarding the ―Kothri‖ constructed by certain bairagis
    inside the compound of the mosque;
    (ii) Exhibit 30 – Suit 1: The appeal dated 13 December 1877 by Mohd.
    Asghar against Mahant Khem Das with respect to the order permitting
    the construction of a new gate on the northern side;
    (iii) Exhibit 7 – Suit 5: Gazetteer of the Province of Oudh (1877-78);
    (iv) Exhibit 24 – Suit 1: The plaint dated 8 November 1882 in the suit
    instituted by Syed Mohd. Asghar against Mahant Raghubar Das
    seeking rent for the use of the Chabutra;
    (v) Exhibit 28 – Suit 1: The complaint dated 27 June 1884 by Mahant
    Raghubar Das seeking spot inspection in view of the work being
    carried out by Syed Mohd. Asghar for painting the mosque;
    PART N
    437
    (vi) Exhibit A-22 – Suit 1: Suit dated 19 January 1885 filed by Mahant
    Raghubar Das seeking permission for the construction of a temple on
    the site of the Ramchabutra;
    (vii) Exhibit 8 – Suit 3: Copy of agreement dated 11 June 1900 permitting
    Jhingoo (son of Gaya) to provide drinking water to the pilgrims visiting
    Ram Janmabhumi site at Ayodhya;
    (viii) H R Nevill‘s ―The Gazetteer of the United Provinces of Agra and Oudh‖
    (1905) stating that the Nirmohi Akhara sect formerly held the
    Janmasthan temple in Ramkot, the remains of which still belong to
    them;
    (ix) Exhibit 9 – Suit 3: Copy of agreement dated 13 October 1942
    regarding the Theka Shop of Janmabhumi Ram Kot Ayodhya executed
    by Narottam Das in favour of Gopal (son of Babu);
    (x) Exhibit 10 – Suit 3: Agreement dated 29 October 1945 executed in
    respect of a shop by Mahant Raghunath Das;
    (xi) Exhibit 49 – Suit 4: Mutation entry in favour of the Mahant Raghunath
    Das; and

(xii) Statement by DW – 10 by Umesh Chandra Pandey.
It was further contended that while the Supurdaginama, by which the Receiver
took possession does not record from whom possession was taken, the
document indicates the presence of the Nirmohi Akhara in the outer courtyard.
PART N
438
Lastly, it was urged that after the interim order was passed in the Section 145
proceedings, the seva-puja continued ―as before‖ and was conducted by the
priests of the Nirmohi Akhara.

  1. Nirmohi Akhara urged that the presence of numerous Bairagis of the
    Nirmohi Akhara at the disputed site evidences the exercise of management
    rights. To support this, Nirmohi Akhara relied on the following:
    (i) Edward Thornton (1854, Gazetteer of the territories under the
    Government of East India Company) refers to the presence of about 500
    Bairagis;
    (ii) Letter dated 29 November 1949: Kripal Singh, the then Superintendent of
    Police at Faizabad addressed a letter to K K Nayar, the Deputy
    Commissioner mentioning that ―several thousand Hindus, Bairagis and
    Sadhus‖ are to participate in the performance of the proposed Kirtan;
    (iii) Letter dated 16 December 1949: K K Nayar (the Deputy Commissioner
    and District Magistrate, Faizabad) addressed a communication to Govind
    Narayan stating that ―some time this year probably in October or
    November some grave-mounds were partially destroyed apparently by
    Bairagis who very keenly resent Muslim associations with this shrine‖; and
    (iv) Reference is also made to the presence of the Bairagis in the report of
    Waqf Inspector dated 23 December 1949 marked as Exhibit A-64 in Suit 1.
    PART N
    439
    The evidence relied on by the Nirmohi Akhara in this regard, evidences at best
    the presence of the Bairagis of the Nirmohi Akhara at the disputed site. No other
    credible documents or evidence was produced to show that these Bairagis in fact
    exercised the rights of management of a shebait.
  2. The complaint of 25 September 1866 filed by Meer Rajab Ali Khateeb
    states that it is filed against one ‗Tulsidas‘. Nirmohi Akhara sought to rely on oral
    evidence to prove that Tulsidas was in fact a Mahant of the Nirmohis and that it
    was Nirmohi Akhara who constructed the ―Kothri‖. It has already been held that
    the oral evidence relied on by the Nimohis to substantiate their claim is not
    reliable. The document itself does not prove that Tulsidas was a Mahant of the
    Nirmohis nor that the construction was carried out by the Nirmohis. It is not
    corroborated by any other documentary evidence ordinarily associated with such
    a construction at the time and does not evidence the exercise of rights as a
    shebait.
  3. Exhibits 8, 9 and 10 in Suit 3 establish that the Nirmohis were providing
    various services to the pilgrims visiting the disputed structure. However, all three
    exhibits pertain to the grant of permission to provide these services outside the
    disputed structure. At its highest, these exhibits show that the Nirmohis were
    present in and around the disputed structure and assisted the pilgrims. It does
    not however evidence any management over the idols or the disputed site itself.
  4. Significant reliance was placed on the role of Mahant Rahubar Das as a
    Mahant of the Nirmohi Akhara. Reliance in this regard was placed on Exhibits 24
    PART N
    440
    (suit dated 8 November 1882 filed for the collection of rent), Exhibit 28
    (complaint dated 27 June 1884 seeking plot inspection) and Exhibit A-22 (1885
    suit filed for the construction of a temple on the Ramchabutra) in Suit 1 adverted
    to above. It was contended that Mahant Raghubar Das filed the above suits as a
    Mahant of the Nirmohi Akhara. On this basis, it was contended that the
    management and charge of the deity was taken care of by the Nirmohi Akhara. A
    closer analysis reveals the numerous contradictions in the stand of the Nirmohi
    Akhara with respect to Mahant Raghubar Das. In the Suit of 1885, Mahant
    Raghubar Das claimed to be the ―Mahant, Janmasthan, Ayodhya‖. In the written
    submissions filed by Nirmohi Akhara it was stated that Mahant Raghubar Das
    filed the Suit of 1885 in a personal capacity:
    ―…the said suit [1885] was filed by Mahant Raghbar Das in
    his personal capacity without even mentioning the name
    of Nirmohi Akhara and in any case the subject property in
    the said suit – (Chabutra in Outer Courtyard) was different
    from the suit-property (Inner Courtyard) which is the subject
    matter of OOS No. 3‖.
    (Emphasis supplied)
    However, in the same written submissions, while speaking of the report of the
    Waqf Inspector dated 23 December 1949, it was said:
    ―He mentions the name of Mahant Raghubar Das along with
    others who invited the Muslims for talks. Mahant Raghubar
    Das is the Mahant of Nirmohi Akhara.‖
    (Emphasis supplied)
    In the replication, Nirmohi Akhara disavowed any awareness about the suit by
    Mahant Raghubar Das:
    ―…The plaintiffs are not aware of the said suit, if any, filed by
    any person known as Mahant Raghubar Das as Mahant of
    Janma Asthan.‖
    PART N
    441
    In the Written Statement filed on the behalf of Nirmohi Akhara in Suit 4, it was
    stated:
    ―…The answering defendants are not aware of any suit
    having been filed by any person known as Mahant Raghubar
    Dass styling himself to be the Mahant of Janam Asthan…‖
    In the suit of 1885, Mahant Raghubar Das claimed to be the Mahant,
    Janmasthan, Ayodhya. In the oral hearings before this Court as well as the
    hearings before the High Court, Nirmohi Akhara claimed that Mahant Raghubar
    Das was a Mahant of Nirmohi Akhara. Justice Sudhir Agarwal makes the
    following observation:
    ―964. What we have already noticed, it has not been disputed
    by Nirmohi Akhara that in 1885 Raghubar Das was Mahant of
    Nirmohi Akhara…‖
    It is clear from the above extracts that Nirmohi Akhara sought to espouse Mahant
    Raghubar Das as a Mahant of the Nirmohi Akhara to establish that they have
    acted as shebaits since the 1800s. Yet they distance themselves from the
    Mahant when dealing with the question of res judicata. Nirmohi Akhara even
    stated that it was unaware of the Suit of 1885. The inconsistent stance of the
    Nirmohi Akhara with respect to Mahant Raghubar Das leads to an adverse
    inference against them.
  5. The documentary evidence which has been produced by Nirmohi Akhara
    does not show that it was managing the property in question. Apart from the
    documentary evidence analysed above which does not further the case of
    PART N
    442
    Nirmohi Akhara, no evidence has been produced to show the exercise of
    management rights by Nirmohi Akhara. Stray acts do not constitute sufficient
    evidence to establish continuous, exclusive and uninterrupted exercise by
    Nirmohi Akhara of the rights and duties of a de facto shebait. No document that
    evidences repairs, construction, appointment of pujaris, or other activities has
    been produced before this Court. Significantly, apart from a stray reference in the
    account of the travellers, no document of Nirmohi Akhara has been put on record
    to show the exercise of management rights. The customs of Nirmohi Akhara were
    reduced to writing by a registered deed only on 19 March 1949.
  6. When a question was put to Mr S K Jain to produce the original documents
    that establish the claim of the Nirmohi Akhara as shebaits, it was contended that
    an alleged dacoity had led to loss of the documents necessary to substantiate the
    claim. To substantiate this claim, it was contended that an FIR was filed on 18
    February 1982 against Dharam Das. However, in the written submission
    submitted by the Nirmohis, it is stated that though Dharam Das remained in jail
    for two months, the case was subsequently quashed on the basis of a
    compromise. No documents have been adduced to substantiate this claim other
    than a reliance on the statement of a single witness – Raja Ramachandracharya
    (DW 3/20). This argument is an attempt to gloss over the glaring absence of any
    substantial proof of the exercise of management rights by the Nirmohis to confer
    on them the status of a shebait. The position of a shebait in law is of crucial
    significance. The shebait is the human ministrant and custodian of the idol and
    acts as its authorised representative. The shebait is vested with the right to bring
    an action on behalf of the deity and bind it. In this view, the claim of Nirmohi
    PART N
    443
    Akhara that it is a de facto shebait on the basis of the oral and documentary
    evidence on record has been analysed and it has been found that the claim has
    not ripened into shebait rights.
  7. A claim of rights as a de facto shebait must be substantiated with proof
    that person is in exclusive possession of the trust property and exercises
    complete control over the right of management of the properties without any let or
    hindrance from any quarters whatsoever. For all practical purposes, this person is
    recognised as the person in charge of the trust properties. Though it cannot and
    has not been denied in the present proceedings that Nirmohi Akhara existed at
    the disputed site, the claim of Nirmohi Akhara, taken at the highest is that of an
    intermittent exercise of certain management rights. Their rights were peripheral,
    usually involving the assistance of pilgrims, and were constantly contested. As
    held above, a stray or intermittent exercise of management rights does not confer
    upon a claimant the position in law of a de facto shebait. It cannot be said that the
    acts of Nirmohi Akhara satisfy the legal standard of management and charge that
    is exclusive, uninterrupted and continuous over a sufficient period of time.
    Despite their undisputed presence at the disputed site, for the reasons outlined
    above, Nirmohi Akhara is not a shebait.
  8. In light of the holding that Nirmohi Akhara is not the shebait for the idols of
    Lord Ram at the disputed site, it was open for an interested worshipper to sue on
    behalf of the deity. There existed no recognised shebait in law. In such a situation
    the idol‘s independent right to sue was exercised through its next friend, a
    PART N
    444
    worshipper interested in the protection of the idol and its interests. Suit 5 is
    maintainable as a suit instituted by a next friend on behalf of the first and second
    plaintiffs in the absence of a lawfully recognised shebait.
  9. Mr Jaideep Gupta, learned Senior Counsel appearing on behalf of Mahant
    Shri Dharam Das, respondent 12 in the present appeal urged that he is the
    successor (Chela) of Late Baba Abhiram Das, who was the priest of the Ram
    Janmabhumi temple before 1949. The present respondent is the Mahant of Akhil
    Bhartiya Sri Panch Nirvani Ani Akhara and Mahanth of Hanuman Garhi,
    Ayodhya. Late Baba Abhiram Das was defendant no 13/1 in Suit 4 and
    Defendant no 14 in Suit 5 and upon his death, the present respondent was
    substituted as defendant in the said suits. It is submitted that Late Baba Abhiram
    Das was the pujari of Janmasthan temple and played an instrumental role in its
    affairs. It has been submitted that prior to 1949, Late Baba Abhiram Das
    conducted the puja and even after the idol was placed inside the disputed
    structure, he continued to perform puja till 5 January 1950 when the receiver took
    charge. It is submitted that the present defendant being the chela of Late Baba
    Abhiram Das, is entitled to perform sewa-puja and bhog at the disputed structure
    as the shebait. In support of the above, the following submissions have been
    urged:
    (i) The idol of Lord Ram was placed at the disputed structure in the
    intervening night of 22-23 December 1949. The deity after being placed
    inside the three domed structure (pratishthit) and the Ramjanmabhumi
    PART N
    445
    (swayambhu) are juristic persons and have the right and title over the
    disputed structure;
    (ii) Nirmohi Akhara cannot claim to be the shebait with respect to the
    juristic entities after having denied their existence in their pleadings.
    When the incident took place in the intervening night of 22-23
    December, no individual of Nirmohi Akhara was present there and no
    members of the Nirmohi Akhara were named as accused persons in
    the proceedings;
    (iii) The respondent is the only person who can claim to be a shebait of the
    shrine of Ram Lalla and Janmabhumi. Respondent‘s Guru Late Baba
    Abhiram Das along with several others resolved to restore the sacred
    Janmasthan to its pristine glory by taking a collective vow on the
    occasion of Vijayadashmi at a public meeting held on 2 October 1949,
    pursuant to which the surrounding area around the disputed site was
    sanitised. This was followed by Navahana pathas, Japa and Sankirthan
    both inside and outside the three domed structure;
    (iv) As long there exists a shebait, the management of the deity cannot be
    handed over to the next friend or the Ram Janmabhumi Nyas in Suit 5.
    Both Suit 1 and Suit 5 have been filed in a personal capacity and no
    management or possession can be handed over to them; and
    (v) The fact that Late Baba Abhiram Das was the pujari/priest/shebait of
    the deity has been established from the following facts and records:
    (a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who was the Sarpanch of
    Nirmohi Akhara in his cross examination stated and confirmed that
    PART N
    446
    Late Baba Abhiram Das was the priest of the disputed structure and
    not the priest of Nirmohi Akhara;
    (b) In his statement dated 29 December 1950 given before the
    Magistrate under Section 145, Late Baba Abhiram Das had
    categorically stated that he and his other co-pujaris had been
    maintaining and managing the Janmabhumi temple and the
    surrounding land since 1934;
    (c) The respondent stated before the High Court that various religious
    functions at the disputed premises were organised under the
    supervision of his Guru, Late Baba Abhiram Das and electricity
    connections were also in his name;
    (d) Mohd Hashim, who is plaintiff no 7 in Suit 4 and defendant no 3 in
    Suit 5 stated in his cross examination that the idols were placed
    inside the mosque by Abhiram Das, Dharam Das and others;
    (e) On 30 April 1992, Late Deoki Nandan Agarwal, plaintiff 3 in Suit 5
    had stated that the idol was placed inside the central dome on 22-23
    December 1949 by Shri Paramhans Ramchandra and Late Baba
    Abhiram Das along with others;
    (f) Late Baba Abhiram Das has been named as accused no 1 in both
    the FIR dated 23 December 1949 and chargesheet dated 1
    February 1950 for placing the idol inside the disputed structure. Late
    Baba Abhiram Das has submitted that he is the pujari of the Ram
    Janmabhumi in the bail bond dated 1 February 1950;
    PART N
    447
    (g) The District Magistrate, Faizabad in his report dated 23 December
    1949 observed that the crowd was controlled by permitting two or
    three persons including Abhiram Das, Ram Shukal Das and
    Sudarshan Das to offer bhog to the idol inside the disputed
    structure; and
    (h) By an application dated 21 December 1962, Late Baba Abhiram
    Das applied for permission before the receiver for organising the
    program of 62 jayanti Samaroh. It is stated that the said Samaroh
    had been held each year and organised by Late Baba Abhiram Das
    and Janam Bhoomi Sewa Samiti.
  10. The dispute inter se between Nirmohi Akhara and Nirvani Ani Akhara is not
    the subject matter of the existing dispute. Nirvani Ani Akhara has not pursued any
    proceedings of its own to establish its claim. The claim that Nirmohi Akhara was a
    shebait has been rejected. In discussing Nirmohi Akhara‘s claim, it has been held
    that to establish a claim as a shebait or even as a de facto shebait, one needs to
    rely on evidence that indicates more than a mere act of performing the functions
    of a priest. A pujari is merely a servant or appointee of a shebait and gains no
    independent right as a shebait despite having conducted ceremonies over a
    period of time. All the evidence relied upon to support the claim of Late Baba
    Abhiram Das is restricted to his having performed puja at the disputed premises
    and does not confer any shebaiti rights.
    PART N
    448
    N. 7 Limitation in Suit 5
  11. The cause of action leading to the institution of Suit 5 has been pleaded in
    paragraphs 14, 18, 30 and 36 of the plaint which read as follows:
    ―14.That the plaintiff Deities and their devotees are extremely
    unhappy with the prolonged delay in the hearing and disposal
    of the said suits and the deteriorating management of the
    affairs of the Temple, particularly the way the money offered
    by the worshippers, who come in great numbers, is being
    misappropriated by the Pujaries and other Temple staff, and
    the receiver has not controlled this evil. Further devotees of
    the Plaintiff Deities are desirous of having a new Temple
    constructed, befitting their pristine glory, after removing the
    old structure at Sri Rama Janam Bhumi, Ayodhya.
  12. That although the aforesaid suits have been pending trial
    for such an extraordinarily long number of years, they are
    inadequate and cannot result in a settlement of the dispute
    which led to their institution or the problems arising there
    from, in as much as neither the presiding Deity of Bhagwan
    Sri Rama Virajman nor the Asthan Sri Rama Janma Bhumi,
    the Plaintiffs Nos. 1 and 2 herein, who are both juridical
    persons, were impleaded therein, although they have a
    distinct personality of their own, separate from their
    worshippers and sewaks, and some of the actual parties
    thereto, who are worshippers, are to some extent involved in
    seeking to gratify their personal interests to be served by
    obtaining a control of the worship of the Plaintiff Deities.
    Moreover, the events which have occurred during these four
    decades, and many material facts and points of law require to
    be pleaded from the view point of the Plaintiff Deities, for a
    just determination of the dispute relating to Sri Rama Janma
    Bhumi, Ayodhya, and the land and buildings and other things
    appurtenant thereto. The Plaintiffs have been accordingly
    advised to file a fresh suit of their own.
  13. That the Hindu Public and the devotees of the Plaintiff
    Deities, who had dreamed of establishing Ram-Rajya in Free
    India, that is, the rule of Dharma and righteousness, of which
    Maryada Purushottam Sri Ramchandra Ji Maharaj was the
    epitome, have been keenly desirous of restoring his
    Janamsthan to its pristine glory, as a first step towards that
    PART N
    449
    national aspiration given to us by Mahatma Gandhi. For
    achieving this, they are publicly agitating for the construction
    of a grand Temple in the Nagar style. Plans and a model of
    the proposed Temple have already been prepared by the
    same family of architects who built the Somnath Temple. The
    active movement is planned to commence from September
    30, 1989, and foundation stone of the new Temple building, it
    has been declared, shall be laid on November, 9, 1989.
  14. That the cause of action for this suit has been
    accruing from day to day, particularly since recently
    when the plans of Temple reconstruction are being
    sought to be obstructed by violent action from the side of
    certain Muslim Communalists.‖ (Emphasis supplied)
    The above averments of the cause of action comprise of the following
    components:
    (i) A prolonged delay in the hearing and disposal of Suits 1, 3 and 4;
    (ii) Deterioration in the management of the affairs of the temple and the failure
    of the receiver to control it;
    (iii) Offerings by the worshippers have been misappropriated by the pujaris
    and temple staff;
    (iv) The first and second plaintiffs who are claimed to be juridical persons were
    not impleaded as parties to the earlier suits;
    (v) The worshippers and sevaks and some of the parties to the suits are
    seeking to pursue their own personal interest in seeking control of the
    worship of the deities;
    (vi) Hindu devotees have been agitating for the construction of a new temple
    for which plans have been prepared; and
    (vii) Plans for reconstruction are sought to be obstructed ―by violent action from
    the side of certain Muslim communalists‖.
    PART N
    450
  15. Suit 5 was instituted for ―a declaration that the entire premises of Sri Ram
    Janmabhumi at Ayodhya, as described and delineated in Annexures I, II and III
    belong to the plaintiff deities‖ and for a consequential perpetual injunction.
    Annexures I, II and III were described in paragraph 2 of the plaint as ―two site
    plans of the building premises and of the adjacent area known as Sri Rama
    Janma Bhumi, prepared by Shiv Shankar Lal Pleader … along with his Report
    dated 25.05.1950.‖ After the decision of the Constitution Bench of this Court in Dr
    M Ismail Faruqui v Union of India238, the dispute has been circumscribed to the
    area comprised in the inner and outer courtyards.
    Suit 5 was instituted on 1 July 1989, on which date, the Limitation Act 1963 was
    in force.
    Submissions
  16. Setting up the bar of limitation, Dr Rajeev Dhavan, learned Senior Counsel
    appearing on behalf of the Sunni Central Waqf Board, canvassed the following
    propositions:
    (a) Section 10 of the Limitation Act 1963 has no application to the present
    case since the provision applies to a suit against a person in whom
    property has become vested in trust for any specific purpose, or his legal
    representative or assigns (other than for lawful consideration) for following
    in his or their hands the property or the proceeds thereof or for an account
    of the property or proceeds;

238 (1994) 6 SCC 360
PART N
451
(b) The suit could not have been instituted when the deity was being ―well
represented‖ through its shebait – the Nirmohi Akhara – and no removal of
the shebait has been sought on account of a grievance bearing on
misconduct;
(c) The defence that a deity is a perpetual minor will not aid the plaintiffs in
Suit 5 for the reason that the deity was represented by the shebait and a
suit can be instituted by a worshipper as a next friend only when the
shebait is found to have acted adversely to the interest of the deity.
However, no allegation has been made by the next friend against the
shebait;
(d) It is a settled principle of law that limitation runs against a perpetual minor;
and
(e) Suit 5 is not maintainable as there was no cause of action for instituting it.
Even otherwise, whichever provisions of the Limitation Act are applicable,
Suit 5 would be barred by limitation.
On 23 September 2019, Dr Dhavan during the course of his oral submissions
responded to the submissions of Mr Parasaran on limitation. While doing so, Dr
Dhavan proceeded on the basis that Mr Parasaran had sought the benefit of
Section 10 of the Limitation Act in submitting that the suit was within limitation.
Subsequently, on 24 September 2019, in the fair tradition of the Bar of this Court,
Dr Dhavan clarified that he was informed by Mr Parasaran that he was not taking
the benefit of Section 10 and did not make a submission seeking the benefit of
PART N
452
that provision. Dr Dhavan hence urged that the submissions under Section 10 be
read as submissions urged by him.

  1. Mr Parasaran urged that the contentions of Dr Dhavan, appearing for the
    Defendant-Sunni Waqf Board proceed on the footing that the plaintiffs are not
    juridical persons and that the Mahant of Nirmohi Akhara is a valid shebait both for
    the first and second plaintiffs. On the issue of limitation, the three judges of the
    Allahabad High Court unanimously held in favour of the plaintiffs (except that
    Justice S U Khan did not determine as to whether the second plaintiff is a juristic
    person). Hence, Mr Parasaran urged that the issue of limitation would depend
    upon the findings of this Court on issues 1,6 and 8239 in Suit 5 and in the event
    that these issues are held in favour of the plaintiffs in Suit 5, the attack of the
    defendants to the suit being barred by limitation would, in consequence, fail.
  2. At the outset, it is necessary to record that in the course of the present
    judgment, it has been held that:
    (i) Nirmohi Akhara has failed to establish its case of being a shebait;
    (ii) As a consequence of (i), the challenge to the maintainability of Suit 5 on
    the ground that it was only Nirmohi Akhara as shebait which could have
    instituted the Suit must fail; and
    (iii) The first plaintiff in Suit 5 is a juristic person.

239 Issue 1: Whether the first and second plaintiffs are juridical persons.
Issue 6: Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their next friend and is the suit not competent
on this account.
Issue 8: Is the defendant Nirmohi Akhara the ―Shebait‖ of Bhagwan Sri Ram installed in the disputed structure.
PART N
453
The issue of limitation would hence be addressed on the basis of the above
position.
Essentially, the Sunni Central Waqf Board in the course of its submissions sought
to assail the findings of the High Court on limitation on three broad grounds:
(i) Suit 5 could not have been instituted when the deity was being ‗well
represented‘ through its shebait against whose conduct there is no
grievance and since the removal of the shebait has not been sought;
(ii) The defence of the deity being a perpetual minor cannot aid the plaintiffs
since the deity was being represented by a shebait and a suit by a next
friend can lie only when the shebait has acted adverse to the interest of the
deity; and
(iii) It is a settled principle of law that a deity is not a minor for the purpose of
limitation.
The first and the second grounds noted above now stand concluded by the
finding that Nirmohi Akhara was not a shebait and hence Suit 5 has been held to
be maintainable at the behest of the next friend.
The issue which then falls for consideration at this stage, is as to whether Suit 5
can be held to be within limitation on the ground that a deity is a perpetual minor.
This submission of Mr C S Vaidyanathan, learned Senior Counsel appearing on
behalf of the plaintiff in Suit 5, it is again necessary to reiterate would govern the
first plaintiff alone which has been held to be a juristic person.

PART N
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A statute of repose

  1. The law of limitation is embodied in a statute which is based on the
    principles of repose or peace, as held by this Court in Pundlik Jalam Patil v
    Executive Engineer, Jalgoan Medium Project240:
    ―An unlimited and perpetual threat of limitation creates
    insecurity and uncertainty; some kind of limitation is essential
    for public order…‖
    The applicability of the provisions of the Limitation Act cannot be extended by
    analogy or implication. The right to claim in perpetuity is embodied in a specific
    situation which is referred to in Section 10 and the ambit of the provision cannot
    be extended as a matter of implication. Before 1929, Section 10 was cast in the
    following terms:
    ―10. Suits against trustees and their representatives. –
    Notwithstanding anything contained in the foregoing provions
    of this Act, no suit against a person in whom property has
    become vested in trust for any specific purpose, or against his
    legal representatives or assigns (not being assigns for
    valuable consideration), for the purpose of following in his or
    their hands such property, or the proceeds thereof or for an
    account of such property or proceeds, shall be barred by any
    length of time.‖
    Section 10 was amended by the introduction of an explanation by the Indian
    Limitation (Amendment) Act 1929 (1 of 1929). As amended, the provision came
    to read as follows:
    ―10. Suits against express trustees and their representatives.
    – Notwithstanding anything hereinbefore contained, no suit
    against a person in whom property has become vested in
    trust for any specific purpose, or against his legal
    representatives or assigns (not being assigns for valuable
    consideration), for the purpose of following in his or their

240 (2008) 17 SCC 448
PART N
455
hands such property, or the proceeds thereof or for an
account of such property or proceeds, shall be barred by any
length of time.
Explanation : For the purposes of this section any property
comprised in Hindu, Mohammedan, Buddhist religious or
charitable endowment shall be deemed to be property vested
in trust for a specific purpose, and the manager of any such
property shall be deemed to be the trustee thereof.‖

  1. The background of the amendment is understood by considering the
    decision of the Privy Council in Vidya Varuthi Thirtha v Balusami Ayyar241
    .
    Dealing with the alienation of property, the decision had wider implications which
    led to the statutory changes which were brought in 1929. The Privy Council held:
    ―From the above review of the general law relating to Hindu
    and Mahommedan pious institutions it would prima
    facie follow that an alienation by a manager or superior by
    whatever name called cannot be treated as the act of a
    ―trustee‖ to whom property has been ―conveyed in trust‖
    and who by virtue thereof has the capacity vested in him
    which is possessed by a ―trustee‖ in the English law. Of
    course, a Hindu or a Mahommedan may ―convey in trust‖ a
    specific property to a particular individual for a specific and
    definite purpose, and place himself expressly under the
    English law when the person to whom the legal ownership is
    transferred would become a trustee in the specific sense of
    the term.‖ (Emphasis supplied)
    Alienation by a manager was held not to constitute an act of a trustee to whom
    property had been conveyed in trust in the same sense in which the expression
    was used in English law. As a result of the amendment of 1929, a deeming fiction
    was introduced consequent upon which property comprised in a Hindu,
    Mohammedan or Buddhist religious or charitable endowments was deemed to be
    property vested in trust for a specific purpose.
    Section 10 applies to suits filed against:

241AIR 1922 PC 123
PART N
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(i) A person in whom property has become vested in trust for a specific
purpose; and
(ii) Legal representatives and assigns of such a trustee.
However, it does not cover assigns of such a trustee for valuable consideration.
The suit can be filed for the purpose of:
(i) Following in the hands of the trustee such property;
(ii) Following in the hands of the trustee the proceeds of such property; and
(iii) For an account of such property or proceeds.
Significant in the opening words of Section 10 is the absence of the words ―by or
against‖. The Section, in other words, does not apply to suits by a trustee against
third parties. (See also in this context, the decision of a Division Bench of the
Madras High Court in Palaniandi Gramani Manickammal v V Murugappa
Gramani242). Section 10 has no application to Suit 5.
The argument of perpetual minority

  1. Mr C S Vaidyanathan, learned Senior Counsel, urged that the idol is a
    minor by legal fiction. Hence, no adverse title can be acquired against a minor. Dr
    Rajeev Dhavan, learned Senior Counsel, submitted that although a deity is
    treated as a minor because of its inability to sue except through a human agency,
    a deity is not a minor for the purposes of limitation. He submitted that the dictum

242 AIR 1935 Mad 483
PART N
457
in Bishwanath v Sri Thakur Radha Ballabhji243 that a deity is a perpetual minor
was not made in the context of limitation.

  1. In Bishwanath, this Court was tasked with deciding whether a worshipper
    can maintain a suit for eviction on behalf of the idol if the shebait acts adversely
    to the interest of the idol. Chief Justice Subba Rao, speaking for a two-judge
    bench of this Court, held thus:
    ―10. The question is, can such a person represent the idol
    when the Shebait acts adversely to its interest and fails to
    take action to safeguard its interest. On principle we do not
    see any justification for denying such a right to the
    worshipper. An idol is in the position of a minor when the
    person representing it leaves it in a lurch, a person
    interested in the worship of the idol can certainly be
    clothed with an ad hoc power of representation to protect
    its interest. It is a pragmatic, yet a legal solution to a
    difficult situation. Should it be held that a Shebait, who
    transferred the property, can only bring a suit for recovery, in
    most of the cases it will be an indirect approval of the
    dereliction of the Shebait’s duty, for more often than not he
    will not admit his default and take steps to recover the
    property, apart from other technical pleas that may be open to
    the transferee in a suit. Should it be held that a worshipper
    can file only a suit for the removal of a Shebait and for the
    appointment of another in order to enable him to take steps to
    recover the property, such a procedure will be rather a
    prolonged and a complicated one and the interest of the idol
    may irreparably suffer. That is why decisions have
    permitted a worshipper in such circumstances to
    represent the idol and to recover the property for the idol.
    It has been held in a number of decisions that
    worshippers may file a suit praying for possession of a
    property on behalf of an endowment…‖
    (Emphasis supplied)
  2. The suit in that case was instituted by Shri Thakur Radha Ballabhji, the
    deity represented by a next friend for possession of immoveable property and for

243 (1967) 2 SCR 618
PART N
458
mesne profits. The case of the plaintiff was that the second defendant, who was
the Sarvarakar and manager, had alienated the property to the first defendant
and the sale not being for necessity or for the benefit of the idol was not binding
on the deity. Both the trial court and on appeal, the High Court held that the sale
was not for the benefit of the deity and the consideration was not adequate. But it
was urged that the suit for possession could only have been filed by the shebait
and none else could represent the deity. It was in that context, that this Court
held that on principle there was no reason to deny to a worshipper a locus to
institute a suit challenging the alienation when the shebait had acted adversely to
the interest of the deity. The observation that the idol is in the position of a minor
was not made in the context of the provisions of the Limitation Act. The
observation was in the context of deciding whether a suit by a worshipper was
maintainable when the manager had dealt with the property adverse to the
interest of the deity. The dictum that the idol is in the position of a minor cannot
be construed to mean that the idol is exempt from the application of the Limitation
Act 1963.

  1. In B K Mukherjea‘s ―The Hindu Law of Religious and Charitable
    Trust‖
    244
    , the position of law has been thus summarised:
    ―A Hindu Idol is sometimes spoken of as a perpetual infant,
    but the analogy is not only incorrect but is positively
    misleading. There is no warrant for such doctrine in the rules
    of Hindu law and as was observed by Rankin, C.J. In
    Surendra V. Sri Sri Bhubaneswari, it is an extravagant
    doctrine contrary to the decision of the Judicial Committee in
    such cases as Damodar Das Vs. Lakhan Das. It is true that
    the deity like an infant suffers from legal disability and has got

244 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. Eastern Law House, (1983)
at pages 256-257
PART N
459
to act through some agent and there is a similarity also
between the powers of the shebait of a deity and those of the
guardian of an infant. But the analogy really ends there. For
purposes of Limitation Act the idol does not enjoy any
privilege and regarding contractual rights also the
position of the idol is the same as that of any other
artificial person. The provisions of the Civil Procedure
Code relating to suits by minors or persons of unsound
mind do not in terms at least apply to an idol; and to
build up a law of procedure upon the fiction that the idol
is an infant would lead to manifestly undesirable and
anomalous consequences.‖
245
(Emphasis supplied)
These are prescient words of a visionary judge. Over the years, Courts have
elucidated on the juristic character of the idol as a minor and the consequences
of this legal fiction.

  1. In 1903-4, the Privy Council in Maharaja Jagadindra Nath Roy Bahadur
    v Rani Hemanta Kumari Debi246 dealt with a case where the plaintiff, in his
    capacity as the shebait of an idol, had instituted suits for proprietary rights in
    certain property. The High Court held that the idol being a juridical person
    capable of holding property, limitation started running against him from the date
    of the transfer and hence the suit by the shebait was barred by limitation.
    The Privy Council concurred with the judges of the High Court that being a
    juridical person, the idol was capable of holding property. However, limitation was
    saved because when the cause of action arose, the shebait to whom the
    possession and management of the dedicated property belonged, was a minor.
    Hence, the Privy Council held that the right to institute a suit for the protection of

245 Ashim Kumar v. Narendra Nath 76 CWN 1016
246 (1903-04) 31 IA 203
PART N
460
the property vested in the idol could be brought within three years of the
attainment of majority of the shebait. Sir Arthur Wilson observed:
―But assuming the religious dedication to have been of the
strictest character, it still remains that the possession and
management of the dedicated property belong to the sebait.
And this carries with it the right to bring whatever suits are
necessary for the protection of the property. Every such right
of suit is vested in the sebait, not in the idol. And in the
present case the right to sue accrued to the plaintiff when he
was under age. The case therefore falls within the clear
language of s. 7 of the Limitation Act, which says that, ―If a
person entitled to institute a suit… be, at the time from which
the period of limitation is to be reckoned, a minor,‖ he may
institute the suit after coming of age within a time which in the
present case would be three years.‖
(Emphasis supplied)
The basis for holding that suit to be within limitation was not that the idol was not
subject to the law of limitation but that the shebait was a minor on the date of the
accrual of the course of action. The suit could be instituted within three years of
the shebait attaining majority.

  1. In 1909-10 a judgment was rendered by the Privy Council in Mahant
    Damodar Das v Adhikari Lakhan Das247 where there was a dispute between
    the senior chela and junior chela of a Mutt with regard to succession after the
    Mahant passed away. This was settled by an ikrarnama dated 3 November 1874.
    Under the ikrarnama, a math at Bhadrak was allotted in perpetuity to the
    senior chela and his successors, while a math at Bibisarai and the properties
    annexed to it were allotted to the junior chela in the capacity of an
    ‗adhikari‘, subject to an annual payment of Rs. 15 towards the expenses of the
    Bhadrak math. After the death of the senior chela, a suit was instituted by his

247 (1909-10) 37 IA 147
PART N
461
successor for possession of the math at Bibisarai. It was contended that the
property was dedicated to the worship and service of the plaintiff’s idol and was
held by the junior chela in the capacity of an adhikari. The respondent set up
limitation as a defence claiming that neither the plaintiff nor his predecessors had
been in possession of the disputed property within twelve years prior to the
institution of the suit. The trial court held that the suit was not barred by limitation,
but the High Court reversed the decree on the ground that the respondent had
held the disputed mutt adversely for more than twelve years. The Privy Council
rejected the plea of the senior chela that the cause of action arose on the death
of the senior chela and affirmed the ruling of the High Court that the suit was
barred by limitation, having been instituted within twelve years of the death of the
senior chela, but twenty seven years after the ikrarnama. Sir Arthur Wilson held
thus:
―The learned Judges of the High Court have rightly held that
in point of law the property dealt with by the ekrarnama was
prior to its date to be regarded as vested not in the Mohant,
but in the legal entity, the idol, the Mohant being only his
representative and manager. And it follows from this that
the learned Judges were further right in holding that from
the date of the ekrarnama the possession of the junior
chela, by virtue of the terms of that ekrarnama, was
adverse to the right of the idol and of the senior chela, as
representing that idol, and that, therefore, the present
suit was barred by limitation.‖
(Emphasis supplied)
Though the above observations did not specifically deal with whether an idol
could be regarded as a perpetual minor, the Privy Council held in clear terms that
the plea of adverse possession as against the right of the idol was available and
that therefore the suit was barred by limitation.
PART N
462

  1. In Chttar Mal v Panchu Lal248, a Division Bench of the Allahabad High
    Court considered whether an idol suffers a disability of being a perpetual minor
    and hence a suit by an idol at any period of time after the date of the transfer
    would be saved from the bar of limitation under Section 7 of the Limitation Act.
    The argument was premised on the following opinion put forth in the fifth edition
    of Sastri’s ―Hindu Law‖
    249:
    ―As regards limitation it should be considered whether section 7
    of the Limitation Act is not applicable to a suit to set aside an
    improper alienation by a sebait of the property belonging to a
    Hindu god. As the god is incapable of managing his property he
    should be deemed a perpetual minor for the purpose of
    limitation.‖
    The Division Bench, however, held:
    ―…With respect, it may be pointed out that in a transfer by a
    minor the question of a proper or improper alienation would not
    arise. Under the Contract Act a transfer by a minor would be void
    and not only voidable: Mohori Bibee v. Dharmodas
    Ghose [(1902) I.L.R., 30 Calc., 539.]. If the rule were enforced
    the property of a god would not fetch any money in the market
    when need arose to transfer it for the benefit of the temple where
    the idol may be installed…We have clear authority, therefore, in
    refusing to accept the plaintiff’s argument.‖
    In adopting this view, the Division Bench of the High Court relied on the decisions
    of the Privy Council in Maharaja Jagadindra Nath and in Damodar Das.
  2. The fiction of perpetual minority was adopted by a Division Bench of the
    Madras High Court in Rama Reddy v Rangadasan250
    . In that case, the plaintiff
    had instituted a suit in 1918 as the pujari and trustee of the suit temple to recover
    possession of property granted to an ancestor of the plaintiff as manager of the

248 AIR 1926 All 392
249 Chapter XIV, 5th edition at page 726.
250 AIR 1926 Mad 769
PART N
463
temple. The disputed property had been sold by defendant nos 1 and 2 (the
father and uncle of the plaintiff) to defendant no 3 in 1893. It was the contention
of the plaintiff that the property had been granted as service inam to their family
for rendering service as a pujari and the alienation was not valid. The District
Munsif dismissed the suit as barred by limitation and on appeal, the Subordinate
Judge reversed and remanded the suit. The District Munsif again dismissed the
suit and on appeal, the District Judge confirmed the decree. The lower appellate
court found that the plaintiff was the pujari or trustee of the suit property and held
that the suit property was attached to the temple. The plaintiff preferred a second
appeal, which was heard by a Single Judge, who held that the suit was not
barred by limitation. In a Letters Patent Appeal preferred against the decree of
the Single Judge, the Division Bench was to determine whether the suit was
barred by Article 134 or 144 of the Limitation Act.

  1. The High Court noted the decision in Vidya Varuthi Thirtha v Balusami
    Ayyar251 where the Privy Council held that a permanent lease of mutt property
    could not create any interest in the property to subsist beyond the life of the
    grantor and consequently, Article 134 would not apply to a suit brought by the
    successor of the grantor for the recovery of the property. The High Court held
    that a trustee cannot convey a valid title to the transferee, hence Article 134
    would not apply. The High Court noted that the principle of adverse possession
    would apply to cases where a person who could assert his title does not do so
    within the period stipulated under Article 144 of the Limitation Act. With respect
    to the property of an idol, Justice Devadoss held thus:

251 AIR 1922 PC 123
PART N
464
―The legal fiction is that an idol is a minor for all time and it
has to be under perpetual tutelage and that being so, it
cannot be said that the idol can ever acquire majority, and
a person who acquires title from a trustee of a temple
cannot acquire any title adverse to the idol, for the idol is
an infant for all time and the succeeding trustee could
recover the property for the idol for any time.‖
The High Court held that the manager cannot set up an adverse title to the
property of the idol. It was concluded that in consequence, the manager by his
act cannot allow a person who derives title from him to assert an adverse title.
In Surendrakrishna Roy v Shree Shree Ishwar Bhubaneshwari Thakurani252
,
a Division Bench of the Calcutta High Court held that when the property
dedicated to an idol has been held adversely to another and there is no fiduciary
relationship with the idol, limitation would run and be governed by Article 144 of
the Act. Chief Justice Rankin, on the issue of perpetual minority, held thus:
―21. The doctrine that an idol is a perpetual minor is, in
my judgment an extravagant doctrine contrary to the
decision of the Judicial Committee in such cases
as Damodar Das v. Lakhan Das[ (1910) 37 Cal 885 : 37 IA
5147 : 7 IC 240 (PC).] . It is open to shebaits or any person
interested in an endowment to bring a suit to recover the
idol’s property for debuttar purposes…‖
(Emphasis supplied)
The decision of the High Court was affirmed by the Privy Council in Sri Sri Iswari
Bhubaneshwari Thakurani v Brojonath Dey.
253

252 AIR 1933 Cal 295
253 (1936-37) 64 IA 203
PART N
465

  1. In The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara
    Parbandhak Committee, Amritsar254
    , the Privy Council considered whether a
    mosque can be considered a juristic person and can be subject to adverse
    possession. Sir George Rankin observed:
    ―That there should be any supposed analogy between the
    position in law of a building dedicated as a place of prayer for
    Muslims and the individual deities of the Hindu religion is a
    matter of some surprise to their Lordships. The question
    whether a British Indian Court will recognise a mosque as
    having a locus standi in judicio is a question of procedure. In
    British India the Courts do not follow the Mahomedan law in
    matters of procedure [cf. Jafri Begum v. Amir Muhammad
    Khan [I.L.R. 7 All. 822 at pp. 841, 842 (1885).] , per
    Mahmood, J.] any more than they apply the Mahomedan
    criminal law of the ancient Mahomedan rules of evidence. At
    the same time the procedure of the Courts in applying Hindu
    or Mahomedan law has to be appropriate to the laws which
    they apply. Thus the procedure in India takes account,
    necessarily, of the polytheistic and other features of the Hindu
    religion and recognises certain doctrines of Hindu law as
    essential thereto, e.g., that an idol may be the owner of
    property. The procedure of our Courts allows for a suit in
    the name of an idol or deity though the right of suit is
    really in the sebait [Jagadindranath v. Hemmta
    Kumari [L.R. 31 I.A. 203 : s.c. 8 C.W.N. 609 (1605).] ]. Very
    considerable difficulties attend these doctrines—in
    particular as regards the distinction, if any, proper to be
    made between the deity and the image [cf. Bhupati
    Nath v. Ram Lal [I.L.R. 37 Cal. 128, 153: s.c. 14 C.W.N. 18
    (1910).] , Golapchandra Sarkar, Sastri’s ―Hindu Law,‖ 7th
    Ed., pp. 865 et seq.]. But there has never been any doubt
    that the property of a Hindu religious endowment—
    including a thakurbari—is subject to the law of limitation
    [Damodar Das v. Lakhan Das [L.R. 37 I.A. 147 : s.c. 14
    C.W.N. 889 (1810).] and Sri Sri Iswari Bhubaneshwari
    Thakurani v. Brojo Nath Dey [L.R. 64 I.A. 203 : s.c. 41
    C.W.N. 968 (1937).] ]. From these considerations special
    to Hindu law no general licence can be derived for the
    invention of fictitious persons…‖
    (Emphasis supplied)

254 AIR 1940 PC 116
PART N
466
It was concluded thus:
―The property now in question having been possessed by
Sikhs adversely to the waqf and to all interests thereunder for
more than 12 years, the right of the mutawali to possession
for the purposes of the waqf came to an end under Art. 144 of
the Limitation Act and the title derived under the dedication
from the settlor or wakif became extinct under sec. 28. The
property was no longer, for any of the purposes of British
Indian Courts, ―a property of God by the advantage of it
resulting to his creatures…‖
In a decision of a Division Bench of the Calcutta High Court in Tarit Bhushan
Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur255, Nasim Ali J noted the
similarities and points of distinction between the position of a minor and an idol in
Hindu Law:
―The points of similarity between a minor and a Hindu idol
are: (1) Both have the capacity of owning property. (2) Both
are incapable of managing their properties and protecting
their own interests. (3) The properties of both are managed
and protected by another human being. The manager of a
minor is his legal guardian and the manager of an idol is its
shebait. (4) The powers of their managers are similar. (5)
Both have got the right to sue. (6) The bar of S. 11 and Order
9, R. 9, Civil P.C., applies to both of them.
The points of difference between the two are: (1) A Hindu
idol is a juristic or artificial person but a minor is a
natural person. (2) A Hindu idol exists for its own interest as
well as for the interests of its worshippers but a minor does
not exist for the interests of anybody else. (3) The Contract
Act (Substantive law) has taken away the legal capacity of a
minor to contract but the legal capacity of a Hindu idol to
contract has not been affected by this Act or by any other
statute. (4) The Limitation Act (an adjective law) has
exempted a minor from the operation of the bar of
limitation but this protection has not been extended to a
Hindu idol.

255 AIR 1942 Cal 99
PART N
467
From the above it is clear that there is some analogy
between a minor and a Hindu idol but the latter is neither
a minor nor a perpetual minor.‖
(Emphasis supplied)
Before the Orissa High Court in Radhakrishna Das v Radharamana Swami256
,
a suit had been instituted by the next friend of the deity for a decree directing the
restoration of the plaintiff deity to its original place of consecration. The Division
Bench of the High Court held that an idol cannot be regarded a perpetual minor
for the purposes of limitation and rejected the contention of the plaintiff that the
deity‘s right to be located at its temple is a continuing right on account of the
incapacity of the deity to act on its behalf. The Division Bench held:
―…An idol is no doubt in the position of an infant as it can act
only through a sebayat or a manager. But no authority has
been cited to us for the proposition that he is to be regarded as
a perpetual infant, so that transactions by or against him will
not by governed by the Limitation Act.
The doctrine that an idol is a perpetual minor is an extravagant
doctrine as it is open to the sebayat, or any person in an
endowment, to bring a suit to recover the idol‘s property for
devottar purposes. An idol, therefore, is as much subject to the
law of limitation as a natural person and cannot claim
exemption on the ground that he is a perpetual infant. Nor is a
Hindu deity to be regarded as a minor for all purposes. An idol
cannot, therefore, claim exemption from the law of limitation.‖
The legal fiction of a deity as a minor has been evolved to obviate the inability of
the deity to institute legal proceedings on its own. A human agent must institute
legal proceedings on behalf of the deity to overcome the disability. However, the
fiction has not been extended to exempt the deity from the applicability of the law
of limitation.

256 AIR 1949 Orissa 1
PART N
468

  1. In the present case, it has been established that there was no de-facto or
    de-jure shebait acting on behalf of the deity. Therefore, it is appropriate to refer to
    judgements of this Court regarding the ―right of suit‖ as vested in the shebait and
    the consequence of the absence of a shebait on the application of the Limitation
    Act to the adverse possession of debutter property. ―In Rai Sahib Dr
    Gurdittamal Kapur v Mahant Amar Das Chela Mahant Ram Saran257
    , this
    Court dealt with a case where a suit was filed in 1957 by the first respondent,
    who was a newly appointed Mahant of Akhara Nirbansar of Sultanwind Gate,
    Amritsar. The second respondent was removed as a Mahant in proceedings
    under Section 92 of the Civil Procedure Code and the first respondent was
    subsequently appointed in his place. It was alleged that the alienation of property
    by the second respondent was unauthorised as the transfer was not for legal
    necessity or for the benefit of the estate. Moreover, it was contended that the fact
    that the appellant was in possession of the land for more than twelve years made
    no difference and since the land was trust property, a suit for its recovery could
    be brought within twelve years from the date of death, resignation or removal of
    the manager of such a property. A three judge Bench of this Court held that the
    suit filed by the first respondent was liable to be dismissed since the appellant
    had been in adverse possession for more than twelve years. Speaking for this
    Court, Justice J R Mudholkar held that for the purposes of Section 144 of the Act,
    adverse possession is to be computed from the ―effective possession‖ of the
    appellant as a result of the sale:
    ―12…The law on the subject has been stated very clearly at
    pp. 274 and 275 in Mukherjea’s Hindu Law of Religious and

257 AIR 1965 SC 1966
PART N
469
Charitable Trust, 2nd Edn. It is pointed out that in the case
of an execution sale of debutter property it is not the date
of death of the incumbent of the Mutt but the date of
effective possession as a result of the sale from which
the commencement of the adverse possession of the
purchaser is to be computed for the purposes of Article
144 of the Limitation Act… Thus if Respondent 2 could be
said to have represented the Akhara in the two earlier suits,
decrees made in them would bind Respondent 1 as he is
successor in office of Respondent 2. On the other hand if
Respondent 2 did not represent the Akhara, the possession
of the appellant under the decree passed in these suits would
clearly be adverse to the Akhara upon the view taken in the
two decisions of the Privy Council just referred to. The first
respondent’s suit having been instituted after the appellant
has completed more than 12 years of adverse possession
must, therefore be held to be barred by time. For these
reasons disagreeing with the courts below we set aside the
decrees of the courts below and instead dismiss the suit of
Respondent 1 with costs in all the courts.‖
(Emphasis supplied)

  1. In a subsequent decision of this Court in Sarangadeva Periya Matam v
    Ramaswami Goundar(Dead) by Legal Representatives
    258, the Mathadhipathi
    had granted a perpetual lease of a portion of the disputed property to the
    grandfather of the plaintiffs on annual rent. Since 1883 when the lease was
    granted and until January 1950, the respondents were in uninterrupted
    possession of the property. In 1915, the Mathadhipathi died without a successor
    and the plaintiffs did not pay any rent. Between 1915 and 1939, there was no
    Mathadhipathi and some person was in management of the Math for twenty
    years. A Mathadhipathi was elected in 1939. In 1928, the Collector of Madurai
    passed an order to resume the Inam lands, and directed full assessment of the
    lands and payment of the assessment to the Math for its upkeep. After
    resumption, a joint patta was issued in the name of the plaintiff and other persons

258 AIR 1966 SC 1603
PART N
470
in possession of the lands. The respondents continued to possess the suit lands
until January 1950 when the Math obtained possession. On 18 February 1954,
the respondents instituted the suit against the Math represented by its then
Mathadhipathi and an agent of the math claiming recovery of possession of the
suit lands. The Trial Court decreed the suit. In appeal, the District Judge set aside
the decree and dismissed the suit. In second appeal, the High Court of Madras
restored the decree of the Trial Court. The respondent contended that he had
acquired title to the lands by adverse possession and by the issue of a ryotwari
patta in his favour on the resumption of the Inam. The appellant contended that
the right to sue for the recovery of the Math properties vests in the legally
appointed Mathadhipathi and adverse possession against him would not run until
his appointment. A three judge Bench of this Court noted that like an idol, a Math
is a juristic person which must act through a human agency and a claim of
adverse possession was maintainable against it:
―6. We are inclined to accept the respondents’ contention.
Under Article 144 Indian Limitation Act, 1908, limitation for a
suit by a math or by any person representing it for possession
of immovable properties belonging to it runs from the time
when the possession of the defendant becomes adverse to
the plaintiff. The math is the owner of the endowed property.
Like an idol, the math is a juristic person having the
power of acquiring, owning and possessing properties
and having the capacity of suing and being sued. Being
an ideal person, it must of necessity act in relation to its
temporal affairs through human agency… It may acquire
property by prescription and may likewise lose property
by adverse possession. If the math while in possession of
its property is dispossessed or if the possession of a stranger
becomes adverse, it suffers an injury and has the right to sue
for the recovery of the property. If there is a legally appointed
mathadhipathi, he may institute the suit on its behalf; if not,
the de facto mathadhipathi may do so, see Mahaleo Prasad
Singh v. Koria Bharti [(1934) LR 62 IA 47, 50] ; and where,
necessary, a disciple or other beneficiary of the math may
PART N
471
take steps for vindicating its legal rights by the appointment of
a receiver having authority to sue on its behalf, or by the
institution of a suit in its name by a next friend appointed by
the Court. With due diligence, the math or those interested in
it may avoid the running of time. The running of limitation
against the math under Article 144 is not suspended by
the absence of a legally appointed mathadhipathi; clearly,
limitation would run against it where it is managed by a
de facto mathadhipathi. See Vithalbowa v. Narayan Daji
Thite [(1893) ILR 18 Bom 507, 511] , and we think it would
run equally if there is neither a de jure nor a de facto
mathadhipathi.‖ (Emphasis supplied)
Justice R S Bachawat held that when possession of the property became
adverse, limitation against the Math would run even in the absence of a de jure or
de facto Mathadhipathi. While noting the decision of the Privy Council in
Maharaja Jagadindra Nath, this Court declined to extend the principle that the
―right to sue for possession‖ is to be divorced from the ―proprietary right‖ to the
property which is vested in the idol:
―8… in giving the benefit of Section 7 of the Indian Limitation
Act, 1877 to the shebait, the Privy Council proceeded on the
footing that the right to sue for possession is to be divorced
from the proprietary right to the property which is vested in the
idol. We do not express any opinion one way or the other on
the correctness of Jagadindra Nath Roy case [ILR 32 cal 129,
141] . For the purposes of this case, it is sufficient to say that
we are not inclined to extend the principle of that case. In that
case, at the commencement of the period of limitation there
was a shebait in existence entitled to sue on behalf of the idol,
and on the institution of the suit he successfully claimed that
as the person entitled to institute the suit at the time from
which the period is to be reckoned, he should get the benefit
of Section 7 of the Indian Limitation Act, 1877. In the present
case, there was no mathadhipathi in existence in 1915 when
limitation commenced to run. Nor is there any question of the
minority of a mathadhipathi entitled to sue in 1915 or of
applying Section 6 of the Indian Limitation Act, 1908.‖
PART N
472
Decision of the High Court

  1. On the aspect of whether a deity can be regarded as a perpetual minor,
    Justice S U Khan held that an idol of a deity is not a perpetual minor for the
    purpose of limitation and debutter property can be lost through adverse
    possession. The view of the learned Judge was that the observation in
    Bishwanath v Sri Thakur Radha Ballabhji259 that an idol is in the position of a
    minor was not in the context of the law of limitation. On the contrary, in the view
    of the learned Judge, the decisions in Dr Gurdittamal Kapur and Sarangadevi
    Periya Matam were of three judge Benches (Bishwanath, being decided by a
    Bench of two judges). Both the three judge Bench decisions supported the view
    that the law of limitation would be applicable. Moreover, the Privy Council in
    Masjid Shahidganj v Shiromani Gurdwara Prabandhak Committee,
    Amritsar260 had noted that there had never been any doubt that the property of a
    Hindu religious endowment is subject to the law of limitation.
    Justice Sudhir Agarwal, on the other hand was of the view that though the suit as
    it was earlier filed, pertained to a wider area, the extent of the dispute (following
    the judgment of this Court in Ismail Faruqui) was confined to the inner and outer
    courtyards. In the view of Justice Agarwal, this being the birth-place of Lord Ram
    which Hindus had been visiting since time immemorial and the deity being ―in the
    form of a place‖ it ―can never be destroyed nor could be destructed‖. Hence, if the
    deity claims a declaration from the court, the plea of limitation would not be

259 (1967) 2 SCR 618
260 AIR 1940 PC 116
PART N
473
applicable and there was no reason to take recourse to Section 6 or Section 7 of
the Limitation Act.
Justice D V Sharma relied upon the decision in Bishwanath and came to the
conclusion that a deity is a minor for the purposes of Section 6 of the Limitation
Act and extending the benefit available to a minor to a deity would do no injustice
to the world at large.

  1. The analysis of the legal position on the applicability of the law on
    perpetual minority by Justice S U Khan commends itself. Based on the judicial
    precedents analysed above, it is an established position that a deity cannot on
    the ground of being a perpetual minor stand exempted from the application of the
    Limitation Act. The submission which was urged by Mr C S Vaidyanathan is
    contrary to the jurisprudence of close to a century on the issue. We follow the line
    of precedents emanating from the Privy Council, this Court and several High
    Courts noted earlier. The applicability of the law of limitation cannot be ruled out
    on the basis of the theory of perpetual minority.
    For the reasons which we have been already been adduced above, the reasons
    which weighed with Justice Sudhir Agarwal and Justice DV Sharma while
    construing the applicability of the Limitation Act are incorrect. The decision of the
    two judge Bench in Bishwanath did not deal with the issue of the applicability of
    the Limitation Act and the observations that a deity is a minor cannot be extended
    by implication to create an exemption to the applicability of the law of limitation.
    Such an extension would be contrary to the consistent precedents emanating
    PART N
    474
    from the Privy Council as well as in the decisions of this Court and the High
    Courts. Justice D V Sharma has read into the provisions of Section 6 of the
    Limitation Act that the same principle which applies to a minor also applies to a
    deity. Such an extension cannot be arrived at by implication or by interpretation.
    Limitation in Suit 5
  2. Each of the three judges of the Allahabad High Court furnished reasons of
    their own in holding that Suit 5 was within limitation. Justice S U Khan dealt with
    limitation in one consolidated analysis and furnished five reasons of which the
    first and the fifth were held to be applicable to Suit 5. According to the learned
    Judge:
    (i) The Magistrate by keeping the proceedings under Section 145 pending
    indefinitely, acted in excess of jurisdiction. Consequently, no final order
    was passed in the Section 145 proceedings. By not doing so, it was held
    that the bar of limitation would not arise; and
    (ii) The court in any event was required to return a finding under Order XIV on
    all issues.
    Justice Sudhir Agarwal held that the plea of limitation in Suit 5 must be
    understood in the context of the following facts:
    (i) The place in dispute is believed by Hindus to be the birth-place of Lord
    Ram and has been worshipped as such since time immemorial;
    PART N
    475
    (ii) A non-Hindu structure in the nature of a mosque was raised at the
    command of the Muslim ruler before the visit of Tieffenthaler (1766-71);
    (iii) Despite the above construction, Hindus continued to visit it and offer
    worship according to their belief that it was the birth-place of Lord Ram;
    (iv) Though the structure of the building was treated as a mosque it did not
    impact the beliefs of the Hindus;
    (v) Within the premises of the undivided mosque, there was a non-Islamic
    structure of a Bedi which was noticed by Tieffenthaler in his account;
    (vi) Other Hindu structures were added with the passage of time including Sita
    Rasoi, Ramchabutra and Bhandar;
    (vii) These structures were noticed in 1858, 1873, 1885, 1949 and 1950 and
    continued until the demolition of the entire structure on 6 December 1992;
    (viii) Though the entire disputed structure was called a mosque, the British
    Government recognised the rival claims of both the communities by
    dividing the disputed area in two parts within which each community could
    separately offer prayer and worship;
    (ix) Despite this division, Hindus not only kept possession of the outer
    courtyard but continued to enter the inner courtyard in spite of repeated
    complaints and removal orders fortified by the record between 1858 to
    1885;
    (x) Treating the disputed structure as a mosque, the British Government
    allowed a Nankar grant to two Muslims in pursuance of which they claimed
    to have incurred expenses on the maintenance of the building;
    PART N
    476
    (xi) On 22/23 December 1949, idols of Lord Ram were placed by Hindus in the
    inner courtyard;
    (xii) On 29 December 1949, the inner courtyard was attached under Section
    145 in spite of which the Magistrate ensured that worship of the idols
    placed under the central dome continued after which the civil court passed
    an order of injunction on 16 January 1950, which was clarified on 19
    January 1950, confirmed on 3 March 1951 and which attained finality on
    26 April 1955;
    (xiii) Since 23 December 1949, worship had continued by the Hindus while on
    the other hand, no Muslim had entered the premises or offered namaz;
    (xiv) Since 29 December 1949, worship by Hindus continued from the iron grill
    door of the dividing wall and only priests were allowed to enter the
    premises for worship; and
    (xv) The District Judge, by an order dated 1 February 1986, directed the
    removal of locks and the opening of doors to permit the Hindus to pray to
    the idols in the inner courtyard.
    On the basis of the above facts, Justice Sudhir Agarwal held that worship of the
    deities had continued and there was no action or inaction in respect of which the
    plaintiffs could claim a right to sue governed by a particular period of limitation.
    The learned judge held that in the preceding few hundred years, the only action
    which may have arisen to adversely affect the interest of the plaintiffs was the
    raising of the disputed structure. In spite of this, the place in dispute continued to
    be used by the Hindus for the purposes of worship. On the other hand, there is
    no mention of any Muslim having offered namaz from the date of the construction
    PART N
    477
    until 1856-57. In view of the above facts, there was no action for the Hindus to be
    aggrieved on a particular date, giving rise to a right to sue for the purposes of
    limitation. Consequently, the judge held that Suit 5 could not be held to be barred
    by limitation.
    Justice DV Sharma held that the deity is a minor for the purpose of Section 6 of
    the Limitation Act and came to the conclusion that Suit 5 was within limitation.
  3. It now becomes necessary to address the fundamental issue as to whether
    Suit 5 is barred by limitation. In assessing whether Suit 5 is within or beyond
    limitation regard must be had to the position that in the remaining suits which
    were initiated before the Allahabad High Court (Suits 1, 3 and 4), neither of the
    plaintiffs in Suit 5 were impleaded. The averment in Suit 5 is that both the first
    and second plaintiffs have a distinct juridical personality of their own. The first
    plaintiff has a distinct juridical personality independent of the worshippers. In
    paragraph 18 of the plaint, the plaintiffs aver that some of the parties to the earlier
    suits who are worshippers are to some extent ―involved‖ in seeking to gratify their
    personal interests to be served by obtaining control over the worship of the
    plaintiff deities.
  4. Significantly, even after the attachment of the disputed property on 29
    December 1949 the sewa-puja of the plaintiff deities continued. Therefore, it
    cannot be contended that the cause of action in Suit 5 arose on 29 December
    1949 and pertains to the obstruction of worship and prayer or the attachment of
    the disputed property. The pleadings in Suit 5 refers to all the previous suits filed
    PART N
    478
    with respect to the disputed property. The defendants in Suit 5 include the plaintiff
    in Suits 1, 3 and 4, besides Muslim and Hindu parties and the State and its
    officials. Suit 5 is founded on the plea that as a matter of fact, the interest of the
    deities was not being safeguarded by the persons or entities who were pursuing
    the earlier proceedings. When Suit 5 was instituted, the legal personality of the
    first and second plaintiff had not been adjudicated upon. Upon the institution of
    Suit 5, the plaintiffs in Suit 3 and Suit 4 expressly denied that the second plaintiff
    was an independent object of worship and a legal person. Further, the
    apprehension of the plaintiffs in regard to the interest of the deity of Lord Ram not
    being protected was abundantly established in the stance which was taken by
    Nirmohi Akhara in its written statement filed on 14 August 1989. Nirmohi Akhara
    denied that the plaintiffs were entitled to any relief and set up the plea that the
    premises mentioned by the plaintiffs belong to Nirmohi Akhara and that the
    plaintiffs have no right to seek a declaration ―against the right and titles of the
    Nirmohi Akhara‖. Indeed, the Nirmohi Akhara construed the suit as ―the threat to
    demolish the temple of the Nirmohi Akhara for which the suit of the Akhara is
    pending‖. Nirmohi Akhara set up the plea that the idol of Lord Ram is installed not
    at Ram Janmabhumi at Ayodhya but in the temple known as Ram Janmabhumi
    temple, for whose delivery of charge and management Nirmohi Akhara had filed
    its suit. In response to the injunctive relief sought by the plaintiffs, Nirmohi Akhara
    set up the plea that it alone has a right to control, supervise and repair or even to
    reconstruct the temple if necessary. Nirmohi Akhara set up the plea that the trust
    which has been set up in 1985 was with an ―obvious design‖ to damage the title
    and interest of the Nirmohi Akhara. On the maintainability of Suit 5, both the
    PART N
    479
    Sunni Central Waqf Board and the Nirmohi Akhara raised similar objections,
    which have been re-affirmed by their stand taken in the course of the present
    proceedings. Dr Rajeev Dhavan, leading the arguments for the Sunni Central
    Waqf Board submitted that though Suit 3 is barred by limitation, that does not
    extinguish the right of Nirmohi Akhara to pursue its claim as a shebait. It was
    urged that Nirmohi Akhara being the shebait, Suit 5 is not maintainable. The case
    of the plaintiffs that the institution of the Suit 5 was necessitated as a result of the
    deity not being a party to the earlier suits and based on the apprehension that in
    the existing suits, the personal interests of the leading parties were being
    pursued without protecting the independent needs and concerns of the deity of
    Lord Ram, is well and truly borne out by the proceedings as they unfolded in the
    proceedings before this Court. The cause of action in Suit 5 cannot be
    considered to be barred by limitation on a proper construction of the basis of the
    cause of action for the institution of the suit.
    The Suit by Nirmohi Akhara (Suit 3) was for management and charge of what it
    described as the Ram Janmabhumi temple. Its claim of being a shebait had not,
    as of the date of the institution of Suit 3, been adjudicated. It was not a de-jure
    shebait (there being no deed of dedication) and its claim of being a de facto
    shebait had to be established on evidence. Suit 5 is founded on the plea that the
    needs and concerns of the deity of Lord Ram were not being protected and that
    the parties to the earlier suits were pursuing their own interests. This
    apprehension as the basis of Suit 5 is not without substance. For, Nirmohi Akhara
    in its defence travelled beyond the claim of management and charge, seeking to
    PART N
    480
    place reliance on its alleged ―right and titles‖ and its ―title and interest‖ as noted
    above. The Sunni Central Waqf Board made joint cause with Nirmohi Akhara by
    supporting the cause of Nirmohi Akhara as a shebait, to buttress its challenge to
    the entitlement of the deity to protect its interests through a next friend. Nirmohi
    Akhara has an interest hostile to the deity when it speaks of its own ‗title and
    interest‘. In this backdrop, the cause pleaded in Suit 5 at the behest of the deity of
    Lord Ram cannot be held to be beyond limitation.
  5. Mr Parasaran submitted that Suit 5 essentially looks to the future and for
    the need to construct a temple dedicated to Lord Ram on the site of Ram
    Janmabhumi. Dr Dhavan criticised this as well as the constitution of the trust of
    1985 and the Nyas as part of a wider agenda which led to the event of 1992. This
    criticism in our view cannot be factored in while determining whether as a matter
    of law, Suit 5 is barred by limitation. Simply put, Suit 5 contains a plea that by
    virtue of the deity not being a party to the earlier suits, its interests and concerns
    were not being adequately protected in the earlier suits including those instituted
    by the Hindu parties. The reasons which weighed with Justice Agarwal in holding
    Suit 5 to be within limitation, to the extent summarised above, commend
    themselves for acceptance. On the basis of the above discussion, it must be held
    that Suit 5 is instituted within the period of limitation.
    PART N
    481
    N.8 The Suit of 1885 and Res Judicata
    Issues
  6. The plea of res judicata hinges on the content and outcome of a suit which
    was instituted in 1885 by Mahant Raghubar Das seeking a decree for the
    construction of a temple at Ramchabutra. Specific issues on whether the doctrine
    of res judicata is attracted were drawn up in Suits 1, 4 and 5, thus:
    Suit 1
    Issue 5(a):- Was the property in suit involved in Original Suit No. 61/280 of 1885
    in the Court of Sub-Judge, Faizabad, Raghubar Das Mahant v Secretary of State
    for India and others.
    Issue 5(b):- Was it decided against the plaintiff.
    Issue 5(c):- Was the suit within the knowledge of Hindus in general and were all
    Hindus interested in the same.
    Issue 5(d):- Does the decision bar the present suit by principles of res judicata
    and in any other way.
    Suit 4
    Issue 7(a):- Whether Mahant Raghubar Dass, plaintiff of Suit No. 61/280 of 1885
    had sued on behalf of Janmasthan and whole body of persons interested in
    Janmasthan.
    Issue 7(b):- Whether Mohammad Asghar was the Mutawalli of alleged Babri
    Masjid and did he contest the suit for and on behalf of any such mosque.
    Issue 7(c):- Whether in view of the judgment in the said suit, the members of the
    Hindu community, including the contesting defendants, are estopped from
    PART N
    482
    denying the title of the Muslim community, including the plaintiffs of the present
    suit, to the property in dispute; if so, its effect.
    Issue 7(d):- Whether in the aforesaid suit, title of the Muslims to the property in
    dispute or any portion thereof was admitted by plaintiff of the that suit; if so, its
    effect.
    Issue 8 – Does the judgment of case No. 6/280 of 1885, Mahant Raghubar Dass
    v Secretary of State and others, operate as res judicata against the defendants in
    suit.
    Suit 5
    Issue 23:- Whether the judgment in Suit No. 61/280 of 1885 filed by Mahant
    Raghubar Das in the Court of Special Judge, Faizabad is binding upon the
    plaintiffs by application of the principles of estoppel and res judicata as alleged by
    the defendants 4 and 5.
    The plaint of 1885
  7. The Suit of 1885 was instituted by Mahant Raghubar Das, describing
    himself as ―Mahant Janamsthan situated at Ayodhya‖. The suit was initially
    instituted only against the Secretary of State for India. The plaint in the suit of
    1885 is as under:
    ―IN THE COURT OF MUNSIF SAHIB BAHADUR
    Mahant Raghubar Das
    Mahant Janmsthan
    Situated at Ayodhya Plaintiff
    versus
    Secretary of State for India
    PART N
    483
    in the Session of Council Defendant
    The plaintiff abovenamed Submit as under:
    Suit for grant of permission for construction of Mandir, i.e.,
    prohibition to the defendant that plaintiff should not be
    restrained from construction of Mandir on chabootraJanmashtan situated at Ayodhya, North 17 feet, East 21 feet,
    South 17 feet, West 21 feet and the value of the suit cannot
    be fixed as per market rate therefore as per Item No. 17,
    paragraph 6, Appendix-II, Act, 1870, court fee was affixed
    and the position of the site can be known very well from the
    attached map/sketch.
    Section 1: That the place of janmsthan situated at Ayodhya
    City, Faizabad is a very old and sacred place of worship of
    Hindus and plaintiff is the Mahant of this place of worship.
    Section 2: That the chabootra janmasthan is East-West 41
    feet and North-South 17 feet. Charan Paaduka is fixed on it
    and small temple is also placed which is worshipped.
    Section 3: That the said chabootra is in the possession of the
    plaintiff. There being no building on it, the plaintiff and other
    faqirs are put to great hard ship in summer from heat, in the
    monsoon from rain and in the winter from extreme cold.
    Construction of temple on the chabootra will cause no harm
    to anyone. But the construction of temple will give relief to the
    plaintiff and other faqirs and pilgrims.
    Section 4: That the Deputy Commissioner Bahadur of
    Faizabad from March or April 83, because of the objection of
    a few Muslims opposed the construction of the mandir, this
    petitioner sent a petition to the local government regarding
    this matter where no reply received about this petition. Then
    the plaintiff sent a notice as required under Section-444 of the
    Code (of Civil Procedure) on 18th August, 1883 to the office
    of Secretary, Local Government but this too remained unreplied. Hence the cause for the suit arise from the date of
    prohibition at Ayodhya under the jurisdiction of the Court.
    Section 5: That a well-wishing subject has a right to construct
    any type of building which it wishes as the land possessed
    and owned by it. It is the duty of fair and just government to
    protect its subjects and provide assistance to them in availing
    their rights and making suitable bandobast for maintenance of
    law and order. Therefore the plaintiff prays for issue of the
    decree for construction of temple on chabootra –
    Janmasthan situated at Ayodhya North 17 feet, East 41
    feet, South 17 feet and West 41 feet and also to see that
    PART N
    484
    the defendant does not prohibit and obstruct the
    construction of mandir and the cost of the suit should be
    ordered to be borne by the defendant.
    I Raghubar Das Mahant Janmasthan, Ayodhya Certify that
    the contents of the plaint and all five points are true and
    correct to the best of my knowledge and belief.
    Signature of Mahant Raghubardas
    in Hindi script.‖
    (Emphasis supplied)
    The plaintiff averred that the place of the Janmabhumi is ancient and sacred and
    is a place of worship for the Hindus. The plaintiff claimed to be the Mahant of this
    place of worship. The ―chabootra janamsthan‖ was described as admeasuring
    ―East-West 41 feet and North-South 17 feet.‖
    It was pleaded that there was a Charan Paduka fixed on it and that there was a
    small temple which was worshipped. The plaintiff claimed to be in possession of
    the Chabutra. The plaintiff averred that he and other faqirs were inconvenienced
    in inclement weather and that the construction of a temple ―on the Chabutra‖
    would not cause harm to anyone else. However, it was stated that the Deputy
    Commissioner of Faizabad had opposed the construction of the temple and
    despite a notice under the Code of Civil Procedure dated 18 August 1883, the
    government had not taken any action. The basis of the claim was that a ―subject‖
    has a right to construct a building on land which is possessed and owned by him.
    PART N
    485
    The defence in 1885
  8. Though the Muslims were originally not impleaded as parties to the suit,
    Mohd Asghar, in his capacity as a Mutawalli applied to be impleaded and was
    made a party to the suit. In his written statement, Mohd Asghar set up a plea that
    the mosque was constructed by Babur. He stated that ownership could not be
    claimed by the plaintiff who had not produced any material originating in the
    emperor or the ruler of the time in support of the plea. Essentially, the defence
    was that:
    (i) The plaintiff had no title to the Chabutra;
    (ii) Ingress and egress for the purposes of worship does not prove ownership;
    (iii) The Chabutra came up in 1857; and
    (iv) The construction of the Chabutra did not confer any right of ownership and
    new construction on it had been restrained by the government as a result
    of which a hut which was set up by a faqir had been demolished.
    It was argued that the spot was disputed between the Hindus and Muslims
    resulting in a communal incident.
    Findings
  9. In his judgment dated 24 December 1885, the Sub-Judge at Faizabad
    accepted the possession and ownership of the Hindus of the area surrounding
    the wall of the Masjid. However, the Sub-Judge held that if permission for the
    PART N
    486
    construction of the temple were granted, a serious situation endangering law and
    order would arise between the two communities. The Sub-Judge held:
    ―Over and above this, on the temple situated on the
    chabootra an idol of Thakurji is kept which is being
    worshipped. The chabootra is in the possession of the plaintiff
    and whatever is offered on it is taken by the plaintiff.
    The possession of plaintiff is proved by the witnesses of the
    plaintiff and railing wall separating the boundary of Hindus
    and Muslims exists from a long period…
    In the year 1855, after the quarrel between Hindus and
    Muslims a wall in the form of the railing was erected to avoid
    controversy. So that Muslims may worship inside it and
    Hindus may worship outside it. So the outside land with
    chabootra which is in the possession of the plaintiff belongs to
    Hindus.
    Though the place where Hindus worship they hold its
    possession since old because of which there cannot be
    objection to their ownership and the area surrounding around
    the wall of the Masjid and on the outer door word Allah is
    engraved.‖
    Despite the above findings on possession by and ownership of the Hindus, the
    suit was dismissed because a serious breach of law and order was apprehended.
    In appeal, the judgment of the trial court dismissing the suit was affirmed by the
    District Judge, Faizabad on 18/26 March 1886. The District Judge held that while
    it was unfortunate that a mosque had been constructed on land held sacred by
    the Hindus, an event which had occurred over three centuries earlier could not be
    remedied:
    ―It is most unfortunate that a Masjid should have been built on
    land specially held sacred by the Hindu, but as that event
    occurred 356 years ago it is too late to remedy the grievance
    all that can be done is to maintain that parties in status quo.‖
    The District Judge noted on a site inspection that the Chabutra had been
    occupied by the Hindus on which there was ―a small superstructure of wood, in
    PART N
    487
    the form of tent‖. The Chabutra was said to indicate the birth-place of Lord Ram.
    While maintaining the dismissal of the Suit, the District Judge came to the
    conclusion that the observations on possession and ownership in the judgment of
    the trial judge were redundant and were hence to be struck off. The judgment of
    the first appellate court was carried before the Judicial Commissioner, Oudh in a
    second appeal, who affirmed the dismissal of the suit on 2 November 1886. The
    Judicial Commissioner observed:
    ―The matter is simply that the Hindus of Ajudhia want to erect
    a new temple of marble … over the supposed holy spot in
    Ajudhia said to be the birthplace of Sri Ram Chandar. Now
    this spot is situate within the precincts of the grounds
    surrounding a mosque constructed some 350 years ago
    owing to the bigotry and tyranny of the Emperor Baber-who
    purposely chose this holy spot according to Hindu legend- as
    the site of his mosque.
    The Hindus seem to have got very limited rights of access to
    certain spots within the precincts adjoining the mosque and
    they have for a series of years been persistently trying to
    increase their rights and to erect building over two spots in
    the enclosure.
    (1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi.
    The executive authorities have persistently repressed these
    encroachments and absolutely forbid any alteration of the
    ‗status quo‘.
    I think this a very wise and proper procedure on their part and
    I am further of opinion that Civil Courts have properly
    dismissed the plaintiff’s claim.
    The pleas on appeal to this … are wholly unsupported by
    facts in the case or by any document that appears to me …
    some of the reasoning of the Lower Appellant Court as to the
    limitations of the Civil Court jurisdiction. However I approve of
    their final conclusion to which it has come – and I see no
    reason to interfere with its order modifying the wording of part
    of the judgment of the Court of First Instance. There is
    nothing whatever on the record to show that plaintiff is in any
    sense the proprietor of the land in question. This appeal is
    dismissed with costs of all Courts.‖
    PART N
    488
    Submissions
  10. Relying on the above observations of the Judicial Commissioner, Mr
    Shekhar Naphade, learned Senior Counsel emphasised five facets from the
    decision:
    (i) The existence of the mosque;
    (ii) The construction of a Chabutra in close-proximity;
    (iii) The availability of a limited right of access to the Hindus;
    (iv) The restraint imposed by the executive on attempted encroachments by
    the Hindus; and
    (v) The rejection of the claim of the Hindus to ownership and possession.
  11. All the three Judges of the Allahabad High Court rejected the plea of res
    judicata. Justice S U Khan held that the only thing which had been decided in the
    Suit of 1885 was that the status quo should be maintained in order to obviate the
    likelihood of riots between the two communities. In his view:
    ―Refusal to decide the controversy is the actual decision in
    the said suit‖.
    Assailing the above finding, Mr Naphade urged that there was an error on the
    part of the learned Judge in coming to the conclusion that nothing substantial had
    been decided in the Suit of 1885. He submitted that the judgment of the Judicial
    Commissioner indicated that Hindus had a limited right of access and that their
    claim of possession and ownership stood rejected.
    PART N
    489
  12. Justice Sudhir Agarwal held that in the Suit of 1885, the only dispute was
    in regard to the construction sought to be made on the Chabutra. Hence, the suit
    did not relate to the entirety of the disputed site or building and the right of
    ownership or possession in respect of any part of the land in dispute was not
    involved. Justice Sudhir Agarwal held that unlike the suits which the High Court
    was adjudicating upon, only a portion of the property was involved in the Suit of
    1885.
  13. Assailing these findings, Mr Naphade urged that:
    (i) Justice Sudhir Agarwal failed to notice the observations of the Judicial
    Commissioner in the earlier suit to the effect that the Hindus had a limited
    right of access and no right of possession or ownership;
    (ii) The finding on the point of res judicata is contrary to the decision of this
    Court in K Ethirajan v Lakshmi261, where it has been held that the
    principle of res judicata would be attracted even in a situation where in the
    previous suit only a portion of the property was in dispute, whereas in a
    latter suit the whole of the property forms the subject matter of the claim;
    and
    (iii) Justice Agarwal also held that there was nothing to show that the Hindus
    at large were aware of the previous suit. There was a serious situation of
    law and order which gave rise to a dispute between the two communities
    at or about the time when the Suit of 1885 was instituted. Therefore, an
    inference can be drawn under Section 114 of the Evidence Act that the

261 (2003) 10 SCC 578
PART N
490
Hindus were aware of the suit. A reasonable inference can be drawn from
primary facts even if there is no direct evidence of the awareness of the
Hindus of the institution of the earlier suit.
Justice D V Sharma, while coming to the conclusion that the bar of res judicata
was not attracted, held that the earlier suit was not of a representative character
since the requirements of public notice under Section 539 of the Code of Civil
Procedure 1882 were not complied with. The learned Judge observed that
neither were the parties to the earlier suit the same as those in the present
proceedings, nor was the subject matter identical since the earlier suit only
related to the Chabutra. Assailing these findings, Mr Naphade urged that the
plaint in the earlier suit was for the benefit of the Hindus; the Secretary of State in
Council represented all segments of the community and, in any event, the
absence of a public notice under Section 539 would not obviate the bar of res
judicata. In his submission, the application of Explanation VI to Section 11 of the
CPC262 is not subject to Order 1 Rule 8.

  1. Apart from assailing the findings which have been recorded by each of the
    three judges of the Allahabad High Court on the plea of res judicata, Mr Naphade
    has urged that the provisions contained in Section 11 of the CPC 1908 stand
    attracted for the following reasons:
    (i) The matter has been directly and substantially in issue in the former suit
    between the parties since:

262 Section 11 provides thus :
Explanation VI – Where persons litigate bona fide in respect of a public right or of a private right claimed in
common for themselves and others, all persons interested in such right shall, for the purposes of this section, be
deemd to claim under the persons so litigating.
PART N
491
(a) the claim of ownership of possession of the Hindus was rejected
by the Judicial Commissioner in the Suit of 1885; and
(b) there was no challenge to the existence of the mosque in the
previous suit as a consequence of which there is an implicit
acceptance of the title and right of the Muslims;
(ii) The plaintiff in the earlier suit who described himself as a Mahant of the
Janmasthan essentially represented the cause of the Hindus and hence,
res judicata would apply. The earlier suit was ―between the same parties or
between parties under whom they or any of them claim litigating under the
same title‖; and
(iii) The cause of action in the former suit is the same as that in the present
batch of cases. The title to the property claimed by the Hindus is the same
in both the suits and the cause of action is based on the right to construct
the temple.
On these grounds, Mr Naphade submitted that the bar of res judicata is attracted
under Section 11 read with Explanation VI of the CPC. He urged that the failure
to follow the provisions of Section 30 of the Code of 1882 (akin to Order 1 Rule 8
of the CPC 1908) should make no difference since the provisions of Section 11
are not subject to Order 1 Rule 8.
Mr Naphade also urged that the principle of constructive res judicata under
Explanation IV to Section 11 is attracted. Finally, he submitted that the earlier
findings in the Suit of 1885 would operate as issue estoppel and since the order
in the earlier suit was in rem; all Hindus would stand bound by the conclusion. He
PART N
492
urged that the plan, which was annexed to the Suit of 1885, was essentially the
same and hence the principle of estoppel by record would stand attracted.
Controverting the submissions, Mr K Parasaran, learned Senior Counsel
appearing on behalf of the plaintiffs in Suit 5 submitted that the principles of res
judicata are not attracted for the following reasons:
A. Parties are different:
(i) Neither the deities (the plaintiffs in Suit 5) nor the Sunni Central
Waqf Board (the plaintiff in Suit 4) were parties to the Suit of 1885;
and
(ii) The Suit of 1885 was not instituted by Mahant Raghubar Das in a
representative capacity.
B. The suit was for asserting a personal right to construct a temple on the
Chabutra:
(i) No application under Section 30 of the CPC 1882 which was in force
when the earlier suit was instituted, corresponding to Order I Rule 8
of the CPC 1908 was filed;
(ii) Neither the deities nor the Hindu public claimed any right through
Mahant Raghubar Das in 1885;
(iii) In Suit 4, an order was passed on 8 August 1962 under which the
plaintiffs sued in their representative capacity on behalf of the
Muslims and defendant nos 1 to 4 were permitted to be sued on
behalf of the Hindus; and
PART N
493
(iv) Even assuming that the earlier suit was filed on behalf of all Hindus,
the plaintiff-deities in Suit 5 are not bound by its outcome in view of
the decision of this Court in Narayan Bhagwantrao Gosavi
Balajiwale v Gopal Vinayak Gosavi263
.
C. Issues and reliefs sought in the earlier suit are different:
(i) The Suit of 1885 was against the Secretary of State for India, for
permission to construct a temple;
(ii) The present proceedings pertain to the character of the propertywhether it is a public mosque or a place of public worship for
Hindus; and
(iii) In Suit 5, the issue as to whether ‗Asthan Ram Janmabhumi‘ is a
juridical personality is an issue, which goes beyond the relief of the
construction of a temple sought in the Suit of 1885.
D. The suit properties are distinct:
(i) In the Suit of 1885, the subject matter was only the Chabutra
measuring 17×21 feet; and
(ii) In the present proceedings, the suit property in both Suits 4 and 5
comprises of the inner and outer courtyard.
E The Suit of 1885 was instituted when the CPC 1882 was in force. Section
13 of the CPC 1882 dealt with res judicata. Explanation V as it stood only
covered persons who were litigating in respect of a private right claimed in
common for themselves and others. In the CPC 1908, the expression

263 1960 (1) SCR 773
PART N
494
―public right‖ was added to Explanation VI in view of the provisions of
Section 91. The provisions of the CPC are both procedural and
substantive. In the Suit of 1885 only a private right was sought to be
enforced, whereas in the present proceedings a public right to worship is
sought to be enforced. Even if the CPC 1882 was to be applied, which law
prevailed as on the date of the filing of the Suit of 1885, the findings in that
suit (which sought to enforce only a private right) would not operate as res
judicata.
Analysis

  1. The applicability of Section 11 is premised on certain governing principles.
    These are:
    (i) The matter directly and substantially in issue in the suit should have been
    directly and substantially in issue in a former suit;
    (ii) The former suit should be either between the same parties as in the latter
    suit or between parties under whom they or any of them claim litigating
    under the same title;
    (iii) The court which decided the former suit should have been competent to try
    the subsequent suit or the suit in which the issue has been subsequently
    raised; and
    (iv) The issue should have been heard and finally decided by the court in the
    former suit.
    PART N
    495
    Explanation VI to Section 11 is in the nature of a deeming provision which
    extends the ambit of the expression ―between parties under whom they or any of
    them claim, litigating under the same title‖. Under Explanation VI, where persons
    litigate bona fide in respect of a public right or a private right which they claim in
    common for themselves and others, all persons interested in such a right, shall
    be deemed to claim under the persons so litigating. In other words, to attract
    Explanation VI, it is necessary that there must be a bona fide litigation in which
    there is a claim in respect of a public right or a private right claimed in common
    together with others. It is only then that all persons who are interested in such a
    right would be deemed, for the purpose of the Section, to claim under the
    persons so litigating.
    Order 1 Rue 8264 contains provisions under which one person may sue or defend
    a suit on behalf or for the benefit of all persons interested.

264 Order 1 Rule 8 provides thus :
One person may sue or defend on behalf of all in same interest—
(1) Where there are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s
expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where,
by reason of the number of persons or any other cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may
apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be
withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be
recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice
to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or
defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree
passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is
instituted, or defended, as the case may be.
Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend, have the
same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the
person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.
PART N
496

  1. The Suit of 1885 was instituted when the CPC 1882 was in force. Section
    13 contained a provision in regard to res judicata. Section 13 corresponds to
    Section 11 of the CPC 1908, with certain material differences. Explanation V to
    Section 13 contained a deeming provision stating when persons would be
    deemed to claim, litigating under the same title. However, Explanation V to
    Section 13 covered only persons litigating in respect of a private right claimed in
    common for themselves and others. In contrast, Explanation VI to Section 11 of
    the CPC 1908 covers persons litigating in respect of a public right or a private
    right in common for themselves and others. This distinction between Explanation
    V of Section 13 in the CPC 1882 and Explanation VI to Section 11 of the CPC
    1908 is brought out in the following table containing the two provisions:
    Section 13 CPC 1882 Section 11 CPC 1908
    Explanation V – Where persons
    litigate bonafide in respect of a private
    right claimed in common for themselves
    and others, all persons interested in
    such right shall, for the purpose of this
    section, be deemed to claim under the
    persons so litigating.
    Explanation VI – Where persons
    litigate bonafide in respect of a public
    right or of a private right claimed in
    common for themselves and others, all
    persons interested in such right shall,
    for the purpose of this section, be
    deemed to claim under the persons so
    litigating.
    It may be noted at this stage that Section 92 of the CPC 1908 contains a
    provision corresponding to Section 539 of the CPC 1882. However, the CPC
    1908 introduced Section 91 to deal with public nuisances and other wrongful acts
    PART N
    497
    affecting the public. The words ―of public right‖ were introduced in Explanation VI
    of Section 11 of the CPC 1908 in order to give due effect to suits relating to public
    nuisances incorporated in Section 91. Thus, the deeming provision contained in
    Explanation V to Section 13 of the CPC 1882 was expanded in the corresponding
    provision contained in Explanation VI to Section 11 of the CPC 1908 to cover a
    case where persons litigate bona fide in respect of a private right or a public right
    claimed in common with others. When the earlier Suit of 1885 was instituted,
    Explanation V had no application to a situation where persons were litigating in
    respect of a public right as distinct from a private right.
  2. Mr K Parasaran, learned Senior Counsel argued that the provisions of the
    CPC contain provisions some of which relate to matters of procedure while others
    deal with matters of substance (See Durgesh Sharma v Jayshree265). For
    instance, it has been held that the right to file an appeal from a judgment and
    decree in a suit is a substantive right and this right is governed by the law which
    prevailed on the date of the institution of the suit. Hence, in Garikapati Veeraya v
    N Subbiah Choudhry266, a Constitution Bench of this Court held:
    ―23… (iii) The institution of the suit carries with it the
    implication that all rights of appeal then in force are preserved
    to the parties thereto till the rest of the career of the suit.
    (iv) The right of appeal is a vested right and such a right to
    enter the superior court accrues to the litigant and exists as
    on and from the date the lis commences and although it may
    be actually exercised when the adverse judgment is
    pronounced such right is to be governed by the law prevailing
    at the date of the institution of the suit or proceeding and not
    by the law that prevails at the date of its decision or
    at the date of the filing of the appeal.

265 (2008) 9 SCC 648
266 1957 SCR 488
PART N
498
(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by
necessary intendment and not otherwise.‖
Mr K Parasaran urged that Explanation V to Section 13 of the CPC 1882
excluded the application of res judicata where the earlier suit was for litigating a
public right claimed in common with others.
Justice Sudhir Agarwal rejected the submission that it was the CPC 1882 that
should be applied while analysing the application of the principles of res judicata.
However, even on the basis that it was the CPC 1908 which would apply, the
learned Judge came to the conclusion that the Suit of 1885 and the findings
which were recorded by the Judicial Commissioner would not operate as res
judicata.
Mr K Parasaran‘s submissions essentially boil down to this: according to him
Explanation V to Section 13 of the CPC 1882 (which held the field when the Suit
of 1885 was instituted) applied when the earlier suit was being litigated on the
basis of a private right claimed in common with others. Hence, a subsequent suit
for agitating a public right claimed in common with others is not barred by the
principles of res judicata as embodied in Explanation V. The ambit of the
explanation was expanded in the CPC 1908 while introducing Explanation VI to
Section 11 to cover a claim based on a public as well as a private right asserted
in common with others. Mr K Parasaran urges that this provision which is
introduced in Explanation VI cannot be construed to bar a suit instituted after the
enforcement of the CPC 1908 on the basis of an adjudication made in a suit
PART N
499
which was instituted in 1885 when the CPC 1882 held the field. This, in his
submission would not be a matter of procedure but would take away a
substantive right accruing to a party if the bar of res judicata would apply.
Consequently, unless there was an explicit stipulation in the CPC 1908 providing
for the principle of res judicata to apply to suits agitating a public right
retrospectively, the suit instituted in 1885 cannot fall within the ambit of the bar
within Explanation VI of the CPC 1908.
For the purposes of the present proceedings, it is not really necessary to analyse
in any great detail this submission by Mr K Parasaran for, in any view of the
matter, it is evident that the Suit of 1885 would not operate as res judicata either
on the application of the provisions of Section 13 of the Code of 1882 or on the
application of Section 11 of the Code of 1908. The pleadings and the findings in
the earlier Suit of 1885 show that Mahant Raghubar Das was only asserting a
right that was personal to him. The earlier suit was not instituted in a
representative capacity; the issues framed, and reliefs sought were distinct and
so were the suit properties.

  1. Before a suit can be prosecuted or defended under Order I Rule 8, it is
    essential that there must be numerous persons having the same interest in a suit.
    Before a person can be allowed to either prosecute or defend the suit on behalf
    of others interested, specific permission of the court is mandated. Sub-rule 2 of
    Order I Rule 8 requires notice of the institution of the suit to all persons
    interested, in the manner as directed or by public advertisement. A person on
    PART N
    500
    whose behalf or for whose benefit a suit has been instituted or is being defended
    may apply to be impleaded as a party to the suit. Under sub-rule 4, no part of the
    claim in the suit can be abandoned and the suit cannot be withdrawn nor can a
    compromise agreement or satisfaction be recorded unless notice has been
    furnished to all persons interested. Subject to compliance with the provisions
    contained in Order I Rule 8, a decree in such a suit is binding on all persons on
    whose behalf or for whose benefit the suit is instituted or defended.
    In Kumaravelu Chettiar v T P Ramaswami Ayyar267, the Privy Council held:
    ―Explanation 6 is not confined to cases covered by Order 1,
    Rule 8 but extends to include any litigation in which, apart
    from the Rule altogether, parties are entitled to represent
    interested persons other than themselves.‖
    The above principle was followed in a decision of three judges of this Court in
    Narayana Prabhu Venketeswara Prabhu v Narayana Prabhu Krishna
    Prabhu268
    . This Court held that in a partition suit, each party claiming that the
    property is joint, asserts a right and litigates under a title which is common to
    others who make identical claims. Hence:
    ―20…In a partition suit each party claiming that the property is
    joint, asserts a right and litigates under a title which is
    common to others who make identical claims. If that very
    issue is litigated in another suit and decided we do not see
    why the others making the same claim cannot be held to be
    claiming a right ―in common for themselves and others‖. Each
    of them can be deemed, by reason of Explanation VI, to
    represent all those the nature of whose claims and interests
    are common or identical. If we were to hold otherwise, it
    would necessarily mean that there would be two inconsistent
    decrees. One of the tests in deciding whether the doctrine of
    res judicata applies to a particular case or not is to determine

267 AIR 1933 PC 183
268 (1977) 2 SCC 181
PART N
501
whether two inconsistent decrees will come into existence if it
is not applied. We think this will be the case here.‖

  1. In Gurushiddappa Gurubasappa Bhusanur v Gurushiddappa
    Chenavirappa Chetni269, a learned Single Judge of the Bombay High Court
    (Justice Rangnekar) held:
    ―Order 1, rule 8, is exhaustive of what it says, and it is clear
    from it that it is only when the parties are numerous that a suit
    can be brought under the provisions of Order I, rule 8. That it
    is possible for a suit to be a representative suit within the
    meaning of Explanation VI, although it need not come under
    Order I, rule 8, and, therefore, need not be brought under the
    provisions of that Order, has been held from very earliest
    times in this country…
    Explanation VI, therefore, is not confined to cases covered by
    Order I, rule 8, but would include any litigation in which, apart
    from the rule altogether, parties are entitled to represent
    interested persons other than themselves.‖
    Hence, for the purpose of considering Mr Naphade‘s arguments, we proceed on
    the principle that the provisions of Order I Rule 8 do not control the applicability of
    Explanation VI to Section 11 of CPC 1908. The applicability of the principles of
    res judicata in the facts of the present case needs to be analysed. The position
    which emerges on the touchstone of the principles contained in Section 11 is as
    follows:
    (i) The first point to be considered is whether the parties to the subsequent
    suit are the same as the parties to the earlier suit or whether they litigate
    under the same title. The earlier suit was instituted by Mahant Raghubar
    Das describing himself as the Mahant of the Janmasthan situated at
    Ayodhya. The suit was not instituted by Raghubar Das as the Mahant of

269 AIR 1937 Bombay 238
PART N
502
Nirmohi Akhara. Conspicuously absent in the Suit of 1885 is any reference
to Nirmohi Akhara. Hence, the primary requirement for the applicability of
Explanation VI to Section 11 is not attracted. The Suit of 1885 was a suit
instituted by Mahant Raghubar Das in his personal capacity. It was not a
suit either in his capacity as the Mahant of Nirmohi Akhara or a suit
instituted jointly on behalf of the Hindus;
(ii) Neither the deities who are the first and second plaintiffs to Suit 5 nor the
Sunni Central Waqf Board which is the plaintiff in Suit 4 were parties to the
Suit of 1885. Mahant Raghubar Das instituted the earlier suit initially
impleading only the Secretary of State for Council in India. Later, Mohd
Asghar was impleaded in his capacity as a Mutawalli. The parties to the
earlier proceedings were distinct;
(iii) The relief that was sought in the earlier suit was permission to construct a
temple on Ramchabutra. In the present proceedings, the reliefs, which
have been sought, require, inter alia an adjudication in regard to the
character of the disputed property namely whether it is a mosque which is
dedicated for the public or whether it is a place of worship for the Hindus;
and
(iv) The Suit of 1885, only dealt with the Chabutra at the Janmasthan
admeasuring 17 x 21 feet, which was claimed to be in the possession of
the plaintiff. The map showing the subject matter of that suit has been
annexed to the proceedings. On the other hand, the suit property in Suits 4
and 5 comprises of both the inner and the outer courtyard. In Suit 5, the
relief which has been claimed is:
PART N
503
―a declaration that the entire premises of Sri Ram Janma
Bhumi at Ayodhya, as described and delineated in Annexures
I, II and III belong to the plaintiff deities.‖
Paragraph 2 of the plaint describes annexures I, II and III:
―two site plans of the building premises and of the adjacent
area known as Sri Rama Janma Bhumi, prepared by Shiv
Shankar Lal pleader… along with his Report dated
25.05.1950, are being annexed to this plaint and made part of
it as Annexures I, II and III, respectively.‖
After the decision of the Constitution Bench in Dr M Ismail Faruqui v Union of
India270, the dispute now stands restricted only to the inner and outer courtyards,
described in Annexure I to the plaint in Suit 5. The High Court adjudicated on this
dispute as circumscribed by the directions of this Court. The suit property in suits
4 and 5 is larger than the Chabutra admeasuring 17 x 21 feet which formed the
subject matter of the earlier Suit of 1885 though, undoubtedly the Chabutra also
forms a part of the suit property.

  1. In V Rajeshwari (Smt) v T C Saravanabava271
    , the appellant instituted a
    suit in 1984 for seeking a declaration of title and for recovery of possession of
    property admeasuring 1817 sq feet. Earlier in 1965, one of her predecessors-intitle had instituted a suit for declaration of title and for possession of an area of
    over 240 sq feet situated on the upper floor of the building standing on the
    property against the respondent. The High Court held that the issue of title and
    possession had been decided in the suit instituted by the predecessor-in-title of

270 (1994) 6 SCC 360
271 (2004) 1 SCC 551
PART N
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the appellant and the subsequent suit was barred by res judicata. While reversing
the decision of the High Court, this Court held:
―15. Reverting back to the facts of the present case,
admittedly, the plea as to res judicata was not taken in the
trial court and the first appellate court by raising necessary
pleadings. In the first appellate court the plaintiff sought to
bring on record the judgment and decree in the previous suit,
wherein his predecessor-in-title was a party, as a piece of
evidence. He wanted to urge that not only he had succeeded
in proving his title to the suit property by the series of
documents but the previous judgment which related to a part
of this very suit property had also upheld his predecessor’s
title which emboldened his case. The respondent thereat,
apprised of the documents, still did not choose to raise the
plea of res judicata. The High Court should not have entered
into the misadventure of speculating what was the matter in
issue and what was heard and decided in the previous suit.
The fact remains that the earlier suit was confined to a
small portion of the entire property now in suit and a
decision as to a specified part of the property could not
have necessarily constituted res judicata for the entire
property, which was now the subject-matter of litigation.‖
(Emphasis supplied)

  1. Mr Naphade relied upon a decision of a two judge Bench in K Ethirajan v
    Lakshmi272
    , in support of the proposition that the principle of res judicata under
    Section 11 is attracted where the issues directly and substantially involved
    between the same parties in the previous and subsequent suits are the same,
    even though in a previous suit, only a part of the property was involved while in
    the subsequent suit, the whole of the property was the subject matter of the
    dispute. The difficulty in accepting the plea of res judicata which has been urged
    by Mr Naphade is simply this:
    (i) The earlier suit by Mahant Raghubar Das in 1885 was not in a
    representative capacity. Mahant Raghubar Das claimed himself to be the

272(2003) 10 SCC 578
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Mahant of the Janmasthan. He did not set up any plea as the Mahant of
Nirmohi Akhara. The claim was personal to him;
(ii) Neither the plaintiff in Suit 4 nor the plaintiff deities in Suit 5 were parties to
the earlier proceedings. The Suit of 1885 was not instituted in a
representative capacity for and on behalf of the Hindus nor was there any
pleading to that effect. Mahant Raghubar Das did not set up any claim to
shebaiti rights nor did the adjudication deal with any claim of a shebaiti
character. On the other hand, this forms the very basis of the claim in Suit
3 and of the defence to the maintainability of Suit 5 raised on behalf of
Nirmohi Akhara;
(iii) The Trial Court while dismissing the Suit of 1885 had entered a finding that
possession and ownership of the Chabutra vested in the Hindus. The suit
was however dismissed on the ground that the grant of permission to raise
a temple would involve a serious breach of law and order. The dismissal of
the suit on this ground was affirmed in appeal by the District Judge.
However, the finding in regard to possession and ownership of the
Chabutra was rendered redundant and was accordingly directed to be
struck off. The Judicial Commissioner confirmed the dismissal of the suit.
Though, the Judicial Commissioner held that the Hindus seem to have a
limited right of access to certain spots within the precincts of the adjoining
mosque, he observed that there was nothing to establish that the plaintiff
(Mahant Raghubar Das) is the proprietor of the land in question. This
finding rendered in a suit to which neither the plaintiff-deities nor Nirmohi
Akhara were parties cannot operate as res judicata against them;
PART N
506
(iv) The doctrine of res judicata seeks to prevent a person being vexed twice
over in respect of a dispute founded on the same cause of action. The
cause of action for the Suit of 1885 was, as seen earlier entirely, distinct;
and
(v) The decision in the Suit of 1885 was in personam, based on the claim
made by the plaintiff in that suit. Any observations in the judgment of the
Judicial Commissioner will neither bind the deities (plaintiffs in Suit 5) who
were not parties to the earlier proceedings nor the Hindus. Moreover, there
was no adjudication in the Suit of 1885 in respect of the claim of title made
by the Muslims in Suit 4.

  1. There is absolutely no merit in the contention that the principles of
    constructive res judicata will bar the subsequent suits. The parties were distinct.
    The claim in the earlier suit was distinct. The basis of the claim was indeed not
    that which forms the subject matter of the subsequent suits. Similarly, there is no
    merit in the submission based on the doctrine of issue estoppel or estoppel by
    record which has been faintly urged. Consequently, and for the above reasons,
    there is no merit in the submissions which have been urged by Mr Naphade,
    learned Senior Counsel objecting to the maintainability of Suit 5 on the ground of
    res judicata.
    PART N
    507
    N.9 Archaeological report
  2. Both in the suit instituted by the Sunni Central Waqf Board273 and in the
    suit instituted by the deities274, an issue was framed on whether the disputed
    structure of a mosque has been erected after demolishing a temple which existed
    at the site.
  3. On 1 August 2002, the High Court proposed that an excavation be carried
    out by the Archaeological Survey of India275. The High Court proposed that before
    excavation, ASI will survey the disputed site using Ground Penetrating Radar276
    or Geo-Radiology System. After objections to the proposed directions were
    heard, they were rejected by the High Court on 23 October 2002. The ASI had a
    GPR survey conducted by a corporate entity which submitted its report to the
    High Court on 17 February 2003.The report found the presence of ―anomaly
    alignments across the main platform north and south of the sanctum sanctorum
    corresponding to the Ramchabutra area‖. The anomalies suggested the following
    position:
    ―…in their cross-section appearance and their areal pattern,
    the ―anomaly alignments‖ may correspond to a wall
    foundation of some sort. In the Ram Chabutra area, the
    crossing patterns of those alignments and the different
    stratigraphic units from where they (emerge) suggest that
    they belong to successive construction periods rather than
    being contemporary to one another.‖

273 Issue 1(b) in OOS No. 4 of 1989 as follows : ―Whether the building had been constructed on the site of an
alleged Hindu Temple after demolishing the same as alleged by defendant no. 13? If so, its effect?
274 Issue No. 14 in OOS No. 5 of 1989 reads as follows : ―Whether the disputed structure claimed to be Babri
Masjid was erected after demolishing Janma Sthan Temple at its Site?‖
275 ―ASI‖
276 ―GPR‖
PART N
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The report also found that the sequence in the southern portion of the
Ramchabutra area ―may be indicative of a flooring structure of some sort,
possibly stone slabs if its origin is ancient.‖ Besides, the report indicated:
―A third type of buried structures covers the entire eastern
boundary of the site. It consists of buried mound structures
with some internal texture or structure indicative of collapsed
material. Similar types of anomalies have been detected to
the south-west area just before the terrain slopes down.‖
In conclusion, the GPR survey reflected a variety of anomalies ranging from 0.5
to 5.5 meters in depth ―that could be associated with ancient and
contemporaneous structures such as pillars, foundations, walls slabs, flooring
extending over a large portion of a site‖. However, the survey indicated that the
exact nature of these anomalies could be determined on the basis of
archaeological trenching. Upon receiving this report, the High Court directed ASI
to conduct an excavation at the disputed site to the following extent:
―The area shown in the report of the Commissioner submitted
in Suit No. 2 of 1950 (OOS No. 1 of 1989) covering an area of
approximately 100×100 shown in the map plan No. 1 referred
to by letters A,B,C,D,E,F and thereafter northern portion up to
the end of the raised platform and further to the west, south
and east to the said site to the extent of 50 feet.‖

  1. The archaeologists were directed not to disturb the area where the idol of
    Lord Ram was installed and an area around the idol to the extent of 10 feet. ASI
    was asked not to prevent worship at the site. Following this order, the High Court
    issued further directions on 26 March 2003 for recording the nature of the
    excavations found at the site and the sealing of the artefacts found in the
    presence of the parties and their counsel. The ASI team was directed to maintain
    a record of the depth of the trenches where the artefacts were found as well as
    PART N
    509
    the layer of the strata. Photographs of the findings were permitted to be taken. In
    order to bring objectivity to the process and sub-serve the confidence of the
    parties, the High Court ensured that adequate representation to both the
    communities be maintained ―in respect of the functioning of the ASI team and the
    engagement of the labourers‖. During the course of the process, the High Court
    considered various objections filed by parties with respect to the excavation. The
    ASI submitted its final report on 22 August 2003 to which objections were
    addressed by the Sunni Central Waqf Board and other parties. These objections
    were dealt with by the High Court.
  2. A wealth of arguments have been urged on the archaeological evidence in
    the present dispute. The arguments touch upon diverse issues such as the
    findings in the report, the inferences which have been drawn from them,
    archaeology as an inferential science as well as the value of archaeological
    evidence in disputes such as the present. This Court must address, inter alia: (i)
    the findings of the report and the methodology adopted; (ii) the objections raised
    against the findings of the report; (iii) the scope of the enquiry at the present
    stage, including the degree of judicial deference to expert evidence; (iv) The
    challenge to archaeological evidence as purely inferential and subjective in
    nature; (v) the standard of proof and (vi) the remit of the report and questions left
    unanswered. Finally, an enquiry relevant to the present controversy is the
    probative value of archaeological evidence in the determination of title which shall
    be adverted to in the course of the judgment.
    PART N
    510
  3. The ASI report has indicated its objectives and methodology at the
    commencement of the report. The manner in which trenches were planned for
    excavation is indicated thus:
    ―In planning the excavation, it was decided to adopt the latest
    technique of layout of trenches where limited spaces are
    available and therefore in place of general practice of lay out
    of 10×10 m. squares divided into four quadrants of 4.25×4.25
    m. separated by 0.50 m. baulk all-round, the change in the
    practice was made by fixing pegs at a distance of every 5 m
    in both north-south and east-west directions with cutting area
    of 4×4 m in leaving 0.5 m baulk all around which in
    contiguous trenches effectively left a space of 1.0 m in
    between two cuttings for the easy movement of
    archaeologists and labourers. One meter wide baulk was
    specially provided, considering the fact that due to modern
    fillings and debris the trench may not collapse due to earth
    pressure in a most sensitive area.‖
    The team laid trenches throughout the disputed area except for the place where
    the deity has been installed and collected samples for scientific study:
    ―Samples of plaster, floors, bones, charcoal, palaeo-botanical
    remains were also collected for scientific studies and
    analysis. Trenches were also laid in the entire disputed area
    on all sides excepting the area of the makeshift structure
    where Ram Lala is enshrined along with its periphery at a
    distance of 10 feet from Ram Lala as specified by the High
    Court. The excavation work was planned in phased manner in
    particular areas as per significant signals for anomalies
    pointed out by the GPR Survey.‖
    The work of excavation and its findings were documented by still and video
    footage. ASI has excavated ninety trenches in a period of five months and
    submitted its report of excavation within fifteen days of the completion of
    excavation. The ASI team has carried out its task in the presence of parties and
    their counsel. Excavated material including antiquities, objects of interest, glazed
    pottery, tiles and bones recovered from the trenches were sealed in the presence
    PART N
    511
    of parties and their advocates and lodged in a strong room provided by the
    Commissioner of Faizabad Division.
    The Eastern Area
  4. The ASI team initially took up excavation in the eastern area where the
    enclosure wall along with remnants of a gateway were noticed, below which lie
    floors and walls of earlier phases. The central part of the platform, known as the
    Ramchabutra was noticed in this area constructed in five stages. The main
    features which have been exposed are elucidated below:
    ―The main features exposed in this area include fourteen
    extant courses of reused brickbats and calcrete stone blocks
    in the enclosure wall with a part of 2.12 m in the middle of the
    wall suggesting the entrance doorway which was topped by
    marble slabs and the floor levels consisting of lime and
    cement floors topped by marble dedicatory slabs of the
    second half of the twentieth century. Some elongated hearths
    and a furnace of late Mughal period were found (Pl.3).‖
    The Southern Area
    Twenty-three trenches were excavated towards south of the raised platform. The
    excavation resulted in nearly fifty pillars bases of an earlier period being exposed
    at two points, traces of earlier pillars bases were also found below the pillar
    bases. The excavation in this area also resulted in the finding of a brick circular
    shrine on its outer part and squarish on its inner with a rectangular projection for
    entrance in the east and a chute on its northern side. The relevant part of the ASI
    report is extracted below:
    PART N
    512
    ―Parts of the northern and western walls and their foundation
    and the foundation of the southern and eastern sides built of
    calcrete stone blocks of the disputed structure were exposed
    which were found resting directly in the west over a 1.77 m
    wide brick wall of earlier period, the lower part of which has
    decorated stone blocks and calcrete stone foundation and
    over 50 pillar bases arranged at regular intervals connected
    with the lime plastered brick wall through a floor. The core of
    the wall of the disputed structure was filled with brickbats. The
    pillar bases comprise some courses of brick bats in squarish
    or circular formations over which two to five calcrete stone
    blocks are kept, possibly below and stone blocks as found in
    the northern area, though only one decorated sand stone
    block was found in this area. Further below the abovementioned brick wall another brick wall was noticed on the top
    of which decorated stone blocks were found used. In the
    levels further down brick structures were noticed in trenches
    E8 and F8, though their full plan could not be exposed. At two
    points, below the pillar bases, traces of earlier pillar bases
    were also found in trenches F8 and F9 which were connected
    with the second floor below the floor with which most of the
    other pillar bases were connected. The brick wall mentioned
    above was found badly damaged on the southern side,
    possibly for taking out its bricks. This wall was found
    extending in the northern side of the raised platform. A brick
    shrine, circular on its outer and squarish on its inner plan with
    a rectangular projection for entrance in the east and a chute
    on its northern side was found below the levels of abovementioned walls. Due to steep slope in the area further south
    of the trenches, it was not possible to excavate there. The
    natural soil was reached in G7 at the depth of 10.84 m, which
    was confirmed by digging further upto the depth of 13.20 m.
    (Pl.5).‖
    The Western Area
    At some places remains of a brick wall having nearly fifty courses were seen.
    The Northern Area
    The ASI team notes:
    ―The massive brick wall located in the southern area was
    noticed running in north-south direction in this area and below
    its level another wall was also found as seen earlier in the
    southern area. The top three floors and pillar bases attached
    PART N
    513
    with the top floor were exposed (Pl/10). The interesting
    features of the pillar bases in this area was that over the
    calcrete stone blocks these bases were given proper finishing
    by providing squarish stone blocks of sand stone encased
    with four upright stone pieces placed on the four sides for
    giving support to the pillar at the base in order to avoid any
    movement. The stone blocks project a little above the floor.‖
    The Raised Platform
    After the demolition of the disputed structure and in terms of the order of the High
    Court dated 5 March 2003, excavation was partly carried out in ninety trenches.
    Parts of four trenches in the southern area were under the raised platform. Here
    the ASI team noted brick structures, floors and pillar bases below the floors and
    walls of the disputed structure on the raised platform as well.
  5. Chapter III of the ASI report inter alia deals with ―Stratigraphy and
    Chronology‖. The report indicates that excavation has yielded a continuous
    cultural sequence involving a depth of 10.80 meters. This can be divided into nine
    cultural periods (explained below) on the strength of ―combined and corroborative
    evidences of pottery sequence, structural remains and other datable finds‖. The
    report indicates that structural activities in the excavated area had commenced
    from the Kushan period and continued in the Gupta and post-Gupta periods:
    ―Excavations have made it amply clear that the site had seen
    successive structural activities which began from the middle
    of the Kushan level at the site. The brick and stone structures
    that were raised in Kushan and the succeeding periods of
    Gupta and post-Gupta times have added heights to the
    mound. To build further structures upon the earlier debris the
    later people added a deposit of earth excavated from the
    periphery of the mound, which belonged to the much earlier
    cultural periods. This is true for the rest of the structural
    phases also.‖
    PART N
    514
    The ASI report suggested that the C14 determination of charcoal samples from
    the early levels (periods I to III) provide dates commencing from the last centuries
    of second millennium B.C.
    The ASI report, as stated above finds the existence of deposits of nine cultural
    periods. These are:
    (i) Period – I
    Northern Black Polished Ware Level
    This period pertains to the sixth to third century B.C. where the earliest people to
    settle at the site used Northern Black Polished Ware and other associated ware
    (Grey ware, Black slipped ware and Red ware) which are diagnostic ceramics of
    that period. No substantial structural activity was noticed except for reed
    impressions on burnt clay. The findings of the excavation are:
    ―Period – I (Northern Black Polished Ware Level)
    ….Besides the pottery this level yielded broken weights,
    fragments of votive tanks, ear-studs, discs, hopscotches, a
    wheel made on disc, a broken animal figurine (all in
    terracotta), an iron knife (broken), glass beads, bone point,
    etc. However, the most significant find from the level is a
    round bezel in greenish glass with legend ‘sidhe’ in high relief
    in Asokan Brahmi on the obverse while the reverse in plain
    (Rg.No.778).‖
    (ii) Period – II
    Sunga Level
    The Sunga Level relates to ‗circa second-first century B.C‘. During this period, the
    site witnessed the first structural activities in stone and brick. The ASI report
    states:
    PART N
    515
    ―…It is in this period that the site witnessed first structural
    activity in stone and brick, as noticed in J3. The level is
    represented by terracotta objects comprising human and
    animal figurines, bangle fragment, ball, wheel and a broken
    sealing with only ‘sri’ letter in Brahmi extant (Rg No.701), a
    saddle quern and part of a lid in stone, a glass bead, a hairpin
    and an engraver on bone and an ivory dice, besides the
    period pottery of the level.‖
    (iii) Period –III
    Kushan Level
    This period which relates to circa first-third century A.D. has resulted in the
    finding of rich deposits of pottery. In one of the trenches, a huge kiln was noticed
    at the lower levels. The findings of the excavation are as follows:
    ―In trench G7, however, the limited area yielded animal and
    human figurines, bangle fragment and a portion of votive tank
    all in terracotta, a hairpin in bone, a bead in glass and an
    antimony rod in copper. In trench 15, though the regular
    stratified deposit was not encountered in the operation area,
    the eastern section yielded a record of regular deposition and
    almost all the structural activity at the site. A massive brick
    construction, running into 22 courses above excavated
    surface, is noticed at the bottom of J5-J6 which belongs to
    this period. The Kushan period certainly gave a spurt to
    construction of structures of large dimensions which attest to
    their public status. Besides, the same trench provided
    evidence for a stone structure, nature of which is not very
    clear.‖
    (iv) Period –IV
    Gupta Level
    This period pertains to the fourth-sixth century A.D. which is attested by the
    presence of terracotta figurines and a copper coin. The ASI report indicates:
    ―Almost 2 m thick deposit, represented by layer 7 and 8 G7,
    by layers 9 and 10 in J5-J6 and layers 7 and 8 in trenches E8
    PART N
    516
    and F8, above the remains of the preceding period belong to
    Gupta times (circa fourth-sixth century A.D.), the presence of
    which is attested mostly by terracotta figurines typical of the
    period and of course by a copper coin (3.75 m. layer 8, G7,
    Rg. No.1030) bearing image of king on the obverse
    and garuda standard in upper register and legend ‘sri
    chandra(gupta)’ in lower register on the reverse.‖
    (v) Period –V
    Post Gupta – Rajput Level
    This period pertains to the seventh to tenth century A.D. The excavation
    pertaining to the above period has resulted in the unearthing of a circular
    subsidiary shrine belonging to the late level of this period:
    ―The period is marked by the appearance of the knife-edge
    bowls and other types which belong to the period from
    seventh to tenth century A.D. In this period also structural
    activities were witnessed in numerous phases in trench E8
    and F8. A circular subsidiary shrine belonging to the late level
    of this period was exposed in trench E8-F8 (Fig 24 and 24A).
    Among the pottery assemblage Kushan type is more frequent
    than the period pottery.‖
    (vi) Period VI
    Medieval –Sultanate Level
    This period pertains to the eleventh–twelfth century A.D. The findings of the
    excavation are:
    ―A thick floor made of brick-crush floor appears, on the
    circumstantial evidence, to have been attached to a wide and
    massive looking north-south oriented brick wall (No.17)
    markedly inclined to east (noticed in trenches D7 and E2-E1,
    F1 and ZF) which was the major structural activity of the
    period (circa eleventh-twelfth century A.D.). Another wall in
    same orientation has been noticed in G2 and ZG1 at a depth
    of 180 cm which is sealed by layer 6A in G2. The red brickcrush floor is noticed extending in a large area of the mound
    covering trenches E8, F8, G7, J5 & J6 with varying thickness.
    At the same level, in trench G5, calcrete stone blocks have
    been noticed in formation which may be of large dimension.‖
    PART N
    517
    (vii) Period –VII
    Medieval Level
    This period lasted from the end of the twelfth to the beginning of the sixteenth
    century A.D and comprises of structural activities in three sub-periods – A, B and
    C. In sub-period A, the excavation shows:
    ―..In sub-Period-A, a massive wall (no.16) in north-south
    orientation was constructed, the foundation trench of which
    cuts the red brick-crush floor of the previous period. A new
    style of construction is noticed in this period, however, in a
    limited area. Level of the mound was raised considerably by
    the material excavated from the vicinity to lay a floor of lime
    mixed with fine clay and brick-crush, over which a columnbased structure was built (evidence of pillar bases are
    available in trenches F9, F8 and G7).‖
    For sub-period-B, the ASI report indicates:
    ―There is a circular depression specially made by cutting the
    large brick pavement (Pl. 67), having the diameter of 1.05 m.
    with a rectangular projection of 0.46×0.32 m towards west. It
    is interesting to note that the circular depression comes in the
    centre of the pavement if the central part is calculated on the
    basis of extant length of wall 16 or wall 17 and longitudinal
    length of the alignment of pillar bases from north to south.
    Thus, suggesting it as a place of importance. Besides, the
    circular depression faces the central part of the disputed
    structure over which ‗Ram Lalla‘ is enshrined. Bricks
    measuring 50x50x8 to 10 cm. 50x47x8 and 40x40x6 cm were
    used in the pavement as specially made floor tiles.‖
    The above finding for sub-period B reports the existence of a circular depression,
    its centrality indicating it to be a place of importance. It is also stated that the
    circular depression faces the central part of the disputed structure over which the
    deity is enshrined.
    In sub-period C, there is a finding of foundations to support pillars or columns:
    ―In this deposit foundations to support pillars or columns were
    sunk which were overlaid with a 4-5 cm thick floor which had
    PART N
    518
    a grid of square sandstone bases for pillars projecting out,
    only a few still survive. Floor around most of the pillar bases
    is found broken with pillar base foundations in much disturbed
    condition.‖
    (viii) Period –VIII
    Mughal Level
    The report indicates:
    ―The floor of the previous period (Period VII-C) is found cut by
    the stone black (mostly calcrete) foundations of the disputed
    structure (mosque). However, the north-south wall of the
    Period VII-A is retained as foundation for the back wall. Inside
    the foundation and in the immediate front part a layer of
    rammed earth is laid which is then overlaid with rammed
    deposit of grey coloured kankars and a thin layer of ashy
    deposit which contains riverine shells burnt white. The total
    deposit accounts for a thickness of about 20-25 cm, which
    acts as a soling for the first floor of the Mughal period inside
    as well as outside of the structure to a short distance to the
    east forming an apron floor.‖
    (ix) Period –IX
    Late and Post Mughal Level
    In this period, two successive floors were laid, another platform was added to the
    east forming a terrace and subsequently two successive enclosure walls were
    erected. Moreover:
    ―In this period to attaché a terraced platform to the east of the
    existing one, deposits of the earlier periods were excavated
    and removed, in which the floor of the period VII-C was cut
    and destroyed from the eastern area. Slightly later, a partition
    wall was added attached to the first terrace platform along
    with a small step in the centre. And then was added another
    floor inside the structure which ran out on the now enclosed
    platform and abutted to the partition wall. Sometimes later an
    enclosure wall was added to the entire complex without any
    foundation which rested over the existing floor, which was
    provided with two gates, larger one to the north and a smaller
    one to the east. Sometimes around this period dead bodies
    were buried in the north and south of the disputed structure
    which have cut the top floors and which are sealed by layer
    1.‖
    PART N
    519
  6. Chapter IV of the ASI report deals with structures. A significant aspect of
    this Chapter is a section titled ―The Massive Structure Below the Disputed
    Structure‖. The relevant findings are extracted below:
    ―From the excavation it could be inferred that there were
    seventeen rows of pillar bases from north to south, each
    row having five pillar bases. Due to area restriction and
    natural barrier, the pillar bases in the central part
    occupied by the make-shift structure on the raised
    platform could not be located. Out of excavated fifty pillar
    bases only twelve were completely exposed, thirty five
    were partially exposed and three could be traced in
    sections only. A few pillar bases were noticed during earlier
    excavation after which a controversy took place about their
    association with different layers and their load bearing
    capacity. The present excavation has set aside the
    controversy by exposing the original form of the bases having
    calcrete and stone blocks arranged and set in a proper
    manner over a brick foundation and their arrangements in row
    including their association with the top floor of the structure
    existing prior to the disputed structure.
    The seventeen rows of pillar bases were constructed along
    the north-south running brick wall (wall 16) on the west. The
    distance of the first pillar base in each row from the wall
    ranges from 3.60 to 3.86 m. Seventeen rows of pillars bases
    could be categorized in three different groups on the basis of
    north-south distance which varies in different groups whereas
    east-west distance from centre to centre of each pillar base
    vary from 2.90 to 3.30m. Six rows of the pillar bases on north
    and south were at the equidistance which ranges from 3 to
    3.30 m. Central five rows consisting twenty five pillar bases
    show different equations – two rows on either sides of the
    central row were placed approximately at the distance of 5.25
    m. whereas the other two rows on either side of these three
    rows were at the distance of 4.20-4.25 m. From this it could
    be easily concluded that the central part of the pillared
    structure was important and special treatment was given to it
    in architectural planning.
    In the southern area only one decorated sand stone was
    found over a pillar base while in the northern area many of
    the pillar bases were found topped by a plain sand stone
    block set over the brick bat foundation having calcrete blocks
    over them (Pl. 36). The plain sand stone block was found in
    many of the cases having a stone encasing from all the four
    sides, possibly to avoid shifting of the pillar placed over the
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    block (Pls 37-38). Top parts of stone encasings had a
    projection in the middle. In the northern area at a few places
    where the stone blocks were not found sand stone slabs were
    found over the calcrete blocks of the brick bat foundation of
    the pillar bases. The decorated octagonal sand stone
    block on pillar base 32 having floral motif on the four
    corners in trench F7 in the southern area is the unique
    example at the site (Pl. 39) which definitely belongs to the
    twelfth century A.D. as it is similar to those found in the
    Dharmachakrajina Vihara of Kumaradevi at Sarnath (Pl.
    40) which belongs to the early twelfth century A.D.‖
    (Emphasis supplied)
    The ASI report contains a detailed analysis of as many as 47 pillars bases.
    The Circular shrine
    The ASI report contains an analysis of an east facing brick shrine which was
    exposed as a result of the excavation. The report notes:
    ―A partly damaged east facing brick shrine, structure 5
    (Pls 59-60, Fig 17,24 and 24A) was noticed after removal of
    baulk between trenches E8 and F8. It is a circular structure
    with a rectangular projection in the east, the latter having
    been already visible before the removal of the baulk. The
    northern part of the circular part has retained its lower eight
    courses above the foundation of brick-bats while the southern
    half is damaged by constructional activity of the subsequent
    phase whose brick-bats have damaged the structure upto its
    working level. The structure was squarish from the inner
    side and a 0.04 m wide and 0.53 m long chute or outlet
    was noticed on plan made through the northern wall upto
    the end where in the lower course a 5.0 cm thick brick cut
    in ‗V‘ shape was fixed which was found broken and
    which projects 3.5 cm outside the circular outer face as a
    pranala to drain out the water, obviously after the
    abhisheka of the deity which is not present in the shrine now.
    The entrance of the structure is from the east in the form of a
    rectangular projection having a twelve course of bricks
    interlocked with the circular structure and having a 70x27x17
    cm calcrete block fixed in it as the threshold. Two sizes of
    bricks were used in the construction of the shrine measuring
    28x21xx5.5 cm and 22x18x5 cm. The rectangular projection
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    of entrance is 1.32 m in length and 32.5 cm projected towards
    east.‖ (Emphasis supplied)
    The report infers the existence of a pranala to drain out water, ―obviously after the
    abhisheka of the deity which is not present in the shrine now‖. The brick shrine
    which has been found as a result of the excavation is stated to be similar to the
    findings of the excavation carried out by ASI at Sravasti and at Rewa. On a
    comparative analysis, ASI has inferred that the circular shrine can be dated to
    circa tenth century A.D.
    Summary of results
  7. A Summary of results is contained in Chapter X of the ASI report. The
    results of the excavation are extracted below:
    ―The Northern Black Polished Ware (NBPW) using people
    were the first to occupy the disputed site at Ayodhya during
    the first millennium B.C. Although no structural activities were
    encountered in the limited area probed, the material culture is
    represented by terracotta figurines of female deities showing
    archaic features, beads of terracotta and glass, wheels and
    fragments of votive tanks etc. The ceramic industry has the
    collection NBPW, the main diagnostic trait of the period
    besides the grey, black slipped and red wares. A round signet
    with legend in Asokan Brahmi is another important find of this
    level. On the basis of material equipment and 14 C dates this
    period may be assigned to circa 1000 B.C. to 300 B.C.
    The Sunga horizon (second-first century B.C.) comes to the
    next in the order of the cultural occupation at the site. The
    typical terracotta mother goddess, human and animal
    figurines, beads, hairpin engraver etc. represent the cultural
    matrix of the level. The pottery collection includes black
    slipped, red and grey wares etc. The stone and brick structure
    found from the level mark the beginning of the structural
    activity at the site.
    The Kushan period (first to third century A.D) followed the
    Sunga occupation. Terracotta human and animal figurines,
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    fragments of votive tanks, beads, antimony rod, hair pin,
    bangle fragments and ceramic industry comprising red ware
    represent the typical Kushan occupation at the site. Another
    important feature of this period is the creation of large sized
    structures as witnessed by the massive structure running into
    twenty-two courses.
    The advent of Guptas (fourth to sixth century A.D) did not
    bring any qualitative change in building activity although the
    period is known for its classical artistic elements. However,
    this aspect is represented by the typical terracotta figurines
    and a copper coin with the legend Sri Chandra (Gupta) and
    illustrative potsherds.
    During the Post-Gupta-Rajput period (seventh to tenth
    century A.D.) too the site has witnessed structural activity
    mainly constructed of burnt bricks. However, among the
    exposed structures, there stands a circular brick shrine which
    speaks of its functional utility for the first time. To recapitulate
    quickly, exteriorly on plan, it is circular whereas internally
    squarish with an entrance from the east. Though the structure
    is damaged, the northern wall still retains a
    provision pranala, i.e. waterchute which is a distinct feature
    of contemporary temples already known from the GangaYamuna plain.
    Subsequently, during the early medieval period (eleventhtwelfth century A.D.) a huge structure nearly 50 …north-south
    orientation was constructed which seems to have been short
    lived, as only four of the fifty pillar bases exposed during the
    excavation belong to this level with a brick crush floor. On the
    remains of the above structure was constructed a massive
    structure with at least three structural phases and three
    successive floors attached with it. The architectural members
    of the earlier short lived massive structure with …and other
    decorative motifs were reused in the construction of the
    monumental structure having a huge pillared hall (or two
    halls) which is different from residential structures, providing
    sufficient evidence of a construction of public usage which
    remained under existence for a long time during the period VII
    (Medieval-Sultanate level – twelfth to sixteenth century A.D.).
    It was over the top of this construction during the early
    sixteenth century, the disputed structure was
    constructed directly resting over it. There is sufficient
    proof of existence of a massive and monumental
    structure having a minimum dimension of 50×30 m in
    north-south and east-west directions respectively just
    below the disputed structure. In course of present
    excavations nearly 50 pillar bases with brick bat
    foundation, below calcrete blocks topped by sandstone
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    blocks were found. The pillar bases exposed during the
    present excavation in northern and southern areas also
    give an idea of length of the massive wall of the earlier
    construction with which they are associated and which
    might have been originally around 60 m (of which the 50
    m length is available at present). The centre of the central
    chamber of the disputed structure falls just over the
    central point of the length of the massive wall of the
    preceding period which could not be excavated due to
    presence of Ram Lala at the spot in the make-shift
    structure. This area is roughly 15x15m on the raised
    platform. Towards east of this central point a circular
    depression with projection on the west cut into the large sized
    brick pavement signify the place where some important object
    was placed. Terracotta lamps from the various trenches and
    found in a group in the levels of Periods VII in trench G2 are
    associated with the structural phase.
    In the last phase of the period VII glazed ware shreds make
    their appearance and continue in the succeeding levels of the
    next periods where they are accompanied by glazed tiles
    which were probably used in the original construction of the
    disputed structure. Similarly is the case of celadon and
    porcelain shreds recovered in a very less quantity they come
    from the secondary context. Animal bones have been
    recovered from various levels of different periods, but skeletal
    remains noticed in the trenches in northern and southern
    areas belong to the Period IX as the grave pits have been
    found cut into the deposition coeval with the late disputed
    structures and are sealed by the top deposit.
    In the meanwhile to observe that the various structures
    exposed right from the Sunga to Gupta period do not speak
    either about their nature or functional utility as no evidence
    has come to approbate them. Another noteworthy feature is
    that it was only during and after Period IV (Gupta level)
    onwards upto Period IX (late and post Mughal level) that the
    regular habitational deposits disappear in the concerned
    levels and the structural phases are associated with either
    structural debris or filling material taken out from the adjoining
    area to level the ground for construction purpose. As a result
    of which much of the earlier material in the form of potter,
    terracottas and other objects of preceding periods, particularly
    of Period 1 (NBPW level) and Period III (Kushan level) are
    found in the deposits of later periods mixed along with their
    contemporary material. The area below the disputed site
    thus remained a place for public use for a long time till
    the Period VIII (Mughal level) when the disputed structure
    was built which was confined to a limited area and
    population settled around it as evidenced by the increase
    in contemporary archaeological material including
    pottery. The same is further attested by the conspicuous
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    absence of habitational structures such as housecomplexes, soakage pits, soakage jars, ring wells, drains,
    wells, hearths, kilns or furnaces etc from Period IV
    (Gupta level) onwards and in particular from Period VI
    (Early Medieval-Rajput level) and Period VII (MedievalSultanate level).‖ (Emphasis supplied)
    In regard to the dating of the findings, the report indicates that the earlier human
    activities trace back to thirteenth century B.C.:
    ―…earliest remains may belong to the thirteenth century B.C.
    which is confirmed by two more consistent C14 FROM THE
    NBPW level (Period I), viz. 910 = 100 B.C. and 880 = 100
    B.C). These dates are from trench G7. Four more dates from
    the upper deposit though showing presence of NBPW and
    associated pottery are determined by Radio-Carbon dating as
    780=80 B.C., 710=90 B.C., 530=70 B.C. and 320=80 B.C. In
    the light of the above dates in association with the Northern
    Black Polished Ware (NBPW) which is general accepted to
    be between circa 600 B.C. to 300 B.C. it can be pushed back
    to circa 1000 B.C. and even if a solitary date, three centuries
    earlier is not associated with NBPW, the human activity at the
    site dates back to circa thirteenth century B.C. on the basis of
    the scientific dating method providing the only archaeological
    evidence of such an early date of the occupation of the site.‖
    Finally, the ASI concludes by indicating that:
    ―Now, viewing in totality and taking into account the
    archaeological evidence of a massive structure just
    below the disputed structure and evidence of continuity
    in structural phases from the tenth century onwards upto
    the construction of the disputed structure along with the
    yield of stone and decorated bricks as well as mutilated
    sculpture of divine couple and carved architectural
    members including foliage patters, amalaka, kapotapali
    doorjamb with semi-circular pilaster, broken octagonal
    shaft of black schist pillar, lotus motif, circular shrine
    having pranala (waterchute) in the north, fifty pillar bases
    in association of the huge structure, are indicative of
    remains which are distinctive features found associated
    with the temples of north India.‖
    (Emphasis supplied)
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  8. Numerous objections have been urged to the ASI report and will be
    considered. The report indicates that the post Gupta period commencing from the
    seventh to the tenth century A.D. witnessed significant structural activity at the
    site. The report states that this activity has uncovered the existence of a circular
    brick shrine with a circular exterior with an entrance from the east. ASI has
    concluded that the northern wall of the shrine contains a pranala, i.e. a water
    chute, which it opined to be a distinctive feature of temples in the plains of the
    Ganges – Yamuna. The report noted that excavation pertaining to the eleventh–
    twelfth century A.D. has revealed the existence of ―a huge structure‖ with a
    dimension of 50 meters by 30 meters. This activity during the early medieval
    period of the eleventh and twelfth century A.D. reveals the existence of nearly
    fifty pillar bases. The report notes that on the remains of the above structure,
    there was a massive structure constructed with at least three structural phases
    and three successive floors attached with it. The architectural features of the
    early structure including its decorative motifs were revised in the construction of a
    ―monumental structure‖ with a large pillared wall indicating evidence of a
    construction for public use. The report notes that the construction of the disputed
    structure during the early sixteenth century is found to have rested directly above
    the earlier structure and that the centre of the central chamber of the disputed
    structure is stated to fall over the central point of the length of the massive wall of
    the preceding period.
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    526
    Findings of the High Court on the ASI report
  9. During the course of his judgment, Justice S U Khan did not place any
    reliance on the ASI report. The learned judge offered the following explanation:
    ―Conclusions of A.S.I. Report 2003, already quoted, are not of
    much help in this regard for two reasons. Firstly, the
    conclusion that there is ‗evidence of continuity in structural
    phases from the tenth century onward upto the construction
    of the disputed structure‘ is directly in conflict with the
    pleadings, gazetteers and history books. Neither it has been
    pleaded by any party nor mentioned in any gazetteer or most
    of the history books that after construction of temples by
    Vikramaditya in first Century B.C. (or third or fourth century
    A.D., according to some) and till the construction of the
    mosque in question around 1528 A.D. any construction
    activity was carried out at the site of the premises in dispute
    or around that. Secondly, in case some temple had been
    demolished for constructing the mosque then the
    superstructure material of the temple would not have gone
    inside the ground. It should have been either reused or
    removed. No learned counsel appearing for any of the Hindu
    parties has been able to explain this position.‖
    The first reason which weighed with Justice S U Khan was that it had not been
    pleaded by any of the parties that after the construction of a temple in the first
    century B.C. (or third or fourth centuries A.D.) until the construction of the
    mosque in the sixteenth century, any construction had been carried out at the
    site. The case of the plaintiffs in Suit 5 is that the disputed structure of a mosque
    was constructed after the demolition of a temple and that the mosque was
    constructed at the site of the demolished temple. The purpose of the excavation
    which was ordered by the High Court was to enable the court to have the benefit
    of a scientific investigation by ASI. It was on the basis of this excavation that the
    court would be apprised of the findings reached by ASI. To attribute to parties an
    act of default in their pleadings is inappropriate for the reason that the
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    archaeological evidence which came before the court was as a result of the
    excavation which was carried out by the ASI. Having ordered the excavation, it
    was necessary for the High Court during the course of the trial to evaluate those
    findings. Justice S U Khan did not do so. The second reason which has weighed
    with the learned judge proceeds on the basis of a conjecture. Justice S U Khan
    held that it is not conceivable that Babur or Aurangzeb would have ensured prior
    research to ascertain the exact birth-place of Lord Ram and then have a temple
    constructed at the site. The purpose of the excavation was to enable the court to
    determine as to whether the excavation at the disputed site suggested the
    existence of prior structural activity over centuries and, if so, whether any part of
    it was of a religious nature. Justice S U Khan has omitted to assess both the
    finding of the ASI of a circular shrine and a construction partaking of a publicly
    used structure on the foundations of which the disputed structure rested and its
    probative value in the present dispute.
  10. Justice Sudhir Agarwal observed during the course of his judgment that
    certain undisputed facts emerge from the excavations. These were catalogued as
    follows:

―(i) A lot of structural and construction activities existed at
the disputed site going back to the level of Shunga and
Kushan period.
(i) The exact number of floors, pillar bases and walls
(were) noted by ASI though objected but the very existence of
several floors, walls, and pillar bases beneath the disputed
stricture is not disputed.
(ii) The structure below the disputed structure was
sought to be explained as Kanati mosque or Idgah. There is
no suggestion that the structure below the disputed building
was of non-religious nature.
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(iii) Some of the constructions or artefacts are sought to
relate to Jains or Buddhist but here also it is not the case that
it was Islamic in nature or non-religious.
(iv) Though allegations of lack of independence in
professional style etc. is sought to be supported from the
alleged misinterpretation or wrong interpretation or omission
or contradictions and discrepancies in some part of the report
but no one of ASI team, individual or group has been named
or shown to have worked in a manner lacking integrity,
independence etc. (except where two nominees of Muslim
side i.e. Dr. Jaya Menon (PW 29) and Dr. Supriya Verma (PW
32) reported creation of pillar bases in Trench G2 vide
complaints dated 21.5.2003 and 7.6.2003).‖
Initially, the case of the Sunni Central Waqf Board was that the building in dispute
was constructed at a place on which there was no existence of a Hindu religious
structure and there was no evidence to suggest that the structure was at the
place which Hindus believe to be the birth-place of Lord Ram. Justice Agarwal
noted that when the excavation progressed there was a marked change in the
approach of the plaintiffs in Suit 4 and a new case was sought to be set up that
the structure below the disputed structure as shown in the excavation is of
Islamic origin namely, either an ‗Idgah‘ or ‗a Kanati Masjid‘. Justice Agarwal noted
that this shift in stance of the Muslim parties clearly excluded the possibility that
the structure which was found below the disputed structure was of an origin
which is not religious. The enquiry then narrowed down to whether the structure
was Islamic or non-Islamic in nature. The learned judge concluded that:
―3905. It is clear from the report that floor 4 which supports
the foundation of pillar bases was a floor of a Temple. It
cannot be the floor of Idgah or Kanati Mosque because pillars
are always absent in Idgah so that maximum persons could
be accommodated in minimum space for offering prayer.‖
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529

  1. Justice Agarwal noted that the existence of a circular shrine with its
    attendant architectural features likely indicated the presence of a Shaivite shrine
    and that it was not a Muslim tomb. He observed that while on the one hand, the
    dimensions of the structure were too small for a tomb, a gargoyle would never
    find presence in a tomb but was an integral feature of the sanctum of a Shiva
    temple to drain out water poured on the Shivalingam. In that context, after
    analysing the evidence, Justice Agarwal observed that PWs 29, 31 and 32 who
    were the witnesses of the plaintiffs in Suit 4 accepted that the features which
    were found in the excavated shrine were of a non-Islamic origin. The evidence of
    PWs 29, 31 and 32, insofar as is relevant is extracted below:
    (A) Dr Jaya Menon (PW-29)
    ―The motif of Ghat (pot) is visible on this pillar. It is true that
    Ghat is also known to be as ―Kalash‖. Normally, this kind of
    ‗Ghat‘ on the pillar is not found in mosque.
    It is correct to say that the figurines of elephant, tortoise and
    crocodile – all made of terracotta, were recovered during the
    excavation. Such figurines were found in more than one
    trench. I know that the crocodile is the seat/vehicle of Hindu
    holy river Ganga. I agree that tortoise is the vehicle of holy
    river Yamuna.‖

(B) Dr Ashok Dutta (PW 31)
―As I have mentioned that the Muslim people do not believe in
the idol worship, hence there is no question of associating
terracotta figurine with the Muslim culture. So far I know and
my knowledge goes, the question of terracotta figurine to be
associated with Muslim culture does not arise‖.
―It is true that such animal figurines are not allowed to be kept
in the mosque.‖
―Makar Pranal is one of the parts of the Hindu temple
architecture. I am not very sure whether Makar Pranal has
any association with mosque or not. I have not seen any
mosque having any Makar Pranal in it.‖
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530
(C) Dr Supriya Verma (PW-32)
―I have heard the word ‗Kalash‘. Kalash is not found in
mosque…‖
―Wall No. 16, according to me, was used as a wall prior to the
construction of the disputed structure. In this way, Wall 16
was wall of some other construction which was existing prior
to the constriction of the disputed structure.‖
―However, it is true that Wall No. 17 was constructed earlier to
Wall No. 16.‖
―I know crocodile. It is also very important for the temples. It is
called ‗Makar Mukh‘. I have not seen Makar Mukh in any
mosque…‖
Justice Agarwal observed:
―3979. The report of the Archaeological Survey of India, which
is a report of an expert in excavation, contains all the details
including details of stratigraphy, artefacts, periodisation as
well as details of structures and walls. The pillar bases
mentioned in the report establish beyond all doubt the
existence of a huge structure. In addition to above, existence
of circular shrine, stone slabs in walls with Hindu motifs and
more particularly sign of Makar Pranal in wall No. 5 (wall of
disputed structure), divine couple and other temple materials,
etc., conclusively proves the existence of a Hindu religious
structure beneath the disputed structure. It is generally
admitted by the witnesses that the excavation was conducted
as per settled norms of archaeology in presence of parties,
experts and observers and three dimensional recording,
photography, videography of each and every trench,
structure, artifacts, were done by the ASI during excavation in
presence of all concerned. Day-to-day register, supervisor’s
diary and antiquity register were being regularly maintained.

  1. There are some more objections which we find not
    much of worth for the reason that the experts of Muslim
    parties ultimately, realizing that structure existed underneath
    the disputed building made out a new case in their statement.
    However, a new stand which is not the case of the plaintiff,
    not pleaded is not permissible.‖
    One of the objections before the High Court was that the ASI report did not
    specifically answer whether there was any pre-existing structure which was
    demolished for the construction of a mosque and whether the pre-existing
    structure was a temple. Answering this objection, the High Court held:
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    531
    ―3990. ASI, in our view, has rightly refrained from recording a
    categorical finding whether there was any demolition or not
    for the reason when a building is constructed over another
    and that too hundreds of years back, it may sometimes be
    difficult to ascertain as to in what circumstances building was
    raised and whether the earlier building collapsed on its own or
    due to natural forces or for the reason attributable to some
    persons interested for its damage. Sufficient indication has
    been given by ASI that the building in dispute did not have its
    own foundation but it was raised on the existing walls. If a
    building would not have been existing before construction of
    the subsequent building, the builder might not have been able
    to use foundation of the erstwhile building without knowing its
    strength and capacity of bearing the load of new structure.
    The floor of the disputed building was just over the floor of
    earlier building. The existence of several pillar bases all show
    earlier existence of a sufficiently bigger structure, if not bigger
    than the disputed structure then not lesser than that also.‖
    After analysing the evidence, Justice Agarwal observed:
    ―4055. The ultimate inference, which can reasonably be
    drawn by this Court from the entire discussion and material
    noticed above, is: (i) The disputed structure was not raised on
    a virgin, vacant, unoccupied, open land. (ii) There existed a
    structure, if not much bigger then at least comparable or
    bigger than the disputed structure, at the site in dispute. (iii)
    The builder of the disputed structure knew the details of the
    erstwhile structure, its strength, capacity, the size of the walls
    etc. and therefore did not hesitate in using the walls etc.
    without any further improvement. (iv) The erstwhile structure
    was religious in nature and that too non-Islamic one. (v) The
    material like stone, pillars, bricks etc. of the erstwhile
    structure was used in raising the disputed structure. (vi) The
    artefacts recovered during excavation are mostly such as are
    non-Islamic i.e pertaining to Hindu religious places, even if we
    accept that some of the items are such which may be used in
    other religions also. Simultaneously no artefacts etc., which
    can be used only in Islamic religious place, has been found.‖
    Motifs on the Kasauti stone pillars
  2. Evidence was produced before the High Court of the motifs on the pillars in
    the disputed building. Three sets of albums containing photographs taken by the
    PART N
    532
    State Archaeological Department pursuant to an order dated 10 January 1990
    were produced. Dr Rakesh Tewari (OPW-14) who was the Director of the State
    Archaeological Department verified the photographs. The first album contained
    204 coloured photographs and was marked as paper no. 200 C1/1 -204. The
    second album contained 111 black and white photographs and was marked as
    paper no. 201C/1-111. The High Court annexed the photographs as Appendices
    5(A) to 5(DD) of its judgment. The photographs contain depictions of the black
    Kasauti stone pillars. Several of the witnesses on behalf of the plaintiff in Suit 4
    deposed during the course of their evidence in regard to these photographs.
    Relevant extracts from the deposition of Farooq Ahmad (PW-3) have been reproduced in the judgment of Justice Sudhir Agarwal. Extracts from the testimony
    are quoted below:
    Farooq Ahmad (PW-3):
    ―Idols are visible in photograph no. 57, which were not
    present at that time. This photograph is also of the disputed
    property but it is possible that it may have been changed
    because at that time there were no idols over the pillars. An
    idol is visible in the upper part of photograph no. 58 as well.
    There was a black pillar at the gate, which did not have any
    idol and it is possible that it may have been changed
    subsequently…It is only after looking at the photograph that I
    am stating that the pillars may have been changed. These
    pillars have idols on their top and it is only after looking at
    them that I am stating that these pillars have been changed.‖
    ―In photograph no. 62 there is a pillar like structure near the
    grill, which has idols. This pillar is at the northern gate of the
    disputed property… It is visible in white color in photograph
    no. 64 as well, and the idols are also visible…The photograph
    no. 65 is of the main gate. However, its pillar contained idols,
    which are result of change. The photograph no. 66 is also of
    the eastern side but it has idols, which are result of change.‖
    ―The photograph no. 72 does contain black pillars but it has
    idols in upper and lower part… Similar is the position of the
    two pillars of photograph no. 71. Same is with the pillar shown
    in photograph on. 73. It also contains idols. The photograph
    PART N
    533
    no. 74 is also similar, which has idols over pillars. This pillar
    has been shown completely from all sides, which had been
    fixed over there.‖
    ―The photograph no. 101 is also of that place, but many
    changes have been made therein. The idols are also existing
    and the pitchers (Kalash) are also existing.‖
    ―It is true that all the photographs contained in this album, had
    been taken in the presence of my counsel. All these
    photographs are of the disputed land and property.‖
    There were witnesses who deposed on behalf of the contesting Hindu parties.
    They also spoke about the idols depicted in the photographs of the pillars. These
    idols include depictions of Gods and Goddesses worshipped by Hindus such as
    Hanuman, Narsimha, Ganesh and Durga. The witnesses have also deposed
    about the images of a peacock, garuda and lotus. The witnesses who deposed in
    this regard on behalf of the Hindu parties were DW-3/5-1-2, 17/1, B/1-1, 17/1,
    20/1 and 12/1.
    Coupled with the photographs is the fact that during the course of the excavation,
    62 human and 131 animal figurines were found by the ASI. Justice Sudhir
    Agarwal noted that it was not in dispute that no Islamic religious artefacts were
    found during the excavation, while artefacts pertaining to a Hindu religious origin
    were found in abundance. Among them, as the learned Judge noted, were motifs
    of flowers (plates nos 51 and 62); the hood of a cobra (plate no. 129) and those
    pertaining to other Gods and Goddesses in human shape (plate nos 104-112,
    114-116, 118-123 and 125-126). The witnesses who supported the findings and
    report of the ASI were Dr R Nagaswami (OPW- 17), Arun Kumar (OPW – 18) and
    Rakesh Dutt Trivedi (OPW-19).
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    Objections to the ASI report
  3. Ms Meenakshi Arora, learned Senior Counsel has prefaced her
    submissions by formulating the following objections to the ASI report:
    (i) The ASI report suffers from glaring errors and internal inconsistencies;
    (ii) The ASI report is only an opinion of an archaeologist in view of Section 45
    of the Evidence Act 1872; and
    (iii) Archaeology is an inferential science which renders the report a weak
    account of evidence.
    Elaborating the third submission, Ms Arora submitted that archaeology is a social
    science as distinct from a natural science. Archaeology, in her submission, is not
    precise or exact as distinguished from the natural sciences which are based on
    verifiable hypotheses. Archaeology, the learned Senior Counsel urged, is based
    on drawing inferences in the context of what is found in the course of excavation
    and does not yield verifiable conclusions.
    Ms Arora urged the following additional objections with respect to the ASI report:
    (i) No witness was called to prove the ASI report;
    (ii) No finding has been recorded by the ASI on whether there was a preexisting temple which was demolished for the construction of a mosque;
    (iii) The Summary of results recorded in the conclusion of the report is not
    attributed to any specific author unlike the individual chapters; and
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    (iv) The report does not indicate whether any meetings were held between the
    members of the team responsible for undertaking the excavation activity. If
    they did, the notes of the team meeting should have been furnished.

Subsequently, during the course of his submissions on the scope of the
challenge to the report, Dr Rajeev Dhavan, learned Senior Counsel appearing for
the plaintiffs in Suit 4 submitted that whether the Summary of results has been
signed is a futile line of enquiry because it only goes to the authenticity and
authorship of the report. Dr Dhavan fairly submitted that the authorship of the ASI
report cannot be questioned since there is no dispute that it is attributed to the
ASI and was submitted in pursuance of the directions of the High Court. In view
of the submission, the doubt raised earlier by Ms Arora on the authorship of the
Summary of results is set at rest. The report has been co-authored by B R Mani
and Hari Manjhi. The report emanates from the ASI to whom the task was
entrusted by the High Court. There being no dispute about the authorship, origin
or authenticity of the report, we find no substance in the objection that was raised
by Ms Arora on that count.
Merits of the objections

  1. The objections which have been addressed against the ASI report by Ms
    Arora, learned Senior Counsel have been elaborated in Volume A-91 of the
    written submissions titled as ―Stratigraphy / Periodisation, Pillar Bases, Walls,
    Circular Shrine, Divine Couple & Other Artefacts, Glazed Ware & Glazed
    Tiles; Animal Bones‖. The preliminary submissions are:
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    (i) ASI did not properly mark the soil layers on excavation;
    (ii) ASI failed to maintain accurate records of the recovery of artefacts from
    specific layers and lost the context;
    (iii) Though, the bones found in excavation could have been subjected to
    carbon dating and Paleo-Botanical studies to arrive at better estimates of
    chronology, only charcoal samples were sent for carbon dating;
    (iv) Though, ASI had assured the High Court in its interim report that it would
    collect samples of soil and mortar (for carbon dating), pottery (for
    thermoluminescence), grains and pollen (for paleo-botanical studies) and
    bones (for study of faunal remains), this was not done;
    (v) The High Court had issued directions to the ASI to maintain a register for
    accurate recording of recovery of artefacts from each layer; and
    (vi) ASI prepared and submitted its report in 15 days in a hurried manner.
  2. ASI had to conduct a complex exercise. Its excavation was time bound.
    The excavating team had to work its way around a make-shift temple without
    affecting the worship of the deity. The trenches had to be arranged with care. The
    difficulties which ASI encountered were numerous. Its team excavated in the
    glare of publicity, in the presence of parties or their representatives. The report
    notes the unusual circumstances which it faced in the course of the excavation:
    ―a. In planning the excavation, it was decided to adopt
    the latest technique of layout of trenches where limited
    spaces are available and therefore in place of general
    practice of layout of 10 x 10m. squares divided four quadrants
    of 4.25×4.25m
    b. On the directions of the Hon‘ble High Court,
    Archaeological Survey of India has excavated ninety trenches
    in a limited time of five months soon after which the
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    excavation report is required to be submitted within fifteen
    days. This is an unprecedented event in the history of one
    hundred and forty two years of the existence of the Survey
    c. …Thus the time available for their documentation, study
    photography, drawing and chemical preservations was limited
    to just a few hours only and that too not in the case of
    material recovered from the trenches towards closing of the
    work for the day…Work was often affected and delayed due
    to formalities involved in security checks and such other
    administrative requirements…
    d. Working condition worsened at the onslaught of the
    monsoon from June onwards when the entire site was
    covered with multi-colored waterproof streets creating heat
    and humidity besides total darkness in a number of deep
    trenches. Monkeys started damaging the sheets as a result of
    which several layers of the sheets were spread over bamboo
    and wooden poles. They created further darkness…Much
    difficulty was felt for the stratigraphical observation
    particularly for determining layers. These factors slowed the
    process of ongoing work.‖
    Ms Arora urges that these difficulties led to errors. The manner in which ASI
    carried out ―stratigraphy-periodisation‖ was questioned before the High Court.
    Justice Sudhir Agarwal while rejecting the objections observed:
    ―3846. From the statement of the six expert witnesses
    produced on behalf of plaintiff (Suit-4), we find that all of them
    are not unanimous in saying that the entire stratigraphy or
    periodization made by ASI is bad or incorrect or suffers with
    such material illegality or irregularity that the same deserves
    to be rejected, which… ultimately may result in rejection of
    the entire report itself. Their statements are also
    contradictory, vague, confused and based on…conjectures.
    3863… On the contrary, most of them admit that
    determination of stratigraphy/chronology can be done in one
    or more method which are well recognized and they are… (1)
    dynasty wise, (2) century wise and (3) layer wise, and the ASI
    has followed all the three systems.‖
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    The High Court observed:
    ―3979. The report of the Archaeological Survey of India, which
    is a report of an expert in excavation, contains all the details
    including details of stratigraphy, artifacts, periodisation as well
    as details of structures and walls.‖
  3. In the course of analysing the ASI report, it is important to bear in mind the
    criticism levelled on the methodology adopted by and the findings recorded by
    ASI. Taking them into consideration will be an important evaluative technique for
    this Court to deduce whether the objections, if found to be valid, are of such a
    nature as would detract wholly from the utility of the report. Alternatively, this
    Court may have to consider a more nuanced perspective under which the
    deficiencies shown to exist in the report can lead to a realistic assessment of the
    conclusions based on probability, relevance and inconsistency. The judgment
    must deal with the basic question whether the findings of ASI have relevance to
    the determination of title.
  4. Ms Arora has highlighted the oral testimony of R C Thakran (PW- 30), who
    assailed the ASI report. PW – 30 noted that periods VI to VII of Chapter III titled
    ―Stratigraphy and Chronology‖ were subsequently altered in the ‗Summary of
    results‘. Initially at pages 38 to 41 of the report, the nomenclature of periods V, VI
    and VII is as follows:
    ―Period V : Post-Gupta-Rajput, 7th to 10th Century
    Period VI: Medieval – Sultanate, 11th
    -12th Century
    Period VII: Medieval, 12th to 16th Century.‖
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    PW-30, however draws attention to the fact that in the Summary of results the
    above nomenclature is revised to read as follows :
    ―Period V : Post-Gupta-Rajput, 7th
    -10th century
    Period VI: Early medieval, 11th
    -12th century
    Period VII: Medieval-Sultanate, 12th
    -16th century.‖
    The above inconsistency which has been highlighted carefully by Ms Arora must
    be borne in mind.
    According to PW-30, the transfer of the Medieval – Sultanate period from period
    VI to VII has ―the advantage‖ of ignoring Islamic period materials like glazed ware
    or lime-mortar by removing them arbitrarily from period VI levels to those of
    period VII so that their actual presence in those levels does not pose a challenge
    to ASI in placing the construction of an alleged ―massive‖ or ―huge‖ temple in
    period VI.
    On the aspect of ‗periodisation-stratification‘, Jayanti Prasad Srivastav (DW-20/5)
    who was formerly a Superintending Archaeologist with ASI stated:
    ―…However I agree with the opinion of the ASI, which is
    mentioned in the chart prepared by them at page 37-A, where
    they have assigned floor 4 and 5 to the early Medieval
    Sultanate period. On page 37-A in the chart the ASI has
    mentioned early Medieval Sultanate period whereas at page
    40 they have mentioned Medieval period. To my mind it
    appears that there is difference between the two, but I cannot
    clarify the same.
    Q. Is it correct to say that the term ―early Medieval
    Sultanate‖ period indicated by light green colour in the chart
    at page 37-A is no other period than the period described as
    period VI (Medieval Sultanate level) of 11th
    – 12th Century on
    page 40 of ASI report, Vol. I
    A. Since the term ―early Medieval‖ has got a definite
    meaning in the chronological sense, I cannot equate it
    with Medieval-Sultanate level lightly, hence the
    excavators, who got this chart prepared are required to
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    clarify the situation before any conclusion is drawn by
    us.‖ (Emphasis supplied)
    The highlighted excerpts from the answer of the witness emphasise the
    importance of a clarification being sought from the ASI on the classification which
    it adopted. This precisely is one of the difficulties which the objectors must
    confront. If a clarification was necessary (as the witness acknowledges), it was
    but appropriate that under Order XXVI Rule 10(2), a request should have been
    addressed to the court for the examination of an appropriate witness from ASI.
    This was not done.
    Objections as to Pillar bases
  5. The ASI report states that:
    ―From the excavation it could be inferred that there were
    seventeen rows of pillars from north to south, each row
    having five pillar bases.‖
    On the other hand it admits that: ―Out of excavated fifty pillar
    bases only twelve were completely exposed, thirty five were
    partially exposed and three could be traced in sections only.
    A few pillar bases were noticed during earlier excavation after
    which a controversy took place about their association with
    different layers and their load bearing capacity.‖
    Ms Arora submitted that the so-called pillar bases could not either have formed a
    part of or supported the alleged massive structure /temple as claimed by the ASI
    for the following reasons:
    (i) During the excavation, the ASI identified different layers belonging to
    different periods. Within the different layers, it identified the presence of
    four different floors which are marked by the existence or presence of
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    541
    clearly demarcated floors of lime-surkhi or surkhi. Admittedly, the floors are
    at different levels, floor 1 being the level of the demolished mosque and
    floors 2, 3 and 4 being below it at different levels as is illustrated in the
    report. Given that the alleged pillar bases have been found in different
    floors or cutting through different floors, it is evident that these pillar bases
    have been constructed at different time periods. Hence, the so-called pillar
    bases could not have contemporaneously formed part of a single structure,
    let alone a purportedly massive structure;
    (ii) There are discrepancies and variations in the number of alleged pillar
    bases found on different floors in different parts of the ASI Report. The
    isometric view in Figure 23A contains a number of imagined or conjectured
    pillar bases which have not even been exposed. Therefore, the claim of a
    massive structure is an unfounded hypothesis as the exact number of pillar
    bases is not known;
    (iii) In any case, the so-called pillar bases are not in alignment as revealed
    from actual measurements and distances (admitted by DW-20/5 and
    OPW-17, expert witnesses who deposed in s