13

began to cry. Those who sing this lay (says

Tulsidasa) attain to the abode of Sri hari and never
fall into the well of mundane existence.
(Sri Ramacharitamanasa/Bala-kanda/191/1-4)
For the sake of Brahmans, cows, gods and saints,
the Lord who transcends Maya and is beyond the
three modes of Prakrti (Sattva, Rajas and Tamas) as
well as beyond the reach of senses took birth as a
man assuming a form which is a product of His own
will.
(Sri Ramacharitamanasa/ Bala-kanda /192)
11. Sri Golapchandra Sarkar, Sastri in his celebrated Treatise on
Hindu Law (first published in 1897) also approves the belief
of the The Hindus that their Gods did not borne like human
beings as follows:
the Idea that their Gods are deemed born like
human beings ,-is most repugnant and abhorrent to
The Hindus who have knowledge of their Shastras.
(A Treatise On Hindu Law. 6
th
edn.1927 Cha.XIV
Page 785)
12.The Holy Scripture Simad Valmiki Ramayana reveals that
there was a temple of Lord of Universe Sri Janardan i.e. Sri
Vishnu in the Mother Kausalyas Palace as follows:
Entering in his own palace in order to break the
news of the installation announced by the emperor
(to Sita), but coming out instantly on not finding her
in the apartments) he moved to his mothers
apartment (in the gynaeceum). There he saw his
aforesaid mother clad in silken robes, exclusively
devoted to the worship of her chosen deity Praying
for royal fortune (in favour of Sri Rama) Hearing of
Sri Ramas welcome installation, Sumitra too had
arrived as well as (her Son) Lakshman; and Sita
(too) had been sent for (there). At that moment when
(Sri Rama called on her) Kausalya remained sitting
with her eyes closed and waited upon by Sumitra
and Lakshman, and contemplating with suspended
breath on the Supreme Person, Lord Narayana (who
14
is solicited by all men), having heard that her son
was going to be installed in the office of Prince
Regent when the asterism Pusya was in the
ascendant.
(Valmiki Ramayana/1/ IV/29-33)
13.Srimad Skandpuranam (II.VIII.10. 1 87) enumerates Sarayu
(a river), Vishnuhari, Brahmkunda (a Holy Lake),
Mantresvara, Chakratirtha (tirtha of holy water), Chakrahari,
Dharmahari, Vira, Surasa, Bandi, Sitala, Batuka, Holy-lake in
front of Batuka, Mahavidya, Pindaraka, Bhairava,
Vighnesvara, Vasistha, Laumas and Janamsthan of Lord of
Universe Sri Ram as Tirthas and Devasthanam of Ayodhya
and right from the Tretayuga these sacred places are being
visited and worshiped according to Scriptural customary
rituals. .
14.Srimsad Skandpuranam [Part VII inner Page 142 i.e. ibid
II.VIII......26 31& ibid II.10.VIII.1-87] reveals that the
Tradition of Pilgrimage to the Birth Place of the Lord of
Universe Sri Ram as well as other Devasthanam in Ayodhya
according to injunctions was told by sage Narada to Sri
Skand. This Sage Narada was of Tretayug and contemporary
of the Lord of universe Sri Ram on whose instance Maharshi
Valmiki wrote Ramayana. Then it was narrated to Sage
Agastya. From the Tradition of Acharyas it came down from
Sage Agastya to Sage Krishna Dviapayan Vyas who recounted
it to Suta.
15
15.The Sacred Religious Book of the Hindus Sri
Ramcharitmanas records celebration of Birthday Festival of
the Lord of Universe Sri Ram in the year 1574 A.D. on the
day of Chaitra Shukla Navami Tuesday at His Birth Place
Temple in Ayodhya as follows:
Reverently bowing my head to Lord Siva, I now
proceed to recount the fair virtues of Sri Rama.
Placing my head on the feet of Sri Hari I commence
this story in the Samvat year 1631 (1574 A.D.). On
Tuesday, the ninth of the lunar month of Caitra, this
story shed its luster at Ayodhya. On this day of Sri
Ramas birth the presiding spirits of all holy places
flock there so declares the Vedas and demons,
Nagas, birds, human beings, sages and Gods come
and pay their homage to the Lord of Raghus. Wise
men celebrate the great birthday festival and sing the
sweet glory of Sri Rama.
(Sri Ramcharitamanasa /Balkanda 33.2-4)
16.Bharat-Ratna Mahamahopadhyay Dr. Pandurang Vaman
Kane in his book Dharmashastra Ka Itihas Tritiya Bhag (3rd
Edn. 1994 published by Uttar Pradesh Hindi Sansthan,
Lucknow) in chapter 11 has summarised tradition,
importance, spiritual merits, of the sacred places of the The
Hindus as laid down in the Divine Holy Vedas, Smritis,
Puranas, Ramayana, Mahabharata and other Religious books
which make it crystal clear that The Pilgrimage is integral
part of Hinduism. Relevant pages thereof forms part of
volume I of the compilation of this defendant as document
no. 19. On inner page 1371 of the said book relevant Slokes
of the Holy Scriptures - Sri Brahmand Puran (4.40.91); Sri
16
Skand Puran(Kashikhand 6.68 & 23.7); Sri Garud Puran
(Pretkhand 34.5-6) have been reproduced wherein amongst
seven Holiest Pilgrimage Centres Ayodhya has been
enumerated alongwith Mathura, Maya (Hardwar), Kashi
(Varanasi), Kanchi, Avantika (Ujjain) and Dwaravati
(Dwarka). On inner page 1403 of the said book in the list of
Sacred Places Ayodhya has also been enlisted and described.
17.In the book Bharat Ka Gazetteer, Khand 1 (published by the
Publication Division Ministry of Information and
Broadcasting Government of India reprint 1973 of the 1
st
revised Edn. 1964) on its page 499 Sri Ramchandra have
been described as an incarnation and on pages 698 to 701
festivals, fairs and pilgrimages have been described and
recognised as age-old tradition of the Hindu faith and belief.
18.Three-domed Temples are characteristic features of the Hindu
Architectures. The Holy Sri Agni Puran (38.8) says that one
who builds Trayatan (Three-domed) Temple goes to the
Brahm-lok (Abod of Almighty).
19. Ibn Battuta also mentions a Three-domed Hindu Temple in
Kachrad now known as Khajrawan towards 27 miles east from
Chhatrapur City in Bundelkhand region. He writes that the said
Three-domed Temple was built of red-stone in the centre of a lake
and Yogis were living therein. Eyes, ears and noses of the Idols of
the Temple had been mutilated by the Muslims. Relevant extract
17
from Pages 181 & 182 of the book Ibn Battuta Ki Bharat Yatra
translated into Hindi by Madan Gopal. First Edition 1933 Reprinted
in 1997 by National Book Trust India, New Delhi reads as follows:
Sri Hari Shanker Jain, Advocate on behalf of Hindu
Mahasabha has submitted that this historical issue relates to 500
years back for which there is no direct evidence and parties have
to depend on religious books, gazetteers and other testaments
which fall within the ambit of Section 57 (13) of Indian Evidence
Act and the Court can take judicial notice and the relevant facts
contained in gazetteers, religious books are admissible evidence
and they can be relied upon to establish the place of birth of Lord
Ram. He has placed reliance on AIR 1951 Supreme Court page 288
Sukh Deo Singh Vs. Mahraja Bahadur of Gidhaur. At para 10
Hon'ble the apex court held that gazetteer is an official document .
It is compiled by experienced official with great care after
18
obtaining the facts from official records.
Sri H.S. Jain has further relied on AIR 1995 Supreme Court
page 167Bala Shankar Maha Shankar Bhattajee Vs. Charity
Commissioner, Gujrat wherein Hon'ble Apex Court has held
gazetteer is admissible evidence under Section 35 read with
Section 81 of Indian Evidence Act. Thereafter Sri Jain has relied
over AIR 1967 Supreme Court 256 Mahant Shrinivas
Ramanuj Das Vs. Surajanarayn Das in para 25 that a gazetteer
can be consulted in the matter of public history and statement in
such gazetteer can be relied upon as they prove historical facts.
Sri Jain has further submitted that Section 57 of the Indian
Evidence Act inter alia says that the Court shall take judicial notice
of all laws, public acts, public festivals and public history and the
Court may resort for its aid to appropriate books and documents.
These papers require no proof. Thus, Court can take judicial notice
of the gazetteer and other religious books etc. under Section 57 of
the Indian Evidence Act and in view of Section 81 of the
Evidence Act the Court shall presume the genuineness of these
official gazetters.
Sri Jain submits that William Finch who travelled India in
the reign of Emperor Nuruddin Mohammad Jahangir from 1608
A.D. to 1611 A.D. saw the Hindus visiting the Birth Place of the
Lord Sri Ram Chandra in Ramkot where Brahmins used to note
down names of the visitors to that sacred place. Be it mentioned
19
herein that in each and every prominent sacred places of the
Hindus since time immemorial a class of Brahmins known as
Pandas have been helping the devotees to perform customary rites
as also noting down names of the devotees. As such presence of
Brahmin Pandas at Sri Ramjanmsthan during the visit of William
Finch is conclusive proof that Hindus were performing their
traditional customary rites as laid down in Sri Skanda Puran.
Relevant extract from page 176 of the book Early Travels in India
1583 1619 by William Foster reads as follows:
To Oudh [Ajodhya] from thence are 50c; a citie of
ancient note, and seate of a Polan king, now much
ruined; castle built foure hundred yeeres agoe.
Heere are also the ruines of Ranichand [S] castle and
houses, which the Indians acknowled[g]e for the
great God, saying that he tooke flesh upon him to
see the Tamasha of the World. In these ruines
remayne certaine Bramenes, who record the names
of all such Indians as wash themselves in the river
running thereby, which custome, they say hath
continued foure lackes of yeeres (which is three
hundred ninetie foure thousand five hundred yeeres
before the worlds creation). Some two miles on the
further side of the river is a cave of his with a narrow
entrance but so spacious and full of turnings within
that a man may well lose himselfe there, if he take
not better heed; where it is thought his ashes were
buried. Hither resort many from all parts of India,
which carry from hence in remembrance, certaine
grains of rice as blacke as gun-powder which they
say have been reserved ever since. Out of the ruines
of this castle is yet much gold tryed. Here is great
trade and such abundance of Indian asse-horne that
they make here of bucklers and divers sorts of
drinking cups. There are of these hornes, all the
Indian affirme, some rare of great price, no jewell
comparable, some esteeming them the right unicorns
horne.
(Early Travels in India 1583 1619 by William
Foster p.176).
20

1. In his book Description Historique Et Geographique De l
Inde, Joseph Tieffenthaler who visited Sri Ramjanmsthan in
the year 1770 A.D. during the reign of Emperor Shah Alam
II (1759-1806 A.D.) evidenced the performance of
customary rites by the Hindus in the central & left Halls of
the Sri Ramjanmsthan Temple, Ajodhya in India.
Tieffenthaler says that there was a Vedi i.e. Sthandil inside the
said Temple which was being worshipped by the Devotees by
prostrating and circumambulating it thrice, but he did not
mention offering of prayer therein by the Muslims; from the
said facts made available by an eye witness it becomes
crystal clear that in the 1770 the Hindus were in use and
occupation of the Sri Ramjanmsthan as their sacred shrine
which has been described as Babari Mosque by the plaintiffs
in their pleadings and it was not being used as a Mosque by
the Muslims. The said book is written in Latin language,
an English translation of his narrative of Ajodhya find place
in the book Modern Traveler, a Popular Description,
Geographical, Historical and Topographical of the Various
Country of the Globe India Vol-III published by James
Duncan in the year 1828. Relevant extracts containing
translation of Tieffenthalers account from pages 312, 313,
314, 316 and 317 read as follows:
Its appearance, in 1770, is thus described by Tieffen
21
theler: Avad, called Adjudea by the Learned
Hindoos is a city of the highest antiquity. Its houses
are, for the most part, only on mud, covered with
straw or with tiles; many, however, are of brick. The
principal street, running from S. to N., is about a
league (mille) in length; and the breadth of the city is
somewhat less. Its western part, as well as the
northern, is situated on a hill; the north-eastern
quarter rests upon eminences; but towards Bangla, it
is level. This town has now but a scanty population,
since the foundation of Bangla or Fesabad; a new
town where the Governor has established his
residence, and to which a great number of
inhabitants of Oude have removed. On the southern
bank of Deva (or Goggrah), are found various
buildings erected by the Gentoos in memory of Ram,
extending from east to west. The more remarkable
place is that which is called Sorgodoari, that is to
say, the heavenly temple; because they say, that Ram
carried away from thence to heaven all the
inhabitants of the city. The deserted town was
repeopled and restored to its former condition by
Bikaramajit, the famous King of Oojain. There was
a temple here on the high bank of the river; but
Aurangzebe, ever attentive to the propagation of the
faith of Mohammed, and holding the heathen in
abhorrence, caused it to be demolished, and replaced
it with a mosque with minarets, in order to abolish
the very memory of the Hindoo superstition.
Another mosque has been built by the Moors, to the
east of this. Near the Sargodoari in an edifice erected
by Nabalroy a former Hindoo governor. But a place
more particularly famous is that which is called
Sitha Rassoee, the table of Sitha (Seeta), wife of
Ram; situated on an eminence to the south of the
city. The emperor Aurangzebe demolished the
fortress called Ramcote, and erected on the site, a
Mohammedan temple with a triple dome. According
to others, it was erected by Baber. There are to be
seen fourteen columns of black stone, five spans in
height, which occupied the site of the fortress.
Twelve of these columns now support the interior
arcades of the mosque: the two other form part of the
tomb of a certain Moor. They tell us, that these
columns, or rather these remains of skilfully wrought
columns, were brought from Isle of Lanca or
Selendip (Ceylon) by Hanuman, king the of
monkeys. On the left is seen a square chest, raised,
22
five inches from the ground covered with lime,
about 5 ells in length by not more than four in
breadth. The Hindoos call it Bedi, the cradle; and
the reason is, that there formerly stood here the
house in which Beshan (Vishnoo) was born in the
form of Ram and were also, they say, his three
brothers were born. Afterwards, Aurangzebe, or,
according to others, Baber, caused the place to be
destroyed, in order to deprive the heathen of the
opportunity of practicing there their superstitions.
Nevertheless, they still pay a superstitious reverence
to both these places; namely, to that on which the
natal dwelling of Ram stood, by going three times
round it, prostrate on the earth. The two places are
surrounded with a low wall adorned with
battlements. Not far from this is a place where they
dig up grains of black rice changed into little stones,
which are affirmed to have been hidden underground
ever since the time of Ram. On the 24
th
of the month
Tshet (Choitru), a large concourse of people
celebrate here the birth-day of Ram, so famous
throughout India. This vast city is only a mile
distant from Bangla (Fyzabad) towards the E.N.E.
(Ibid. 312-314)
Between three and four miles from Fyzabad, on
the Southern bank of the Goggrah, there is a
remarkable place planted with bushy trees, of which
Tieffenthaler gives the following account:
It is seated upon a hill somewhat steep, and
fortified with little doors of earth at the four corners
(of the enclosure). In the middle it is seen a
subterranean hole, covered with a dome of moderate
dimensions. Closed by is a lofty and very old
tamarind-tree. A piazza runs round it. It is said that
Ram, after having vanquished the giant Ravan, and
returned from Lanka descended into this pit, and
there disappeared: hence, they have given to this
place the name of Gouptar (or Gouptargath). You
have here, then, a descent into hell, as you had at
Oude and ascension to heaven. As the scene of
many of the leading events in the great epic poem of
the Ramayuna, Oude might be expected to abound
with sports of traditional sanctity
(Ibid.p.316-317)
Principal submission of Sri H.S. Jain is that place of birth of
Lord Ram was previously Janamsthan temple which was
23
demolished and Babri mosque was constructed at the site which is
also reflected from the gazetteers,prepared by P. Carnegi, Millet,
Fuhror, Newill and E.B.Joshi. They are Exts. O.O.S. -57, Ext. 7,
Ext.8, Ext.9, Ext.10, Ext. 11, Ext. 12 and Ext. 13 in O.O.S. 5-7. He
has further submitted that Encyclopedia of India and Eastern and
Southern India by Surgeon General Edward Balfour referred
Janmsthan which shows that Muslims destroyed Hindu temple
and converted into a mosque. He has further urged that according
to Tiffen Thaler at the site of Ram Janam Bhumi, mosque was
constructed after demolishing Hindu temple. He has also referred
Ayodhya by Hans Bakker which reveals that place of birth of Lord
Ram is identifiable and was used to be a place of worship and old
temple was renovated which was demolished at the command of
Babur in the year 1528 by Mir Baki at the behest of Muslim Saint
Kwaja Fazal Abbas. Mr Jain has further submitted that Tiffen
Thaler had not given reference of Babur but of Aurangzeb. He has
also pointed out that in O.S.No. 280 of 1885 Mahant Raghubar
Das Vs. Secretary of State the place was identified as birth spot of
Lord Ram and in view of historical background it is crystal clear
Ram Janam bhumi temple was demolished by Muslims. There is
clinching evidence that Ram Janam Bhumi is the place where the
temple was built by King Govind Chandra but the same was
demolished at the command of Babur by Mir Baki. 12 line
inscription in dev nagri script written in 11
th
and 12
th
century was
24
also recovered. This is fully established by Paleography (Science
of of old writing). He has further submitted that besides the above
inscription even from the ruins of the disputed structure certain
archaeological remains of pre Babri Hindu temple were recovered
and they establish that there was a Janamstan temple prior to
construction of Babri mosque and 14 black stone pillars were
recovered in the construction of the mosque and they are
embellished with different Hindu Iconography,repeatedly found in
all Hindu temples. He has further argued that different objects of
archeological importance were recovered from the debris of the
demolished disputed structure. Sri Jain has further stressed that
Hindu temple of 12
th
century constructed during the reign of
Govind Chand was destroyed at the command of Babur and
mosque was erected on it , which was site of Ram Janam Bhumi.
Parts of the temple were re-used in the construction of Babri
mosque. Accordingly at the time of demolition of disputed
structure 260 artifacts were recovered. They denote Aamlak, part
of Hindu temple, lotus, part of Shikhar, dorgem etc. Further Shvi
Parti images were also found. Inscription of Hindu Vishnu temple
establishes that disputed place is Ram Janam bhumi and there
used to be temple. Thus, on the basis of descriptions gazetteers
and other historical accounts, it is established that the mosque was
constructed at the site of Ram Janambhumi. It was considered as
sacred place of Hindus and it was worshipped like a deity and
25
incarnation of birth place of Lord Ram Chandra . Thus, this pious
place was all the time worshipped and kept in high esteem by
Hindus even after the construction of the disputed structure. Thus,
Hindus have always attached sacred character of birth spot of Lord
Ram. The defendants have proved the existence of Ram
Janambhumi temple at the place of birth of Lord Ram .
Accordingly they have discharged their duties and this fact should
be admitted in evidence and now burden lies on the plaintiffs to
show otherwise that it was not a Hindu temple. He has heavily
relied over the conclusion of archeological team consisting of 14
members which transparently worked under the control of this
Court as two Judicial Officers were the observers and team was
composed of officers of both communities . The scientific report
of experts which is data base fully establishes the existence of
Ram Janambhumi and accordingly the defendants have
successfully established the prior construction of temple which
was demolished for the construction of the mosque by Muslim
under the command of Babur which was prevalent practice among
Muslims to destroy Hindu temples and the numerous instances
for the destruction of the Hindu temples which was the order of the
day during those days are established from historical records.
Thus, looking to the place from any angle even prior to the
construction of Babri mosque it transpires from archeological
evidence that there was a Ram Janambhumi temple .
26
Sri Jain has relied upon para 78 of Dr. M. Ismail Faruqui
and others Vs, Union of India and others 1994(6) SCC 360
which is reproduced as under :
While offer of prayer or worship is are religious
practice, its offering at every location where such
prayers can be offered would not be an essential or
integral part of such religious practice unless the place
has a particular significance for that religion so as to
form an essential or integral part thereof. Places of
worship of any religion having particular significance
for that religion, to make it an essential or integral
part of the religion, stand on a different footing and
have to be treated differently and move reverentially.
Sri H.S. Jain, Advocate has further argued that since birth
place of Lord Ram was considered as a place of worship which was
integral part of religious practice of Hindu from times immemorial.
It is deity and it stands on a different footing and have to be
treated reverentially. Sri Jain has further urged that in view of the
constitutional mandate as provided under Article 25 of the
Constitution this place which was all the time being worshipped
has be treated by this Court as a place of worship because of the
belief of the Hindu based on religious book and religious practice
to be birth place of Lord Ram as the temple was constructed in the
12
th
century. It is expedient to say that prior to 12
th
century there is
evidence that earlier temples were also constructed at the site .Thus,
according to Sri H.S.Jain, Advocate there is overwhelming evidence
to establish the site of Ram Janambhumi and the Court has to
recognize the same. Thus, the suit of the plaintiffs which causes
hindrance for worship of Hindu is liable to be dismissed on this
27
count as no relief can be granted under Section 42 of the Specific
Relief Act,1877, now Section 34 of the Specific Relief Act,1963.
Sri Ravi Shanker Advocate has also advanced argument in
support of the claim of Hindus. He has submitted that it is
established from the gazetteers, Hindu religious books and belief of
Hindus and sacred character of the birth place of Lord Ram which
was worshipped like a God. The plaintiffs have no claim over the
property in suit and Hindus have fundamental rights to retain the
same.
The learned counsel Shri Ravi Shanker Prasad has further
submitted that in the present case, the adjudication has to be made
in a matter relating to Hindu faith. His submissions are as under:-
Basic submission is that Hindus have been worshiping the
place in dispute as Sri Rama Janma Bhumi or Janamasthan and
visiting it as a sacred place of pilgrimage as of right since times
immemorial.
The following facts are undisputed-
(a) That Ayodhya is a sacred place for Hindus;
(b) That Bhagwan Sri Rama was born in the said
Ayodhya;
(c) That Bhagwan Sri Rama is incarnation of
God as per Hindu belief;
The relevant voluminous documentary evidence
concerning the sacred character of Ayodhya being the place of
28
birth of Lord Sri Ram and, therefore, which is held in high
esteem by the Hindus even after the construction of the
disputed structure.
In the present case the plaintiffs though have made
statements regarding an alternative birthplace of Bhagwan Sri
Ram but they have not led any evidence whatsoever to prove
the same. The defendants have discharged their burden of
proof by showing that there was a temple of Bhagwan Sri Rama
under the present disputed structure. It is for the plaintiffs to
prove to the contrary.
(d)Under the above-mentioned circumstances, the
question which arises is whether Hindus believe
that Bhagwan Sri Ram was born at the
impugned/disputed site in issuing known as Sri
Rama Janma Bhumi.
It is apparent from prima facie examination of the facts that
the dominant issue in the present dispute pertains to the legal
adjudication of matters relating to the Hindu faith.
It has been held by the Supreme Court in AIR 1953 Supreme
Court 491- Saraswathi Ammal Vs. Rajagopal Ammal, in
paragraph 6 that to find out that religious purpose under Hindu law
must be determined according to Hindu notions which in turn has
been variously recognized by the Court in a large number of
decisions.
29
In this connection one of the most important books
universally acknowledged and recognized as an authority by the
Courts in India and abroad is The Hindu Law of Religious and
Charitable Trusts by B.K. Mukherji- a very renowned and
outstanding jurist of the country who is an authority on the subject
and is widely quoted. It may be relevant to refer to few pages of the
said book, fifth edition, by A.C. Sen, a former judge of Calcutta
High Court. The first edition which in fact was a compendium of
Tagore Law Lectures series was published in the year 1952 and at
Page 75 of the book there is a very significant paragraph which
throws light on the interpretation of issues in the present suit:
2.27. These observations, if I may say so, apply with full
force to trusts created by Hindus for religious purposes.
Undoubtedly the court and not the donor is the judge, of whether
an object is charitable or not, but the court cannot enter into the
merits of particular religious doctrine, and therefore must remain
neutral. The divine service of a particular religion is defined by the
doctrines of the religion itself and no court can appreciate their
spiritual efficacy, unless it knows there doctrines and hypothetically
admits them to be true. In controversial matters the court cannot
possibly decide whether the doctrines are beneficial to the
community or not. It has got to act upon the belief of the
members of the community concerned, and unless these beliefs
are per se immoral or opposed to public policy, it cannot
30
exclude those who profess any lawful creed from the benefit of
charitable gifts...
THE CONCEPT OF DEITY IN HINDU FAITH
1. As the Hindus have since times immemorial and for many
generations consistently held in great esteem and reverence the
Rama Janmasthan in Ayodhya where they believe Sri Ram was
born, this at once requires an understanding and recognition of the
Hindu concept of deity as recognized by law and whether the Rama
Janmasthan where Ram Lala is Virajman is in accordance with the
said concept of deity.
2. The concept of deity which is a very distinguishing feature of
the Hindu faith is one that is eternal, permanent and omnipresent
wherein the deity is the image of the Supreme Being. The temple is
the home of the deity and to constitute a temple it is enough if the
people believe in its religious efficacy, i.e., there is some supreme
super human power existing there whom they need to worship and
invoke its blessings. As a result, the existence of an idol, though
desirable, is not a legal precondition. The worship of such a
divinity can also be formless or without any image, the only criteria
being that people must believe in its divinity and seek its blessings.
3. There are many examples of this concept, Hindu worships
Agni, Vayu and many sacred rivers like Ganga which do not
resemble the traditional image of a deity yet the Hindus believe in
their power of divinity. If such experience and the invocation of
31
blessings are possible even in the case of a log of wood or a simple
stone, it acquirees the sacred character of divinity. The Sangam
(confluence) at Prayag is another example which is supposed to be a
holy place where three rivers Ganga, Yamuna and Saraswati (which
is invisible) meet and for the last thousands of years its sacred
character remains intact where millions of people believe that by
taking a bath there they wash off their sins. The recent Kumbha
Mela in Haridwar where nearly 8 crore people visited further
reinforces the divine character of the river Ganga at Haridwar
which is highly sacred and its blessing is sought. The famous
Vishnupad Mandir in Gaya again has no image at all except a small
image of two 'Charan only which is being worshipped for the last
hundreds of years as Vishnupad.
4. The traditional and classical legal literature relating to Hindus
has also duly sanctified such belief and faith which has been
exalted to a juristic status requiring legal recognition. In this
connection, the Hindu Law of Religious and Charitable Trusts
by B.K. Mukherjea lays down some of the relevant concepts
relating to deity and the temple along with concerned page number
which are consistently being recognized as judicial authorities, not
only in India but also abroad. The concept mentioned therein along
with concerned page numbers are being quoted below:
Page 26-27 Para 1.33: Idols representing same divinity One
thing you should bear in mind in connection with image worship
32
viz. That the different images do not represent separate divinities;
they are really symbols of the one Supreme Being, and in
whichever name and form the deity might be invoked, he is to the
devotee the Supreme God to whom all the functions of creation,
preservation and destruction are attributed. In worshipping the
image therefore the Hindu purports to worship the Supreme Deity
and none else. The rationale of image worship is thus given in a
verse which is quoted by Raghunandan:
Chinmayasyaadwitiiyasya Naskalashariirina
Saadhakaanaam Hinaathayi Brahmanii Roopakalpanaa.
It is for the benefit of the worshippers that there is
conception of images of Supreme Being which is bodiless, has no
attribute, which consists of pure spirit and has got no second.
Temples and mutts are the two principal religious institutions
of the Hindus. There are numerous texts extolling the merits of
founding such institutions. In Sri Hari Bhaktibilash a passage is
quoted from Narsingha Purana which says that whoever conceives
the idea of erecting a divine temple, that very day his carnal sins are
annihilated; what then shall be said of finishing the structure
according to rule ......... He who dies after making the first brick
obtains the religious merits of a competed Jagna.
1.34. Other kinds of religious and charitable
benefactions.- A person consecrating a temple, says Agastya,
also one establishing an asylum for ascetics also, one consecrating
33
an alms house for distributing food at all times ascend to the highest
heaven.
Besides temples and mutts the other forms of religious and
charitable endowments which are popular among the Hindus are
excavation and consecration of tanks, wells and other reservoirs of
water, planting of shady trees for the benefit of travellers,
establishment of Choultries, satras or alms houses and Dharamsala
for the neefit of mendicants and wayfarers, Arogyasalas or
hospitals, and the last though not the least, Pathshalas or schools for
giving free education. Excavation of tanks and planting of trees are
Purtta works well known from the earliest times. I have already
mentioned that there is a mention of rest houses for travellers even
in the hymns of the Rigveda. The Propatha of the Vedas is the same
thing as Choultrie or sarai and the name given to it by subsequent
writers is Pratishraygrih. They were very popular during the
Buddhist tie. In Dana Kamalakara, a passage is quoted from
Markandeya Puran which says that one should make a house of
shelter for the benefit of travellers; and inexhaustible is his religious
merit which secures for him heaven and liberation. There are more
passages than one in the Puranas recommending the establishment
of hospitals. One must establish a hospital furnished with valuable
medicines and necessary utensils placed under an experienced
physician and having servants and rooms for the shelter of patients.
This text says further that a man, by the gift of the means of freeing
34
others from disease, becomes the giver of everything. The founding
of educational institutions has been praised in the highest language
by Hindu writers. Hemadri in his Dankhanda has quoted a passage
from Upanishad according to which gifts of cows, land and learning
are said to constitute Atihaan or gifts of surpassing merit. In
another text cited by the same author, it is said that those excluded
from education do not know the lawful and the unlawful; therefore
no effort should be spared to cause dissemination of education by
gift of property to meet its expenses.
Page 38-Para 1.50. The idol as a symbol and
embodiment of the spiritual purpose is the juristic person in
whom the dedicated property vests:- As you shall see later on the
decision of the Courts of India as well as of the Privy Council have
held uniformly that the Hindu idol is a juristic person in whom the
dedicated property vests. A Hindu idol, the Judicial Committee
observed in one of its recent pronouncements, is according to long
established authority founded upon the religious customs of the
Hindus and the recognition thereof by Courts of Law, a juristic
entity. It has a juridical status with the power of suing and being
sued. You should remember, however, that the juridical 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 by the Pran Pratistha ceremony. It is not also correct
that the Supreme Being of which the idol is a symbol or image is
35
the recipient and owner of the dedicated property. The idol as
representing and embodying the spiritual purpose of the donor is the
juristic person recognized by law and in this juristic person the
dedicated property vests.
Page 38-39-Para 1.51. Deity owner in a secondary sense.-
The discussions of several Hindu sages and commentators point to
the conclusion that in case of dedicated property the deity is to be
regarded as owner not in the primary but in the secondary sense. All
the relevant texts on this point have been referred to by Sir Asutosh
Mookerjee in his judgment in Bhupati v Ramlal and I will
reproduce such portions of them as are necessary for my present
purpose.
Sulapani, a reputed Brahminical Jurist, in his discourse on
Sraddha thus expresses his views regarding the proper significance
of gift to God:- in 'Donation' having for its dative case, the Gods
like the Sun, etc., the term 'donation' has a secondary sense. The
object of this figurative use being extension to it of the inseparable
accompaniment of that (gift in its primary sense), viz., the offer of
the sacrifical fee etc. it has already beeb remarked in the chapter on
the Bratis that such usage as Devagram, Hastigram, etc., are
secondary. Sree Krishna in commenting on this passage thus
explains the meaning of the expression Devgram: Moreover, the
expression cannot be used here in its primary sense. The relation of
one's ownership being excluded, the possessive case affix (in Devas
36
in the term Devagram) figuratively means abandonment for them
(the Gods). Therefore, the expression is used in the sense of a
village which is the object of abandonment intended for the Gods.
This is the purport. According to Savar Swami, the well-known
commentator on Purba Mimansa, Devagram and Devakhetra are
figurative expressions. What one is able to employ according to
one's desire is one's property. The Gods however do not employ a
village or land according to their use.
Page 39-Para 1.52. These discussions are not free from
obscurity but the following conclusions I think can be safely drawn
from them:-(1) According to these sages the deity or idol is the
owner of the dedicated property but in a secondary sense. The
ownership in its primary sense connotes the capacity to enjoy and
deal with the property at one's pleasure. A deity cannot hold or
enjoy property like a man, hence the deity is not the owner in its
primary sense. (2) Ownership is however attributed to the deity in a
secondary or ideal sense. This is a fiction (Upchaar) but not a mere
figure of speech, it is a legal fact; otherwise the deity could not be
described as owner even in the secondary sense. (3) The fictitious
ownership which is imputed to the deity is determined by the
expressed intentions of the founder; the debutter property cannot be
applied or used for any purpose other than that indicated by the
founder. The deity as owner therefore represents nothing else but
the intentions of the founder. Although the discussions of the Hindu
37
Jurists are somewhat cryptic in their nature, it is clear that they did
appreciate the distinction between the spiritual and legal aspects of
an idol. From the spiritual standpoint the idol might be to the
devotee the very embodiment of Supreme God but that is a matter
beyond the reach of law altogether. Neither God nor any
supernatural being could be a person in law. 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 and
the correct view is that in the capacity alone the dedicated property
vests in it.
Page 152-153-Para 4.3B. Sources of Puranas.- It is said
sometimes that the Vedic mythology was merely elaborated in the
Puranas. This is not wholly or even substantially true. The sources
of some of the legendary stories occurring in the Puranas can, no
doubt, be traced in the Vedas but it would not be correct to say that
the Pouranic gods were mere reproductions of the Vedic gods.
There is nothing in the Vedas corresponding to the Pouranic Trinity
of Brahma, Vishnu and Siva. Brahma in the Vedic text signified the
Sun, or was a synonym of prayer. Vishnu in the Rigveda occupied a
rather subordinate position. He was also identified with the Sun,
and his three strides encompassing the three spheres of existence, as
suggestive of all pervasiveness constituted the foundation of the
Pouranic legend of the three steps of Vishnu in his incarnation of
the Dwarf. Siva hardly appears as the name of any deity in Vedic
38
time. The expression Siva means propitious or benignant. Rudra,
one of the Vedic deities, was in all probability, another name of
Agni or fire, and the Puranas identified Siva with Rudra. We hear
very little of Ganpati or Kartikeya in the Vedas. Kali, who is
described in the Puranas as a consort of Siva, was spoken of in
Mandukopanishad as one of the seven tongues of fire, while the
name of Uma occurs in the Kenopanishad, where she is described
as a resplendent lady who gave lessons in divine knowledge to the
gods. Sri Krishna, who looms so large in the Pouranic literature, is
mentioned only as a scholar and not as a deity in the Vedas, though
many of the legendary stories attributed to him in the Puranas are
traceable to similar legends associated with Indra in the Vedic
literature.
It is not necessary for our present purpose to pursue these
discussions any further. Though the Puranas are by no means
uniform, the legends associated with the various gods are fairly well
known and have been the basis of a considerable mass of poetic
literature in later times. One cardinal principle underlying idol
worship you would always bear in mind and this has some
bearing on the law relating to gift of property to idols that
whichever god the devotee might chose for purposes of worship
and whatever image he might est up and consecrate with that
object, the image represents the Supreme God and none else.
There is no superiority or inferiority amongst the different
39
gods. Siva, Vishnu, Ganapati or Surya is extolled each in its
turn as the creator, preserver and supreme lord of the universe.
The image simply gives a name and form to the formless God
and the orthodox Hindu idea is that conception of form is only
for the benefit of the worshipper and nothing else.
Page 153-Para 4.4. Building and consecration of
temples.-Along with the establishment of idol worship, in Hindu
religion, elaborate rites and ceremonies, it seems, were introduced
by Brahminical writers in regard to building of temples and
consecration and purification of idols. I will touch these matters
very briefly. A temple is the house of the deity and many of the
rules of construction of a temple are practically the same as are
prescribed for construction of a dwelling house, the additional rules
being laid down to ensure greater sanctity of the structure that is
meant for the abode of a deity. One who wants to build a temple has
got to select the proper time for building with reference to
astrological calculations. There are detailed rules relating to
selection of the site which include examination of the nature and
colour of the soil, its odour, taste, solidity, etc. after the site is
selected, it is ploughed up and seeds are sown in it. As soon as the
seeds germinate, the crop is allowed to be grazed over by cows. The
cardinal points are then to be ascertained for giving this structure an
auspicious aspect and there are rules to be observed regarding the
material to be used and the location of doors, windows, etc. the
40
important religious ceremony is the Vastu Jaga in honour of Vastu
Purusha or Vastu Debta who presides over dwelling house, with
oblations of milk, rice and sugar. This Vastu Gaja is a very ancient
ceremony which dates from the Grihya Sutras of Aswalayan and
Goville. The Puranas, however, contain a mythological legend
regarding the Vastu Purusha and the modern form of the sacrifice
in honour of this deity is described among others in Matsya Purana,
Brihat Samhita and Devi Purana. All these ceremonies in
connection with the building of a temple have been described with
elaborate by Pandit Prana Nath Saraswati in his Tagore Lectures on
the Hindu Law of Endowment. They are of little importance to a
lawyer, as no question of law could possibly turn upon the manner
in which a temple has been consecrated. Even if the rules prescribed
by the Smriti writers are not obeyed, the founder of the temple may
incur sin but the legal rights over or in respect of the temple cannot
in any way be affected by thee omissions.
Page 154-Para 4.5. Images their description.- Image,
according to Hindu authorities, are of two kinds: the first is known
as Swayambhu or self-existent or self-revealed, while the other is
Pratisthita or established. The Padma Puran 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; ...... where the
self possessed Vishnu has placed himself on earth in stone or
41
wood for the benefit of mankind, that is styled the self
revealed. A Swyamhu or self-revealed image is a product of
nature, it is Anadi or without any beginning and the worshippers
simply discover its existence. Such image does not require
consecration of Pratistha. All artificial or man-made images require
consecration. An image according to Matsya Purana may properly
be made of gold, silver, copper, iron, brass or bell metal or any kind
of gem, stone or wood, conch shell, crystal or even earth.
Some persons worship images painted on wall or canvas,
says the Brihata Purana and some worship the spheroidical
stones known as Salgram. Generally speaking, the Pouranic
writers classify artificial images under two heads: viz. (1) Lepya
and (2) Lekhya. Lepya images are moulded figures of mental or
clay, while Lekhyas denote all kinds of pictorial images
including chiselled figures of wood or stone not made by
moulds. In the case of Goswami Geeridhariji v. Ramanlalji
which went up to the Privy Council, the subject matter of
dispute was the pictorial image of the head of the Ballavacharya
Sect and not of any deity. Images again may be permanent or
temporary. Temporary images which are set up for periodical Pujas
like Durga, Saraswati, etc. are generally made of clay and are
immersed in a river or tank after the puja is over.
Page 156 Para 4.7. Worship of the Idol.-After a deity is
installed, it should be worshipped daily according to Hindu Sastras.
42
The person founding a deity becomes morally responsible for the
worship of the deity even if no property is dedicated to it. This
responsibility is always carried out by a pious Hindu either by
personal performance of the religious rites or, in the case of Sudras,
by the employment of a Brahmin priest. The daily worship of a
consecrated image includes the sweeping of the temple, the process
of smearing, the removal of the previous day's offerings of flowers,
the presentation of fresh flowers, the respectful oblation of rice with
sweets and water and other practices. The deity in short is
conceived of 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 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.
Page 156-157 Para 4.8. Reconstruction or purification
of idols in case of defilement or destructions.-According to Hindu
sages, an image becomes defiled if it is not worshipped regularly.
Reconstruction or purification of the image is ordained in cases
where the image is mutilated, broken, burnt, fallen down or
removed from its place or is defiled by a beast or the touch of an
out-caste or even when hymns appropriate to other gods are recited
before it. The rules for reconstruction or replacement of an idol are
thus laid down in Hayasirsha Pancharatram. Whatever is the
43
material and whatever the size, of the image of Hari (God), that is to
be renewed; of the same material and of the same size, an image is
to be caused to be made; of the same size, of the same form and of
the same material, should be placed, there, either on the second or
the third day (the image of) Hari should be established; if it be
established after that, even in the prescsribed mode, there would be
blame. The destruction of an image, as you will see presently,
does not cause an extinction of the religious trust that is created
in its favour; the rules of construction or replaacement of an
idol as set out above are most liberally construed. It is enough if
an image is established substantially representing the old or is
treated as such, and the fact that the replacement was not made
within the prescribed time, though blamable from the orthodox
point of view, does not affect the validity of replacement. When
the settler had provided for Puja being performed in a specified
Bhajana Matam, and subsequently that building was lost to the
trust, it was held that did not extinguish the trust, as a new Bhajana
Matam could be constructed and Puja performed there.
Page 158 - Para 4.10. Dedicated property vests in the idol
as a juristic person.-When property is given absolutely by a pious
Hindu for worship of an idol, the property vests in the idol itself as
a juristic person. This view, as I have explained in the first lecture,
is quite in accordance with Hindu ideas and has been uniformly
accepted in a long series of decisions of the different High Courts in
44
India as well as by the Judicial Committee. As West, J. observed in
Manohar Ganesh v. Lakshmi Ram: The Hindu law recognises not
only corporate bodies with rights of property vested in the
corporation apart from its individual members, but also juridical
subjects or persons called foundations.
The Hindu idol is juridical subject, and the pious idea that it
embodies is given the status of a legal person and is deemed
capable in law of holding property in the same way as a natural
person.
The idol, deity or religious object, observed West and
Buhler in their Digest on Hindu Law, is looked upon as a kind of
human entity. It is a sacred entity and ideal personality possessing
proprietary rights. The Judicial Committee has pointed out on more
occasions than one that it is only an ideal sense that property can be
said to belong to an idol and the possession and management of it
must, in the nature of things, be entrusted to some persons as
Shebait or manager. The legal principle has thus been summed up in
one of the pronouncements of the Judicial Committee:
A Hindu idol is, according to long-established authority,
founded upon the religious customs of the Hindus, and the
recognition thereof by courts of law, a 'juristic entity'. It has a
juridical status, with the power of suing and being sued. Its
interests are attended to by the person who has the deity in his
charge and who in law is its manager, with all the powers which
45
would, in such circumstances, on analogy, be given to the
manager of the estate of an infant heir. It is unnecessary to
quote the authorities; for this doctrine, thus simply stated, is
firmly established.
Page 158-159 Para 4.10A. Existence of idol is necessary for
temple.-
While usually an idol is instituted in a temple, it does not appear
to be an essential condition of a temple as such. In an Andhra
case, it was held that to constitute a temple, it is enough if it is a
place of public religious worship and if the people believe in its
religious efficacy, irrespective of the fact whether there is an
idol or a structure or other paraphernalia. It is enough if the
devotees or the pilgrims feel that there is one superhuman
power which they should worship and invoke its blessings.
However, in almost all cases the temple does possess an idol.
Page 160-162. Para 4.13. The principle of Hindu Law that a
donee must be in existence at the time of gift whether applicable
to the creation of a Dubutter endowment? In a Debutter
endowment, as you have seen, the deity or idol is the recipient or
donee of the endowed property which vests in it as a juridical
person. To constitute a valid gift under Hindu law it is necessary
that it must be accepted by a sentient being who is in existence at
the time of the gift. This rule which was authoritatively laid down
by the judicial Committee in the case of Tagore v. Tagore has been
scrupulously followed ever since by all the High Courts in India. An
46
attempt was made however in some of the decisions of the Calcutta
High Court to carry the rule too far, and to hold that a gift to an idol
which is not consecrated or in existence at the time of dedication is
not valid. Thus, in Upendra Lal Boral v. Hem Chandra where one of
the question raised related to the validity of a bequest in favour of a
non-existent idol, it was held by the learned Judges that if there
was a gift to the idol, it was bad, because there was no idol in
existence at the time of his death, and further if there was a oer to
make such a gift the power was ineffective because on the authority
of Bai Malivahu v. Mamubai we think that a power must be to
convey to a person who was in existence either actually or in
contemplation of law at the death of the testator and the idol to
which the dedication is sought to have been made was not then in
existence. the learned Judges proceeded to say, the deity no doubt
is always in existence but there could be no gift to the deity as such
and there was no personification of the deity to whom the gift
could have been made, or who was capable of taking it. The same
view was taken by Stanley, J. in Rojomoyi v. Troylukho and it was
held that a direction in the will of a testator to establish a 'thakur' to
whom the entire residuary estate was to go was invalid. Whether a
gift be in presenti or in futuro, thus observed the learned Judge,
it is settled that the donee must be a person in existence and
capable of accepting the gift at the time it takes effect Tagore v.
Tagore. That which cannot be done directly by gift cannot be done
47
by the intervention of a trustee; Krishna Ramani v. Ananda;
Rajendra Dutt v. Sham Chand. An idol cannot be said to have
juridical existence unless it has been consecrated by the appropriate
ceremonies, and so has become spiritualised. Before this, the deity
of which the idol is the visible image does not reside in the idol:
Doorga Pershad v. Sheo Pershad. In Nagendra Nandini v. Binoy
Krishna, Stephen, J. took it to be a settled law that a bequest to a
thankur not in existence at the date of the death of the testator was
not valid. It may be noticed here that the case of Doorga Pershad v.
Sheo Pershad, to which reference was made by Stanley, J., is of a
different type altogether. In that case an image of Vishnu, as also the
Debotter property dedicated to it, were sold in execution of a money
decree against the Shebait, and the purchaser brought the image to
his house and continued to conduct its worship. The Shebait's son
set up another image of the god, and instituted a suit against the
purchaser to recover the property but not the original image. It was
contended on his behalf that the removal of the original image
destroyed its sanctity and justified its replacement by another
image, and in any event the property should be devoted to the
worship of the second image also. The first contention was
negatived and with it the second contention fell also. It was held by
the learned judges and quite rightly that no second image could be
set up when an existing image continues fit for worship, the deity
being intended by the founder to be worshipped by one image and
48
not simultaneously by two. No doubt the learned judges observe in
the course of their judgment that according to Hindu rites when an
idol has been consecrated by appropriate ceremonies and
pronunciation of Mantras, then and then only the deity of which the
idol is the visible image could reside in it. But there is nothing in
the decision which might be taken to lay down that a dedication is
not valid unless a consecrated image is in existence at the date of
dedication. This question was neither considered nor decided by the
learned Judges. The authority of the cases referred to above has
been overruled by the pronouncement of Full Bench of the Calcutta
High Court in Bhupati Smrititirtha v. Ram Lal. The main question
referred to the Bull Bench was: Does the principle of Hindu Law
which invalidates a gift other than to sentient being capable of
accepting it, apply to a bequest to trustees for the establishment of
an image and the worship of a Hindu deity after the testator's death,
and make such a bequest void? The Full Bench answered the
question in the negative. Sir Lawrence Jenkins who presided over
the Full Bench in the course of his judgment observed that the rule
which requires relinquishment should be to a sentient person does
not forbid the gift of property to trustees for a religious purpose
though that purpose cannot in strictness be called a 'sentient person'.
It would seem that the rule propounded by Jinutabahan had regard
rather to the general proposition for he was contending, i.e., the act
of the giver is the cause of property, than to its application to
49
particular objects of benevolence. The fiction that an idol is a
person capable of holding property must be kept within its proper
limits, and were we to accede to the argument that has been
advanced before us, we should be allowing fiction to be built on
fiction to the hindrance and not for the furtherance of justice.
Mookerjee, J. in the same case held on a review of all the relevant
texts that according to Hindu law the rule about the acceptance of a
gift as a necessary condition for its validity was applicable to
secular gifts only. There is no foundation for the assumption that the
dedication to deity or for religious purpose stands on the same
footing. In summing up the legal position the learned Judge
observed as follows: The view that no valid dedication of property
can be made by a will to a deity the image of which is not in
existence at the time of the death of the testator is based upon a
double fiction, namely, first that the Hindu deity is for all purposes
a juridical person and secondly that a dedication to the deity has the
same characteristics and is subject to the same restrictions as a gift
to a human being. The first of these propositions is too broadly
stated, and the second is inconsistent with the first principles of
Hindu Jurisprudence. The provisions of Hindu law relating to
secular gifts are therefore not applicable when the dedication is to
the idol. Moreover,-and this was pointed out by Chatterjee, J., who
was a member of the Full Bench-the conception of Hindu jurists
was not that the image of clay or stone constituted the juristic
50
person. The Smriti writers have laid down that if an image is
broken or lost another may be substituted in its place; when so
substituted it is not a new personality but the same deity, and
properties vested in the lost or mutilated thakur become vested
in the substituted thakur. Thus, a dedication to an idol is really
a dedication to the deity who is ever-present and ever-existent,
the idol being no more than the visible image through which the
deity is supposed specially to manifest itself by reason of the
ceremony of consecration. The decision in Bhupati Smrititirtha
v. Ramlal has been followed by other High Courts in India, and
it has been held by the Allahabad High Court in Mohor Singh v.
Het Singh that a bequest to complete the building of a temple
which was commenced by the testator and to install and
maintain an idol therein was a valid bequest under the Hindu
Law. The fact that the gift is made by a deed inter vivos and not
by a will does not make any difference.
I may quote relevant case law;
(i) 1999 (5) SCC Page 50 (Ram-Janki Deity Vs. State of
Bihar): Paragraphs 13 to 19-An Idol is not a precondition.
Even a piece of stone may become the idol. Agni and Vayu are
worshipped. They are shapeless and formless. Even a simple
piece of wood can attain divinity. If the public goes for
worship and consider that there is a divine presence, then it is
a temple.
51
16. The observations of the Division Bench has been in
our view true to the Shastras and we do lend our
concurrence to the same. 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 Hindu Shastras - In
any event, Hindus have in Shastras "Agni" Devta; "Vayu"
Devta - these deities are shapeless and formless but for
every ritual Hindus offer their oblations before the deity.
The Ahuti to the deity is the ultimate - the learned Single
Judge however was pleased not to put any reliance thereon.
It is not a particular image which is a juridical person but it
is a particular bent of mind which consecrate the image.
17. One cardinal principle underlying idol worship ought
to be borne in mind:
that whichever god the devotee might choose for purposes
of worship and whatever image he might set up and
consecrate with that object, the image represents the
Supreme God and none else. There is no superiority or
inferiority amongst the different gods. Siva, Vishnu,
Ganapati or Surya is extolled, each in its turn as the creator,
preserver and supreme lord of the universe. The image
simply gives a name and form to the formless God and the
orthodox Hindu idea is that conception of form is only for
52
the benefit of the worshipper and nothing else.
(B.K. Mukherjea - on Hindu Law of Religious and
Charitable Trusts - 5th Edn.).
18. In this context reference may also be made to an
earlier decision of the Calcutta High Court in the case of
Bhupatinath v. Ramlal Maitra , wherein Chatterjee, J. (at
page 167) observed:
A Hindu does not worship the "idol" or the material
body made of clay or gold or other substance, as a mere
glance at the mantras and prayers will show. They worship
the eternal spirit of the deity or certain attributes of the
same, in a suggestive form, which is used for the
convenience of contemplation as a mere symbol or emblem.
It is the incantation of the mantras peculiar to a particular
deity that causes the manifestation or presence of the deity
or according to some, the gratification of the deity.
A simple piece of wood or stone may become the
image or idol and divinity is attributed to the same. As
noticed above, it is formless, shapeless but it is the human
concept of a particular divine existence which gives it the
shape, the size and the colour. While it is true that the
learned Single Judge has quoted some eminent authors but
in our view the same does not however, lend any assistance
to the matter in issue and the Principles of Hindu Law seems
53
to have been totally misread by the learned Single Judge.
(ii) 2000 (4) SCC, Page 146 Shiromani Gurudwara
Prabandhak Committee Vs. Somnath Das: Para 30 to 42-
Guru Granth Sahib is a juristic person.
35. Now, we proceed to examine the judgment of the High
Court which had held to the contrary. There was difference of
opinion between the two Judges and finally the third Judge
agreed with one of the differing Judges, who held Guru
Granth Sahib to be not a "Juristic Person". Now, we proceed
to examine the reasonings for their holdings so. They first
erred, in holding that such an endowment is void as there
could not be such a juristic person without appointment of a
Manager. In other words, they held that a juristic person
could only act through some one, a human agency and as in
the ease of an Idol, the Guru Granth Sahib also could not act
without a manager. In our view no endowment or a juristic
person depends on the appointment of a Manager, It may be
proper or advisable to appoint such a manager while making
any endowment but in its absence, it may be done either by
the trustees or Courts in accordance with law. Mere absence
of a-manager (does not) negative the existence of a juristic
person. As pointed out in Manohar Ganesh v. (approved in
Yogendra Nath Naskar's case ) referred to above, if no
manager is appointed by the founder, the ruler would give
54
effect to the bounty. As pointed in Vidyapurna Tirtha Swami
v. Vidyanidhi Tirtha Swami ,ILR Mad. (at p. 457), by
Bhashyam Ayyangar, J (approved in Yogendra Nath Naskar's
case : the property given in trust becomes irrevocable and if
none was appointed to manage, it would be managed by the
"Court as representing the sovereign." This can be done by
the Court in several ways under Section 92, C.P.C. or by
handing over management to any specific body recognised by
law. But the trust will not be allowed by the Court to fail.
Endowment is when donor parts with his property for it being
used for a public purpose and its entrustment is to a person or
group of person in trust for carrying out the objective of such
entrustment. Once endowment is made, it is final and it is
irrevocable. It is the onerous duty of the persons entrusted
with such endowment, to carry out the objectives of this
entrustment. They may appoint a manager in the absence of
any indication in the trust or get It appointed through Court.
So, if entrustment is to any juristic person, mere absence of
manager would not negate the existence of a Juristic person.
We, therefore, disagree with the High Court on this crucial
aspect.
(iii) AIR 1963 Supreme Court, Page 510-Para 8, The
Poohari Fakir Sadavarthy of Bondilipuram v. The
Commissioner, Hindu Religious and Charitable
55
Endowments. The institution will be a temple if two
conditions are satisfied-one-it is a place of public religious
worship-and and other- it is used as of right by the Hindu
community or any section thereof as a place of worship.
(iv) 2005 (1) SCC, Page 457-Thayarammal Vs.
Kanakammal and Others-Para 16 at Page 463: 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.
(v) (1888) ILR 12 Bombay, Page 247, Manohar Ganesh
Tambekar Vs. Lakhmiram GovindramProperty dedicated
to a pious purpose is by the Hindu as by the Roman Law
placed extra-commercium. Para-11 reads as under:-
11. 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 the juridical
persons or subjects called foundations West and Buhler,
H.L., 201, 185, 553, 555. A Hindu, who wishes to establish
a religious or charitable institution, may, according to his
law, express his purpose and endow it West and Buhler,
H.L., 99, 197, 216, and the ruler will give effect to the
bounty, or at least protect it so far, at any rate, as it is
consistent with his own dharma or conceptions of
56
morality West and Buhler, H.L., 33, Mann VIII, 41,
Coleb. Dig., B. III, Ch. II, T. 28. 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 Spence Eq. Juris., 440; Sav. Syst., Section.
This principle is recognized in the law of England as it was in
the Roman law, whence indeed it was derived by the modern
codes of Europe. It is equally consistent with the Hindu law,
which, as we have seen, undoubtedly recognizes artificial
juridical persons See Rupa Jagset v. Krishnaji Govind,
I.L.R., 9 Bom., p. 169 such as the institution at Dakor, and
could not, any more then any other law, support a foundation
merely as a means of squandering in waste or profligacy the
funds dedicated by the devout to pious uses.
(vi) AIR 1959 Supreme Court 951-Mahant Ram
Swarup Vs. S.P. Sahi Page 958-959 Para 10 & 12 It is
difficult to visualize that a Hindu private Debuttar will fail for
a deity is immortal. Even if the idol gets broken or lost or
stolen another image may be consecrated and it cannot be
said that the original object has ceased to exist. Para 12-B.K.
Mukherjee quoted.
10. We now turn to some of the other provisions of the Act,
which we have earlier quoted. Section 29(1) which talks of
supervision of a religious trust being vested in any committee
57
or association appointed by the founder or by a competent
court or authority is ordinarily appropriate in the case of a
public trust only. Section 30(1) which embodies the doctrine
of cypres permits any Hindu to make an application for
invoking the power of the Board to determine the object to
which funds, property and income of a religious trust shall be
applied where the original object of the trust has ceased to
exist or has become impossible of achievement. This section
is also inappropriate in the case of a private trust, the obvious
reason being that any and every Hindu cannot be interested in
a private trust so as to give him a locus standi to make the
application. Further, it is difficult to visualise that a Hindu
private debutter will fail, for a deity is immortal. Even if the
idol gets broken or is lost or stolen, another image may be
consecrated and it cannot be said that the original object has
ceased to exist. Section 32 is an important section of the Act
and confers power on the Board to settle schemes for proper
administration of religious trusts. Now, the section says that
the Board may exercise the power of its own motion or on
application made to it in this behalf by two or more persons
interested in any trust. The language of the section follows
closely the language of Section 92 Civil Procedure Code, so
far as the phrase "two or more persons interested in any trust"
is concerned.
58
(vii) AIR 1965 Supreme Court 906 - Idol of Thakur Sri
Govind Dev Ji Maharaj Vs. Board of Revenue - Page 908-
Para-6 - An idol which is a juridical person is not subject to
death because the Hindu concept is that the idol lives for ever.
6. The question which arises is, can the grant made to the
appellant be said to attract the operation of rule 5 ? Rule 5
prescribes for the levy of Matmi in respect of State grants and
if the said rule applies, the appellant would have no case. In
deciding the question as to whether the appellant's estate is
liable to pay Matmi under r. 5 it is necessary to examine the
nature of this Matmi, and find out whether a claim in respect
of it can be made against the appellant. We have already
noticed that Matmi means mutation of the name of the
successor to a State grant on the death of the last holder. It is
obvious that in the case of a grant to the Idol or temple as
such there would be no question about the death of the
grantee and, therefore, no question about its successor. An
Idol which is a juridical person is not subject to death,
because the Hindu concept is that the Idol lives for ever,
and so, it is plainly impossible to predicate about the Idol
which is the grantee in the present case that it has died at
a certain time and the claims of a successor fall to be
determined. That being so, it seems difficult to hold that any
claim for Matmi can be made against the appellant, and
59
that must clearly lead to the inference that no amount can be
recovered from the properties belonging to the Idol on the
ground that Matmi is claimable against a person who claims
to be the successor of the Shebait of the appellant.
It is next contended by Mr. Muthiah Mudaliar that there is no
"institution' in this case so as to attract the operation of
Section 84 (1), the institution, according to him, coming into
existence only if and when the building is completed and the
idol installed and consecrated in the manner prescribed by the
Agama Sastras, and described by Satyanarayana Rao J. in his
judgment. Consecration, according to the ceremonial rites
prescribed by the Agama.
(viii) AIR 1951 Madras Page 473 T.R.K. Ramaswamy
Servai and Anr. Vs. The Board of Commissioners Para
47- Existence of idol not necessary if the public which go
there consider that there is a divine presence in a particular
place and by offering worship at that place they are likely to
be the recipient of the bounty or blessing of God, then you
have got the essential feature of a temple. The test is not the
installation of an idol and the mode of its worship.
47. It is next contended by Mr. Muthiah Mudaliar that there is
no "institution' in this case so as to attract the operation of
Section 84 (1), the institution, according to him, coming into
existence only if and when the building is completed and the
60
idol installed and consecrated in the manner prescribed by the
Agama Sastras, and described by Satyanarayana Rao J. in his
judgment. Consecration, according to the ceremonial rites
prescribed by the Agama Sastras, is not a legal requisite,
though it is a sacredotal necessity according to the views of
the orthodox. 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 bounty or
blessings of God, then, you have got the essential features of
a temple as defined in Section 9, Clause (12) of the Act. The
presence of an idol, though an invariable feature of Hindu
temples, is not a legal requisite under the definition of a
temple in Section 9, Clause (12) of the Act. The word
"institution" which is used in Section 84 (1) of the Act is a
term of very wide import, capable of different meanings
according to the context in which it is used. It means, among
other things, a foundation, a system, a constitution, an
establishment, or organisation, a place designed for the
promotion of some. religious, charitable or other object of
public utility and so on. In this case, the place for the
construction of the temple had been fixed, the building had
61
been substantially erected though not completed, the idol was
ready to be installed, properties had been endowed and
trustees appointed for the conduct of the worship and the
management of the properties. The Board had jurisdiction to
decide the preliminary fact, whether there was an institution
within the meaning of Section 84 (1) and whether it was a
temple as defined in the Act. It decided in the affirmative an
its order Ex. R-1, dated 27-9-1938. Its decision has not been
sot aside in the only manner permitted by law and has now
become final and binding on the trustees. Merely because I
would have come to a different conclusion from the Board, I
cannot treat the order of the Board as null and void.
(ix) AIR 1939 Madras Page 134 Board of
Commissioners of Hindu Endowment Vs. P. Narasimha
Para 5 at Page 135 The Hindu Religious Endowments Act,
no doubt, speaks of a temple as a place of "public religious
worship". That what the evidence in this case describes as
taking place in connection with the institution is public
worship can admit of no doubt. We think it is also religious.
The test is not whether it conforms to any particular school of
Agama Sastras; 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
62
the object of the bounty of some superhuman power, it must
be regarded as "religious worship". In this view, the learned
District Judge was not justified in holding that the appellant
Board had no power under the Act to frame the scheme. The
appeal must be allowed with costs here and in the Court
below - costs to be paid by respondent 1.
(x) 2007 (5) SCC Page 677 Gedala Stachidanand
Murti Vs. Commissioner, confirms the above view.
(xi) AIR 1989 Madras Page 60 P.V. Durrairajulu Vs.
Commissioner of Hindu Religious Trusts Para 18
Presence of Idol is not necessary. It is in this background that
I will analyse the various clauses in Ex. A. 1. Veeraswami
Naidu, the founder of this temple was a Police Inspector.
Therefore one could take it that he was wordly wise. He had
already built this Sri Ramar Madalayam. According to him it
was built as a charity for the salvation of his soul. He
dedicates the same to the Public and requires under the will
to use as a temple and a mutt. I do not think anything more
necessary than this unequivocal dedication for the public to
enjoy as of right. In several places he uses the word
"Sannathi"; firstly with regard to the homums; secondly with
regard to the lighting during pooja days, offering prasadam
and distribution of the same, the cooked rice being distributed
as Prasadam. Therefore, I am unable to accept the contention
63
of Mr. T. R. Rajagopalan, that there is no picture of Sri Rama
which has come to be installed. As a matter of fact, it came to
be installed even during the lifetime of Veeraswamy, the
founder, and pooja was being performed. As Viswanatha
Sastri, J., pointedout in T.R.K. Ramaswami Servai v.Board of
Commissioner for the Hindu Religious Endowments, Madras
ILR (1950) Mad 779 : ( AIR1951 Mad 473) the presence of
idol is solely unnecessary, I should think this Mutt in
question should answer the definition of "temple, which
definition, I have already analysed. If a sense of reverence is
created by the place in the belief that God resides there or if
an edifice devoted to divine worship, that would be enough to
attract the definition of "Temple" under Section 6(20) of the
Act. In other words, it is a sense of reverence that is very
important. It may be stated that this very definition has been
repeated under the Act right from Act 2 of 1927, again in Act
19 of 1951 and also the present Act (Tamil Nadu Act 22 of
1959). Nowhere the requirements as are ordinarily expected
of a temple are insisted upon. It is a faith that it is the abode
of God that matters. It is that compelling faith, that by
offering prayers, one will be the object of bounty, that is
important. I consider these elements being present in this
case.
(xii) 1997 (4) SCC Page 606 Sri Adi Vishweshara of
64
Kashi Vishwanath Temple v. State of U.P.-Paragraph 30
at Page 631-The nature of Hindu religion is monism. It
believes in one supreme-being who manifests himself in
many forms. This is the reason why Hindus start adoring any
deity either handed down by tradition or brought by a Guru,
Swayambhu and seek to attain the ultimate supreme.
(xiii) AIR 1953 Allahabad 552 Gokul Nath Ji
Maharaj Vs. Nathji Bhogilal -According to Hindu notion
what is worshipped in a temple is not the stone image or
image made of wood. It is the God behind the image which is
the object of worship. The real owner of the property
dedicated to a temple is deemed to be God himself
represented through a particular idol or deity which is merely
a symbol.
Para 4 Property worshipped for more than 300 years there
can be no direct evidence of consecration.
Para 5 After the length of time it is impossible to prove by
affirmative evidence that there was consecration. However,
the idol was duly recognized by all who believed it is an idol
of Lord Krishna.
(xiv) AIR 1925 Privy Council -139 Pramathanath
Mullick Vs. Pradhyumna Kumar Mullick and Others:
Para 9 Deity is a living being to be treated like a master.
Para 29 It is not a moving chattel.
65
Para 31 Hindu idol is not property. Custodian cannot
destroy or cause injury.
(xv) 3 Indian Cases 642 - Full Bench of Calcutta High
Court Bhupati Nath Smrititirth Bhattacharjee Vs. Ram
Lal Mitra and Ors. As per Shastric Hindu Law if the image
is broken or lost another may be substituted in its place and
when so substituted it is not a new personality but the same
deity and properties previously vested in the lost or mutilated
Thakur. Para 73 reads as under;
73. Sastri's Hindu Law page 420 shows the Hindu idea of
the forms attributed to God for the convenience of worship a
particular image may be insentient until consecrated but the
deity is not. If the image is broken or lost, another may be
substituted in its place and when so substituted it is not a new
personality but the same deity and properties previously
vested in the lost or mutilated Thacoor become vested in the
substituted Thacoor. A Hindu does not worship the idol or
the material body made of clay or gold or other substance, as
a mere glance at the mantras and prayers will show. They
worship the eternal spirit of the deity or certain attributes of
the same in a suggestive form which is used for the
convenience of contemplation as a mere symbol or emblem.
It is the incantation of the mantras peculiar to a particular
deity that causes the manifestation or presence of the deity or,
66
according to some, the gratification of the deity. According to
either view, it is the relinquishment of property in the name
of the deity for securing its gratification that completes the
gift and such relinquishments are valid according to Hindu
Law even if made by dying man. It may be true that the
illiterate Hindu thinks of the consecrated symbol as the deity
and has not any clear idea of the particular attribute of the
God-head that is worshipped in a particular form, but it
cannot be said with any approach to truth that the great Rishis
and their commentators who declared the Hindu Law had
such a gross idea of the divinity they worshipped. In this
view of the case also the text of the Dayabhaga relied on in
the Tagore case 9 B.L.R. 377 : 18 W. R. 359 cannot invalidate
the gift in favour of a deity whose image is consecrated after
the death of the door.
OWNERSHIP OF PROPERTY BY A DEITY
The right of a deity of being worshipped by its followers can
never be confused with secular laws relating to management of
deities since they are fundamentally different. In the present case,
the question which is before this Court is that whether the site/place
of Sri Rama Janma Bhumi which is believed to be the birthplace of
Lord Ram by Hindus and is, therefore, a deity in itself and cannot
be alienated in any manner. The law on the said point is very clear
as has been explained above. It is undoubtedly apparent that the
67
said site cannot be alienated, even by the manager or the Shebait.
RELEVANT CASE LAWS RELIED BY SHRI RAVI
SHANKER ARE AS UNDER:
(i) 1969 (1) SCC Page 555 (Jagendra Nath Naskar Vs.
Commissioner of Income Tax) Para 5 & 6-A Hindu idol
owns property only in a figurative sense.
5. It is well established by high authorities that a Hindu idol
is a juristic person in whom the dedicated property vests. fit
Manohar Ganesh v. Lakshmiram called the Dakor temple
case, West and Birdwood, JJ. state :
The Hindu Law, like the Roman Law and those derived
from it, recognises not only incorporate bodies with rights
of property vested in the corporation apart from its
individual members but also juridical persons 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 or at least, protect it so far at any rate as is
consistent with his own Dharma or conception or morality.
A trust is not required for the purpose; the necessity of a
trust in such a case is indeed a peculiarity and a modern
peculiarity of the English Law. In early law a gift placed
as it was expressed on the altar of God, sufficed it to
convey to the Church the lands thus dedicated. It is
68
consistent wit the grants having been made to the juridical
person symbolised or personified in the idol.
The same view has been expressed by the Madras High Court
in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami and Ors. in
which Mr. Justice Subrahmania Ayyar stated :
It is to give due effect to such a sentiment, widespread
and deep-rooted, as it has always been, with reference to
something not capable of holding property as a natural
person, that the laws of most countries have sanctioned
the creation of a fictitious person in the matter as is
implied in the felicitous observation made in the work
already cited "Perhaps the oldest of all juristic persons is
the God, hero or the saint" (Pollock and Maitland's
History of English Law, Volume I, 481).
6. The consecrated idol in a Hindu temple is a juridical
person has been expressly laid down in Manohar Ganesh's
case, which Mr. Prannath Saraswati, the author of the
'Tagore Lectures on Endowments' rightly enough speaks
of as one ranking as the leading case on the subject, and
in which West J., discusses the whole matter with much
erudition. And in more than one case, the decision of the
Judirial Committee proceeds on precisely the same
footing (Maharanee Shibessourec Dehia v. Mothocrapath
Acharjo and Prosanna Kumari Debya v. Golab Chand
69
Baboo Such ascription of legal personality to an idol must
however be incomplete unless it be linked of human
guardians for them variously designated in Debya v.
Golab Chand Baboo the Judicial Committee observed
thus : 'It is only in an ideal sense that property can be said
to belong to an idol and the possession and management
must in the nature of things be entrusted with some
person as shebait or manager. It would seem to follow
that the person so entrusted must be 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'-words which seem to be almost on echo of
what was said in relation to a church in a judgment of the
days of Edward I: 'A church is always under age and is to
be treated as an infant and it is not according to law that
infants should be disinherited by the negligence of their
guardians or be barred of an action in case they would
complain of things wrongfully done by their guardians
while they are under age' (Pollock and Maitland's 'History
of English Law', Volume I, 483.
(ii) AIR 1957 Supreme Court 133 - Deoki Nandan
Agrawal Vs. Murlidhar Para 6 Endowment of property
in case of an idol is only in an ideal sense and it cannot have
70
any beneficial interest in the endowment. This is for the
worshipper. Para-6 reads as under:-
6. Then the question is, who are the beneficiaries when a
temple is built, idol installed therein and properties endowed
therefore ? Under the Hindu law, an idol is a juristic person
capable of holding property and the properties endowed for
the institution vest in it. But does it follow from this that it is
to be regarded as the beneficial owner of the endowment ?
Though such a notion had a vogue at one time, and there is
an echo of it in these proceedings (vide para 15 of the
plaint), it is now established beyond all controversy that this
is not the true position. It has been repeatedly held that it is
only in an ideal sense that the idol is the owner of endowed
properties. Vide Prosunno Kumari Debya v. Golab Chand
Baboo ; Maharaja Jagadindra Nath Roy Bahadur v. Rani
Hemanta Kumari Debi and Pramatha Nath Mullik v.
Pradhyumna Kumar Mullik . It cannot itself make use of
them; it cannot enjoy them or dispose of them, or even
protect them. In short, the idol can have no beneficial interest
in the endowment. This was clearly laid down in the Sanskrit
Texts. Thus, in his Bhashya on the Purva Mimamsa,
Adhayaya 9, Pada 1, Sabara Swami is the authenticity on the
subject.
"Words such as 'village of the Gods', 'land of the Gods'
71
are used in figurative sense. That is property which can be
said to belong to a person, which he can make use of as
he desires. God however does not make use of the village
or lands, according to its desires. Therefore nobody
makes a gift (to Gods). Whatever property is abandoned
for Gods, brings prosperity to those who serve Gods".
Likewise, Medhathithi in commenting on the
expression "Devaswam" in Manu, Chapter XI, Verse 26 is as
under:-
Property of the Gods, Devaswam, means whatever is
abandoned for Gods, for purposes of sacrifice and the like,
because ownership in the primary sense, as showing the
relationship between the owner and the property owned, is
impossible of application to Gods. For the Gods do not make
use of the property according to their desire nor are they seen
to act for protecting the same".
Thus, according to the texts, the Gods have no beneficial
enjoyment of the properties, and they can be described as their
owners only in a figurative sense (Gaunartha), and 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
72
the rules applicable to a transfer to a 'sentient being', and that
dedication of properties to an idol consisted in the abandonment by
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 purposes for which the dedication is designed". Vide also the
observations of Sir Ashutosh Mookerjee at p. 155. In Hindu
Religious Endowments Board v. Veeraraghavachariar ,
Varadachariar J. dealing with this question, referred to the decision
in Bhupati Nath Smrititirtha v. Ram Lal Maitra (supra) and
observed :
"As explained in that case, the purpose of making a
gift to a temple is not to confer a benefit on God but
to confer a benefit on those who worship in that
temple, by making it possible for them to have the
worship conducted in a proper and impressive
manner. This is the sense in which a temple and its
endowments are regarded as a public trust".
(iii) AIR 1970 Supreme Court 439 Kalanka Devi
Sansthan Vs. Maharashtra Revenue Tribunal Para 5 at
Page 442 The properties of an idol do not vest in the
73
manager or Shevait. It is the deity or the Sansthan which
owns and holds the property. It is only the possession and
management which vests with the manger.
Para 5 reads as under:
5. It has next been contended that in the provisions of the Berar
Regulation of Agricultural Leases Act, 1951 public trusts of
charitable nature were included among those who could claim
possession from a tenant on the ground of personal cultivation. It is
not possible to see how the provisions of a repealed statute which
was no longer in force, after the enactment of the Act, could be of
any avail to the appellant. The decision in Ishwardas v. Maharashtra
Revenue Tribunal and Ors.: [1968]3 SCR 441 = (AIR 1968 SC
1364) has also been referred to by the counsel for the appellant. In
that case it was said that under Section 2(18) of the Bombay Public
Trusts Act a trustee has been defined as meaning a person in whom
either alone or in association with other persons the trust property is
vested and includes a manager. In view of this definition the
properties of the trusts vest in the managing trustee and he is the
landlord under Clause 32 of Section 2 of the Act. As he is the
landlord, he can ask for a surrender from the tenant of the lands of
the trust "to cultivate personality". In the present case it is common
ground that the Sansthan is a private trust and is not governed by
the provisions of the Bombay Public Trusts Act. The manager of the
Wahiwatdar of the Sansthan cannot, therefore, fall within the
74
definition of the word "trustee" as given in Section 2(18) of that
Act. It may be mentioned that in Ishwardas, case : [1968]3 SCR441
= (AIR 1968SC 1364) the court refrained from expressing any
opinion on the question whether a manager or a Shebait of the
properties of an idol or the manager of the Sansthan can or cannot
apply for surrender by a tenant of lands for personal cultivation.
The distinction between a manager or a Shebait of an idol and a
trustee where a trust has been created is well recognised. The
properties of the trust in law vest in the trustee whereas in the case
of an idol or a Sansthan they do not vest in the manager or the
Shebait. It is the deity or the Sansthan which owns and holds the
properties. It is only the possession and the management which vest
in the manager.
(iv) AIR 1960 Supreme Court Page 100 -(Narayan Vs.
Gopal) Para 35 to 38 A manager of a public temple has no
right to remove the idol especially when majority of the
worshippers object to it. It quotes Kane an idol is not to be
removed permanently because that would tantamount to
establishing a new temple. However, if the public agreed to
temporary removal it could be done for a valid reason. Paras-
35 to 38 read as under:-
35. There are, however, cases in which this matter has come
up for consideration before the Courts. In Ram Soondur Thakoor v.
Taruck Chunder Turkoruttun , there was a destruction of the temple
75
by the erosion of the river on the banks of which the idol was
installed. The suit was filed by the plaintiffs for a declaration of
their right to remove the idol to their own house and to keep it there
for the period of their turn of worship. This claim was decreed. On
appeal, Dwarknath Mitter and Ainslie, JJ., interfered only to the
extent that the lower Court ought to have defined the precise period
for which the plaintiffs were entitled to worship the idol before it
could make the declaratory decree, which it had passed in their
favour. They also directed that if it was found by the lower appellate
Court that the plaintiffs and the defendants were jointly entitled to
worship the idol during any part of the period mentioned by the
plaintiffs, the lower appellate Court should not allow the plaintiffs
to remove the idol to their own house at Khatra for that portion of
time. It appears from the judgment that though the plaintiffs were
allowed to remove the idol to their own house, they were to re-
convey it at their own expense to the place where it was at the time
of the institution of the suit. The learned Judges, however, qualified
their judgment by saying that it was not contended in the case
before then that the idol was not removable according to the Hindu
Shastras.
36. In Hari Raghunath v. Anantji Bhikaji , ILR 44 Bom.
466 (AIR 1920 Bom. 67 (2), the temple was a public one.
It was held by the High Court that under Hindu law, the
manager of a public temple has no right to remove the
76
image from the old temple and install it in another new
building, especially when the removal is objected to by a
majority of the worshippers. It is interesting to note that in
this case Dr. P. V. Kane appeared, and in the course of his
argument, he stated as follows :
"According to the Pratishtha-Mayukha of Nilkantha
and other ancient works an image is to be removed
permanently only in case of unavoidable necessity,
such as where the current of a river carries away the
image. Here the image is intact. It is only the temple
that is dilapidated. For repairing it, the image need not
necessarily be removed. Even if it may be necessary to
remove the image, that will be only temporarily. The
manager has under Hindu law no power to effect
permanent removal of an image in the teeth of
opposition from a large number of the worshippers. In
the instances cited by the appellant, worshippers had
consented to the removal. Permanent removal of an
image without unavoidable necessity is against Hindu
sentiment."
(Italics hereto supplied)
Shah, J. (Crump J. concurring) observed as follows:
"It is not disputed that the existing building is in a
77
ruinous condition and that it may be that for the purpose
of effecting the necessary repairs the image may have to
be temporarily removed. Still the question is whether the
defendant as manager is entitled to remove the image
with a view to its installation in another building which is
near the existing building. Taking the most liberal view of
the powers of the manager, I do not think that as the
manager of a public temple he can do what he claims the
power to do, viz., to remove the image from its present
position and to instal it in the new building. The image is
consecrated in its present position for a number of years
and there is the existing temple. To remove the image
from that temple and to instal it in another building
would be practically putting a new temple in place of the
existing temple. Whatever may be the occasions on
which the installation of a new image as a substitute for
the old may be allowable according to the Hindu law, it is
not shown on behalf of the defendant that the ruinous
condition of the existing building is a ground for
practically removing the image from its present place to a
new place permanently. We are not concerned in this suit
with the question of the temporary removal which may be
necessary when the existing building is repaired."
The case is an authority for the proposition that the
78
idol cannot be removed permanently to another place,
because that would be tantamount to establishing a new
temple. However, if the public agreed to a temporary
removal, it could be done for a valid reason.
37. In Pramatha Nath Mullick v. Pradyumna Kumar
Mullick, 52 Ind App 245 (AIR 1925 PC 139), the deed of
trust created an injunction against the removal of the
deity. The following quotation from that deed of trust
shows the powers of the manager :
"Shall be for ever held by the said Jadulal Mullick, his
heirs, executors, administrators and representatives to
and for the use of the said Thakur Radha Shamsunderji
to the intent that the said Thakur may be located and
worshipped in the said premises and to and for no other
use or intent whatsoever provided always that if at any
time hereafter it shall appear expedient to the said
Jadulal Mullick, his heirs, executors, administrators or
representatives so to do it shall be lawful for him or
them upon his or their providing and dedicating for the
location and worship of the said Thakur another
suitable Thakur Bari of the same or greater value than
the premises hereby dedicated to revoke the trusts
hereinbefore contained and it is hereby declared that
unless and until another Thakur Bari is provided and
79
dedicated as aforesaid the said Thakur shall not on any
account be removed from the said premises and in the
event of another Thakur Bari being provided and
dedicated as aforesaid the said Thakur shall be located
therein, but shall not similarly be removed therefrom
on any account whatsoever."
The Privy Council analysed this provision, and
stated that the last condition made the idol immovable,
except upon providing for the dedicate another Thakur
Bari of the same or larger value. It observed :
"The true view of this is that the will of the idol in regard
to location must be respected. If, in the course of a proper
and unassailable administration of the worship of the idol
by the Shebait, it be thought that a family idol should
change its location, the will of the idol itself, expressed
through his guardian, must be given effect to."
Their Lordships ordered the appointment of a
disinterested next friend, who was to commune with the
deity and decide what course should be adopted, and later
the instructions of the deity vouchsafed to that
representative were carried out. In this case, there was a
family deity and there was a provision for removing the
idol to another better and more suitable Thakur Bari, if it
appeared necessary. The wishes of the deity were
80
considered and consulted. The case, however, is not quite
clear as to whether in all circumstances the idol can be
removed from one place to another.
38. The last case on the subject is Venkatachala v.
Sambasiva, AIR 1927 Mad. 465: 52 Mad. LJ 288. The
headnote quite clearly gives the decision, and may be
quoted here :
"Where all the worshippers of a temple, who are in
management of it, decide to build a new temple, the
old one being in ruins and the site on which it stood
becoming insanitary and inconvenient for
worshippers, then, unless there is clear prohibition
against their demolishing the old temple and building
a new temple, the Court is not entitled to prevent the
whole body from removing the temple with its image
to a new site in the circumstances."
Devadoss, J., quoted passages from Kamika Agama, and
referred to Prathista Mayukha by Nilakanta, Purva
Karana Agamam and Nirnaya Sindhu. He, however,
relied upon certain passages from Purva Thanthiram by
Brighu, Kamika Agama, Siddhanta Sekhara and
Hayasirsha Pancharatra, and came to the above
conclusion. The effect of the decision is that the whole
body of worshippers, if they are of one mind, can even
81
permanently remove an idol to another habitation.
AN IDOL/PUBLIC TEMPLE IS NOT SUBJECT TO
ALIENATION (Res extra-commercium)
It is a well known legal proposition that temples are sancrosanct and
there cannot be alienation of a public temple under any
circumstance being res extra commercium. Shri Ravi Shanker has
relied over following cases:-
(i) AIR 1957 Allahabad 77 : Mukundji Mahraj Vs.
Persotam Lalji Mahraj -Para 28-29 A temple has a
special sanctity distinct from other endowed property. To
alienate a temple itself is to cut at the root of the very
existence of the idol. Hindu sentiments view the alienation of
a temple as a sacrilege. The sale of temple and an execution
of a deed are totally void.
28. Whatever may be said about a permanent alienation of
endowed property other than a temple, in the very nature of
things, having regard to the duties of a Manager or a Shebait
towards the idol or institution, there can be no necessity of
alienating the temple or any portion of it in which the idol is
installed. The maintenance of the entire building is the prime
concern of the Manager or the Shebait.
(ii) The temple has a special sanctity distinct from other
endowed property. To alienate the temple itself is to cut at the
root of the very existence of the idol in the habitation
82
intended by the founder. Hindu Sentiment views the
alienation of a temple as a sacrilege. Not until the idol has
been removed from the temple in accordance with shastric
rites and has assumed a new habitation and the temple
abandoned as a place of worship may the temple be alienated
or sold in execution of a decree.
Para 31 Idol was not a party and hence the decree is
nullity. This brings us to the question of limitation. As the
idol was not properly represented in the aforesaid suits, the
decrees were nullities as against the idol. , In such cases the
principle laid down by the Privy Council in Rashidunnisa v.
Muhammad Ismail, ILR 31 All 572 (PC) (I) and by this Court
in Dwarika Halwai v. Sitla Prasad, AIR1940 All 256 (J)
applies. The decree is not merely voidable, but null and void.
The decrees being nullities can be ignored and the plaintiff is
not under the necessity of having them set aside before suing
for possession.
Limitation would run against the plaintiff from the date on
which the defendant took effective possession over the property, see
Sudarsan Das v. Ram Kirpal Das, AIR 1950 PC 44 (K). This
possession was taken in 1936. The period of limitation would be 12
years under Article 142, Limitation Act. The suit was, therefore,
well within time.
(ii) AIR 1940 Madras 208 - Kashi Mangal Nath IIIath
83
Vishnu Namboodiri vs. Pattah Ramamuni Mara Para 2
Public temple is res extra-commercium, i.e., cannot be
alienated, hence no adverse possession.
(iii) (1888) ILR 12 Bombay 247 (Manohar Ganesh
Tambekar Vs. Lakhmiram Govindram) Para 88 Temple
property is res extra-commercium.
(iv) AIR 1974 Calcutta 126 -Smt. Panna Banerjee Vs.
Kali Kinkar para 65-66 An idol can never be made a
subject matter of commerce. It is opposed to the fundamental
concept of Hindu jurisprudence. It is so repulsive to judicial
mind that every court is bound to strike it down. The deity
cannot be sold. It is not a property and none can be its owner
not even its founder.
65. Moreover the alleged custom, if any, as to the sale of
these deities is wholly void. An idol can never be the subject-
matter of commerce. The sale of an idol is prohibited by
Hindu Law, (See Khettar Chunder Ghose v. Haridas
Bundopadhyay, (1890) ILR 17 Cal 557 at p. 559). A deity is
not a chattel but a juridical person. No custom can ever
validate a sale of any deity. The legal necessity of the deity
cannot destroy the very existence of the deity by selling it in
the open market. The very thought of It is opposed to the
fundamental concept of the Hindu Jurisprudence. It is against
public policy. It is wholly unreasonable. It is absolutely
84
repugnant to the Hindu Law. It is so repulsive to the judicial
mind that every Court is bound to strike it down in limine.
(v) (1890) ILR 17 Calcutta 557 at 559 (Khittar Chander
Ghosh Vs. Haridas Bandopadhyay) Para 66 The deity
is not a property. None can own it. Para 126 idol is not a
transferable property.
(vi) AIR 1974, Supreme Court, 1932, Kali Kinkar
Ganguli Vs. Panna Banerji, Para 24-25, at Page 1936
Neither the temple nor the deities nor the Shevaiti right can
be transferred by sale for pecuniary consideration. The
transfer by sale is void in its inception.
Dr. B. K. Mukherjea doubted the propriety of these
decisions. Shri Venkatarama Aiyar as the editor of the Second
Edition of Dr. B. K. Mukherjea's Tagore Law Lectures also
expressed the same view at pages 219-220 even if the
transfer is for no consideration the transfer would be bad if it
is not in favour of those next in the line of succession.
INDIAN CLASSICAL TEXTS, THE DHARMA SHASTRAS
AND OTHER COMMENTARIES FORM THE BASIS OF
THE HINDU FAITH WHICH ARE DULY RECOGNISED IN
LAW.
The above proposition of the sanctity of Hindu Temples have
also been given recognition by Hindu scriptures and legal texts
from ancient times and have been accepted by both modern Hindu
85
texts as well as the Courts who have stressed that the conception of
Hindu Law must be judged in terms of Hindu world views very
specifically.
THE RELEVANT CASE LAWS ARE AS UNDER:-
(i) AIR 1953 Supreme Court 491 Saraswathi
Ammal and another Vs. Rajagopal Ammal Para 6
Page 494 It is correct to say that what is a religious
purpose under the Hindu Law must be determined
according to Hindu notions. So far as the textual Hindu law
is concerned what acts conduce to religious merit and
justify a perpetual dedication of property therefore is fairly
definite.
6. Now, it is correct to say that what is a religious
purpose under the Hindu law must be determined
according to Hindu notions. This has been recognised by
courts from very early times. Vide Fatma Bibi v. Advocate
General of Bombay, 6 Bom. 42(D). It cannot also be
disputed that under the Hindu law religious or charitable
purposes are not confined to purposes which are
productive of actual or assumed public benefit. The
acquisition of religious merit is also an important criterion.
This is illustrated by the series of cases which recognize
the validity of perpetual endowment for the maintenance
and worship of family idols or for the continued
86
performance of annual sradhs of an individual and his
ancestors. See Dwarkanath Bysack and another v. Burroda
Persaud Bysack and Rupa Jagashet v. Krishnaji . So far as
the textual Hindu law is concerned what acts conduce to
religious merit and justify a perpetual dedication of
property therefore is fairly definite. As stated by the
learned author Prananath Saraswathi on the Hindu Law of
Endowments at page 18 -
"From very ancient times the sacred writings of the Hindus
divided works productive of religious merit into two
divisions named ishta and purtta, a classification which has
come down to our own times. So much so that the entire
object of Hindu endowments will be found included within
the enumeration of ishta and purtta."
The learned author enumerates what are ishta works
at pages 20 and 21 and what are purtta works at page 27.
This has been adopted by later learned authors on the law
of Hindu Religious Endowments and accepted by Justice
Subrahmania Ayyar in his judgment in Parthasarathy Pillai
and another v. Thiruvengada Pillai and others . These lists
are no doubt not exhaustive but they indicate that what
conduces to religious merit in Hindu law is primarily a
matter of Shastraic injunction. To the extent, therefore, any
purpose is claimed to be a valid one for perpetual
87
dedication on the ground of religious merit though lacking
in public benefit, it must be shown to have a Shastraic
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 to religious merit. If such
beliefs are to be accepted by courts as being sufficient for
valid perpetual dedication of property therefore without the
element of actual or presumed public benefit it must at
least be 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 is cannot be
maintained that the belief in this behalf 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.
(ii) AIR 1952 Supreme Court Page 75 The State
of West Bengal Vs. Anwar Ali Sarkar At para 84
Page 103 Much of the existing Hindu law has grown up
in that way from instance to instance the threads being
88
gathered now from the Rishis, now from custom, now from
traditions.
84. I realise that this is a function which is incapable of
exact definition but I do not view that with dismay. The
common law of England grew up in that way. It was
gradually added to as each concrete case arose and a
decision, was given ad hoc on the facts of that particular
case. It is true the judges who thus contributed to its
growth were not importing personal predilections into the
result and merely stated what was the law applicable to that
particular case. But though they did not purport to make
the law and merely applied what according to them, had
always been the law handed down by custom and tradition,
they nevertheless had to draw for their material on a
nebulous mass of undefined rules which though they
existed in fact and left a vague a awareness in man's minds,
nevertheless were neither clearly definable not even
necessarily identificable, until crystalised into concrete
existence by a judicial decision; not indeed is it necessary
to travel as far afield. Much of the existing Hindu law has
grown up in that way from instance to instance, the threads
being gathered not from the rishis, now from custom, now
from tradition. In the same way, the laws of liberty, of
freedom and of protection under the Constitution will also
89
slowly assume recognisable shape as decision is added to
decision. They cannot, in may judgment, be enunciated in
static from by hidebound rules and arbitrarily applied
standards or tests.
TEXTUAL AUTHORITIES
(1) Relevant quotations from the book History of Dharma
Shastra by P.V.Kane -
P.V. Kane was not only an outstanding jurist and a brilliant
lawyer. His seminal contribution in collecting all the relevant
Dharma Shastras, Shruti and Smritis and commentaries of great
saints, Rishis, thinkers and men of great learning who have defined
the contours of Hindu law in the last thousands of years, till date
remains one of the most authoritative expositions of Hindu law and
widely quoted by Supreme Court and other High Courts. In many
ways he remains the last word on such interpretations.
(i) Quotation from Vol. II Part II Chapter XXVI-
Page 911 The Mitakshara on Yajnavalkya II 186 says that the
king should sedulously safeguard all rules about the pastures for
cows (in a village) or about the preservation of tanks and temples.
Page 911 Manu IX 280 requires the king to pronounce the death
sentence on those who break into a royal store house or an armoury
or a temple and prescribed that the breaker of an image shall repair
the whole damage and also pay a fine of 500 Panas.
Page 911 and 912 Kautilya III 9 prescribes punishment for
90
encroachment on temple.
(ii) Vol. III Page 327-328 Narad IV, Page-83,
emphatically states that women's property (Streedhana)
and stated property (land) is not lost even after
hundreds of years when it is enjoyed without title.
Katyayana (330) adds to the above list Temple
Property and what is inherited from the father or
mother. All systems of jurisprudence throw
protection round the interests of minors, persons of
unsound mind and others similarly situated and
provide longer periods of possession for loss of their
right.
(1991) 4 All England Reports 638 Bumper
Development Corporation Vs. Commissioner of
Police of the Metropolis and Other (Union of India
and Others Claimants). In this case, the Court of
Appeal in England held that a ruined Hindu temple
had a better title over Shiv Nataraja than a British
company which has purchased it for the purpose of
auction.
(2) Quotation from Yajnavalkya Smriti from its translation into
English by Manmatha Nath Dutt
Sutra 343 When a foreign kingdom is brought under
subjection he should observe the conduct, law and
91
family practices obtaining in the4 same kingdom.
Even in the Mulla's Hindu Law at Page 84, Chapter-II,
Source of Hindu Law, Yajnavalkya 343 is quoted -
Whatever customs, practices and family usages
prevail in a country shall be preserved intact when
it comes under subjection by conquest.
THE ABOVE AUTHORITY BY EMINENT SAINTS AND
RISHIS WHO WERE GREAT JURISTS OF HINDU LAW
HAS ALSO BEEN RECOGNISED BY MODERN
COMMENTARIES.
Even the latest research and the modern historical view of Hindu
Law clearly upholds that the sacredness and sanctity of Hindu
Temples were protected during Islamic Rule in India, or where the
temples were and the classical Hindu literature and customary law
was protected both during Islamic Rule and British Rule.
RELEVANT TEXTS AND CASE LAW RELIED BY SHRI
RAVI SHANKER ARE AS UNDER:-
(I) Mayne's Hindu Law & Usage (16
th
Edition)
Chapter II, Page 16, Para 13 The list of law givers
The Smriti of Yajnavalkya gives a list of 20 sages as
law givers Manu, Atri, Vishnu, Harita, Yajnavalkya,
Usana, Angiras, Yama, Apastamba, Samvarta,
Katyayana, Vrihaspati, Gautama, Vasistha and others as
the propounders of Dharma Shastra.
92
This quote clearly shows the authority of the earlier scriptures
cited above even in today's Hindu Law.
(ii) In the same book, in Chapter-I (The Nature and
Origin of Hindu Law) at Para 4, Page 3, it is clearly
mentioned that even after the establishment of
Mohammedan rule in the country the Smriti law
continued to be fully recognized and enforced.
(iii) There is a very extraordinary book (The
Classical Law of India by Robert Lingat translated
by J. Duncan M. Derrett). It is to be noted that Robert
Lingat who was a professor at Sorbonne University,
Paris, was a very well-known author of many works on
Hindu law. He is rated very high. Similarly, Duncan
Derrett is equally a highly respected jurist widely
recognized and he has written among others two well-
known books Hindu Law Past and Present (Calcutta
1957) and Religion, Law and State in India (1968).
(iv) Therefore, the work of an outstanding authority
on Hindu law which was written in French has been
translated by equally outstanding jurists on Hindu law.
The conclusion portion of the said book is to be found
from pages 257 to 272. Their conclusion is the same
that the classical Hindu law also remained operational
during the Mughal period.
93
(V) AIR 1952, Allahabad 825-S. Darshan Lal Vs.
Dr. R.E.S. Daliwall, Para 15-16. The same principle is
applicable in English law as well.
16. The matter may be considered upon broader
principles. According to English law, Englishmen carry
English law with them in countries which were
formerly uninhabited and are peopled by them. English
common law as well as Statute law brought into force
up to the date of the settlement is applicable to such
colony to the extent to which such laws are suitable to
the conditions of the colony. Statutes passed
subsequently apply to the colony only if they are made
expressly applicable to it. In an inhabited country,
however, obtained by conquest or cessation, law
already prevalent therein continues to prevail except to
the extent to which English law has been introduced
and also except to the extent to which such law is not
civilised law at all, vide Yeap Cheah Neo v. Ong Cheng
Neo (1875) 6 p. c. 381. India fell in the category of
conquered or ceded country because it was already
inhabited and civilised law prevailed therein before the
advent of the British and, therefore, prima facie there
can be no presumption that English law applied to
Indians in India.
94
(VI) 84 Ind. Cas. 759- Advocate General of
Bombay Vs. Yusuf Ali Ebrahim, Para 95 to 109:
95. Now coming down to first principles, British
Government brings to its subjects, as a general rule,
liberty of the person, liberty of conscience, liberty of
speech, liberty to own property, and last, but perhaps
not least, equality of man in the sight of the law. But
the liberty granted to one subject must not be used to
the detriment of another subject. The principle sic utere
tuo ut alienum non loedas is applicable to rights as well
as property. In other words, liberty must not degenerate
into license. Hence the law has to impose restraints on
those who misuse the privileges of a free citizen. The
slanderer, for instance, is restrained by the law of libel,
the thief by the Indian Penal Code. But the fact that
such restraints exist and apply to all citizens alike is not
a slur upon the honest citizen. It is unthinkable that His
Grace the Archbishop of Canterbury, for instance,
would commit a criminal offence, but he is subject to
the Criminal Law all the same, and this act involves no
slur. So, too, in theory the Mullaji Saheb is amenable to
the Criminal and Civil Law of this country, through it is
unthinkable that he would commit any offence. A
striking instance of his is the attempt made by the
95
Dawoodi Borah Priest to put the 49th Dai into prison
for failure to pay a judgment debt, and which I have
already referred to. (See Ex. B. E5)
96. Similar principles apply, I think, to trustees. The
foundation of the law of trusts is that the trustee is
trusted. Hence the greater the trust, the more unthinkable
does it become that the trustee will violate it. And yet the
law has to impose restraints on the guilty or negligent
trustee and to give its assistance to any honest trustee
who requires it. But the existence of these civil restraints
is no more a slur upon the honest trustee, than the
existence of criminal restraints is upon the honest
citizen. Hence in my judgment the infallibility of any
particular individual does not affect his theoretical legal
position in the slightest. In short the test of a trust is not
whether the alleged trustee can ever commit a breach of
trust, which is what the defendants contention in effect
amounts to. His Holiness the Pope of Rome claims to be
infallible and immaculate, and Iris followers are
numbered by the million and are found in ail parts of the
globe. And yet in Moore v. The Pope (1919) 1 Ir. R.
316, His Holiness submitted to the jurisdiction of the
Irish Courts and contented that a bequest to him to be
applied at his sole, discretion in carrying out the duties
96
of his sacred office was a valid charitable bequest. If the
defendants are correct, the Holy Father ought to have
strongly protested against any suggestion that he could
be a trustee of a charitable fund. He was held to be a
trustee but that the trust was invalid.
97. In 1 Blackstone's Commantaries 112 (which is
quoted in Halsbury's Laws of England, Volume 11, page
717), I find the following passage:
In respect of these lands the King as supreme
Ecclesiastical head was entitled to the
Ecclesiastical emoluments in trust that he should
distribute the same for the good of the Church.
98. This, of course, was before the days of Governors
of Queen Anne's Bounty and Ecclesiastical
Commissioners and Charity Commissioners, who now
relieve the burden which would otherwise fall upon the
Crown, but it shows that even in olden days the Crown
thought it no slur to be regarded as a trustee. As the
present is not a case of Sovereign rights, I need not
consider what remedies, if any would be open in such a
case to a subject who alleged a misapplication of such
emoluments.
99. Nor has the Mullaji or his predecessors been
ashamed in other days to be called trustees. In the book,
97
Ex. A. L., to which I attach great importance, the 48
th
Dai describes the Dai and his duties as follows:
He is the trustee of the public funds which it is his
duty to dispose of economically and at his discretion as
directed by the sacred rules, in relieving the distressed
and needy so as to save them from sordid beggary, and
paying the expenses incurred by them and his deputies
and discharging their sacred duties and in keeping
schools and institutions for religious and secular
instructions.
100. In Ex. 16, which is a later edition by the present
Mullaji, the corresponding passage runs:
He is the trustee of the public funds of the
community which it is his duty to dispose of
economically as directed by the sacred Laws of Islam.
101. The defendants have relied on Her late majesty
Queen Victoria's Proclamation of November, 1, 1858.
102. His Lordship quoted the portion of the
Proclamation dealing with religious toleration and then
proceeded as follows.
103. If, in the words of the Proclamation, all alike are
to enjoy the equal and impartial protection of the law,
charitable trusts must be protected just as other trusts
are. This is no breach of the rest of the Proclamation.
98
Accordingly, Section 14 of the Religious Endowments
Act, 1863, gives some protection as regards certain
mosques and other places of worship. Section 92 of the
C.P.C. Is still wider in its application. And recently in
response to a public demand for still greater protection
for Indian religious and other charities, the Charitable
and Religious Trust Act, 1920, has been passed.
Nowhere do I find any express exemption of Dawoodi
Borah mosques or other charities.
104. But speaking very generally, the protection of the
law in religious matters of confined to the protection of
religious property or a religious office. The Court will
not decide mere questions of religious rites or
ceremonies (see C.P.C. Section 9), nor will it, I think,
pronounce on any religious doctrine see Attorney-
General v. Pearson (1917) 3 Mer. 353 at P. 409 : 17 R. R.
100 : 36 E. R. 135 unless it is necessary to do so in order
to determine rights to property, as in Free Church of
Scotland (General Assembly of ) v. Oyertoun (Lord)
(1904) A.C. 515 : 91 L. T. 395 : 20 T. L. P. 730. As put
by Mr. Justice Melvill in Vasudev v. Vamnaji (5 B. 80 at
PP. 81, 82 : 5 Ind. Jur. 427 : 3 Ind. Dec. (N. S.) 55. It is
the policy of the State to protect all religious, but to
interfere with none.
99
(VII) 1 Ind. Cases 834-Jamshedji Cursetjee
Tarachand Vs. Soonabai, Paras 166 to 171:
166. Now, in this case it is proved beyond doubt that
according to the doctrines of the Zoro astrian religion the
performance of the Muktad ceremonies is enjoined-- that
it is the duty of all Zoroastrians to have these ceremonies
performed. The Court has before it the knowledge what
ceremonies are obligatory and what are optional-- the
Court has before it the prayers ordained to be recited
during the ceremonies-- the Court has before it the
evidence of witnesses proving that these ceremonies have
to be performed by priests who are paid for doing so and
such honoraria as they receive form a portion of their
income, and are their ordinary means of livelihood. The
Court is then in a position to judge how far the witnesses
are right, when they say the performance of such
religious ceremonies amounts to an Act of Divine
worship which is believed by the community to bring
down to the world both temporal and spiritual benefits--
not only on those that perform the ceremony--but on the
whole community--on their country and their
Sovereign--on all mankindon the Universe. If this is
the belief of the community--and it is proved
undoubtedly to be the belief of the Zoroastrian
100
community--a secular judge is bound to accept that
belief--it is not for him to sit in judgment on that belief--
he has no right to interfere with the conscience of a donor
who makes a gift in favour of what he believes to be in
advancement of his religion and for the welfare of his
community or of mankind, and say to him, You shall not
do it. This court can only judge of the efficacy of such
gifts in procuring public benefits by the belief of the
donor and of the community to which he belongs--the
belief of those who profess the religion-- the ordained
ceremonies of which the donor desires performance.
167. Lord Justice Fitz Gibbon, speaking on the point,
says (at p. 279):
In determining whether the performance of any particular
rite promotes any particular religion, and benefits the
members of the Church or denomination, or body, who
profess it, the secular Court must act upon evidence of
the belief of the members of the community concerned. It
can have no other guide upon that subject.
The exclusiveness, the vagueness, or the self-sufficiency
of principles religiously held by particular creeds,
whether they rest on dogma, or on conscience, cannot
exclude those who profess any lawful creed from the
benefits of charitable gifts.
101
It would be strange, indeed, if bequests for the promotion
of total abstinence, or even vegetarianism; for the
maintenance of a place of worship, or of a minister for a
small congregation of peculiar people; for the
dissemination of the works of Joanna Southcote; or for
the prevention of cruelty to animals, should be held, as
they have been, to be charitable objects, if a provision by
a Roman Catholic, for Roman Catholics, for the
celebration of the Mass, more especially in Ireland,
where 'Superstitious Uses' are not mala prohibits, were to
be excluded from that category.
168. To this I would add that it would be stranger still
in a country like India, where superstition abounds,
where each community is by the Crown left free to
profess what religion it pleases-- from where the doctrine
of superstitious uses is rigorously excluded, where trusts
of lands and moneys in perpetuity for idols and similar
trusts are recognised and enforced by the Courts-- that a
Parsi professing the Zoroastrian religion should be
precluded from making a gift for the performance of
religious rites and ceremonies, which he is enjoined by
the religious he professes to perform, and the non-
performance of which, according to his religion, is a great
sin. Why should he be precluded from setting apart a
102
portion of his property and devoting it to a purpose which
he believes would result in benefits to himself, his family
and his community-- in promoting the religion he
professes and saving his descendants from committing a
sin should circumstances place them in a position of
inability to perform these ceremonies for want of means.
On this point in the same case Lord Justice Fitz Gibbon, a
Protestant Judge, observes (at p. 280):
Speaking with all reverence of a faith which I do not
hold, touching the very 'Mystery of Godliness', I could
not impute to any individual professing the Roman
Catholic religion that he regarded a gift of money for
Masses as a means of seeming from such a Sacrifice a
private and exclusive benefit for himself alone, as being
much less than blasphemy; and, as I understand the
proved doctrine of the Church, it would certainly be
heresy. But the hope or belief that, in some shape or form,
her or hereafter, a man's good works will follow him-- an
ingredient of selfishness in that sense-- enters into almost
every set of charity; and if the act is done in the belief
that it will benefit others; for example, in the belief that
he that gives to the poor lends to the Lord, it can be none
the less charitable because the giver looks for his reward
in heaven.
103
169. Lord Justice Fitz Gibbon ends his judgment by
saying:
The fruition of faith, 'the evidence of things not seen', is
hidden from humanity. It is not within the power of any
earthly tribunal to entertain the question whether these
propositions are true. But it is for us to decide that belief
in their truth is part of the faith of the members of the
Church which has laid them down.
170. Speaking of the belief of the Roman Catholics in
the efficacy of the performance of Masses being benefits
to the community, Lord Justice Holmes says (at p. 286):
A temporal Court in Ireland, having no authority to
decide for itself whether it was true or not, must take as
its guide the belief of the Church of which the testatrix is
a member.
171. I would like here to say that so far as I am
concerned, I have scarcely ever come across a case in a
Court in another country bearing closer resemblance to
facts and contentions of a case before our Courts than the
case of O'Hanlon v. Logue (1861) 30 Beav. 360 at p. 362
bears to the present case. It must be remembered that it is
decided by the tribunal having the highest jurisdiction in
a country in which religious matters bear remarkable
analogy to this country-- Ireland like India having no
104
established Church, no State religion, and where the
doctrine of superstitious uses has no application. It is
decided as recently as 1906, its pronouncements are clear
and emphatic; there is no element of doubt or a note of
uncertainty in the judgments pronounced; every case of
importance on the subject, ancient or modern, is carefully
considered and the question before the Court finally and
definitely settled. Judgments such as those pronounced in
this case must command the respectful attention of other
Courts deciding similar questions. This case alone is
sufficient to set at rest all doubts and remove all
difficulties in the decision of this case, and enables me to
answer the question before me-:
Whether the Trust declared in respect of the Government
Promissory Notes for 15,000 Rupees mentioned in the
plaint are valid in the affirmative with considerable
confidence. I hold that Trusts and bequests of lands or
money-- for the purpose of devoting the incomes thereof
perpetuity for the purpose of performing Muktad, Baj,
Yejushni and other like ceremonies, are valid charitable
bequests, and as such exempt from the application of the
Rule of Law forbidding perpetuities.
It is, therefore, very clear that the injunction against
destruction of Hindu temples has been maintained even
105
during the times of Muslim rule in India and, therefore, the
question of destruction of the preexisting Hindu temple and
construction of the mosque on the said spot therefore cannot
be said to be acceptable and is null and void.
IMPORTANCE OF RAM JANMASTHAN IN HINDU
RELIGION
There is voluminous evidence available on record both
documentary and oral which substantially establish that Lord Ram
was born at the place which the Hindus believe to be the Rama
Janmasthan since times immemorial. The worship, divine character
and sacred status has been recognized not only be the classical
literature, tradition but also by series of travel records of foreigners,
gazetteers as also foreign authorities. Some of the said Hindu
authorities and scriptures are quoted below:
SACRED SCRIPTURES
(ii) Valmiki Ramayana- The Vlamiki Ramayana is
integral to Hindu faith and ethos which deals
elaborately with the birth of Lord Ram and the entire
life of Prabhu Ram thereafter becomes a part of Indian
psyche passed on from generations to generations.
There is a very famous book Sanskriti Ke Chaar
Adhyay by the very well-known Hindi poet and
writer ramchari Singh Dinkar. The foreword of this
book was written by Jawahar Lal Nehru as the Prime
106
Minister when the book was first published in 1956.
The learned author in his book, reprinted in 2009, at
page 72, has mentioned the profound impact which
Valmiki Ramayana had created in the entire country
leading to the story of Lord Rama being reproduced in
many languages of India and outside. He particularly
mentions Kamban Ramayana (Tamil), 12
th
Century,
Telugu Dwipad Ramayana (12
th
Century), Malayalam
Ramacharitam (14
th
Century), Bangla Kritibas
Ramayana (15
th
Century), Oriya Balaram Das
Ramayana (15
th
Century), Kannada Torave Ramayana
(16
th
Century), Hindi Ramcharit Manas (16
th
Century)
and Marathi Bhavarth ramayana (16
th
Century). The
learned author also quotes that Rama Kavya was
equally popular in the literature of Tibet, Sri Lanka,
Khotan Indo-China, Burma and Sumatra and Kashmir
and Indonesia.
Therefore, the Valmiki Ramayana, in fact became the symbol
of India's cultural unity and shining symbol of Hindu faith. In
effect, if became the pivot of Sanatana Dharma much before the
arrival of Mughals in India. The impact of valmiki Ramayana was
felt whereever the Sanatana Dharma went.
(iii) Quotations from Valmiki Ramayana: Chaturvedi
Dwarka Prasad Sharma has translated Valmiki
107
Ramayana which was published in the year 1982 by
Ram Narayan Lal Publisher, Allahabad. It contains the
relevant Shlokas as also its Hindi translation. In the
Bal Kand, Chapter-18, Shlok Nos. 8 to 18, at Pages 144
and 145 of the said book, contains the entire story as
recited in Valmiki Ramayana about the birth of Lord
Ram. It specifically mentions about the astrological
alignment at the time of Lord Ram's birth, the
celebrations in Ayodhya. Shlok 12 particularly
mentions that He was the manifestation of Lord
Vishnu.
(iv) There is another book Sri Ramayana
Mahakavya by Mahakavi Valmiki, edited by Pt.
Shripad Damodar Satvalekar. It also mentions the
same thing, i.e. the relevant Sanskrit Shloka of Valmiki
Ramayana and its Hindi translation.
(v) In the Skanda Puran, in Chapter Ayodhya
Mahatmya, the entire Shloka 13 to 20 mention the
details about birth of Lord Ram and the highly sacred
and divine character of Ayodhya and the janmasthan.
(vi) In fact, the English translation of the Skanda
Puran has been published by Motilal Banarsidas as
a part of Ancient Indian Tradition and Mythology
series. In fact the book has been recognized by the
108
UNESCO Collection of Representative Works and also
jointly sponsored by the Government of India. It has
been translated and annotated by Dr. G.V. Tagare. Vol.
55, Part-VIII, Chapte-X, Pages 216 to 218, Shlokas 13
to 25, mentions specifically vide Sholka 18-19 by
Agastaya that to the North-East of that spot is the place
of birth of Rama. This holy spot of the birth is, it is
said, is the means of achieving salvation. It further
says, in Shlokas 22-25, that visiting the place of birth
one attains the merits of ascetics. Further, vide Shloka
20, it is specifically mentioned that by visiting it one
attains Moksha, i.e., escape from rebirth.
(vii) The above two scriptures and texts embody not
only the essence of the birth of Lord Ram, but highlight
with due sanction of Shastric texts the divinity and
sanctity which attaches to the place of birth of Lord
Ram and the blessings one attains by having the
Darshan of the same. They form an integral part of
Hindu faith and practiced as such even till today.
(viii) The Bhagavad Gita, as is well known, is the
word of God. In fact, Sri Sri Paramahansa Yogananda
of the Yogada Satsang Society of India, has published
the Bhagavad Gita in two volumes along with the
Sanskrit verse and its english translation. The two-
109
volume book was published in the year 2002. In
Chapter-X, Verse 31, Page 797, Bhagwan tells Arjun
like this: Among purifiers I am the breeze; among
wielders of weapons, I am Rama; among aquatic
creatures, I am Makara (Vehicle of the god of the
ocean); among streams, I am Jahnavi (the Ganges).
Same text with the same meaning quoted in Bhagvad
Gita by Swami Prabhupad at pages 541 and 542
Chapter 10.
SOME OTHER DOCUMENTARY EVIDENCE ABOUT
PLACE OF BIRTH OF LORD RAM
There are also numerous accounts which clearly evidence that
the Hindus continued to worship the Ram Janambhumi holy and
sacred even after the disputed structure was constructed on it.
These accounts are by foreign travelers and British officials who
however shocked to see the continued struggle the Hindus waged to
recover their holiest of holy shrines, and who were not Hindus, and
therefore, could be termed as independent observers.
SOME ACCOUNTS OF THE SANCTITY AND SACREDNESS
OF THE RAM JANAMBHUMI
(ix) The sacred character of such faith and its continued
practice has also been confirmed by historical accounts as
also by public gazetteers. In this connection, the account
of Le Pere Joseph Tieffenthaler, during his visit to
110
India is the 18
th
Century, (Exhibit No. OOS-5-133) is
of great significance. He had written the account of his
travel in a book in French which was published in the
year 1786 CE. He was an Austrian Jesuit priest. He also
visited Ayodhya. The relevant pages of this book were
also translated into English by the Government of India
under orders of the Court. At page 254, it clearly
mentions what Hindu calls Bedi that is the cradle where
Befchen was born in the form of Ram besides his three
brothers. According to another belief, Babur got this
place destroyed in order to deny them the opportunity of
practicing their superstitions. He also mentions the place
where the native house of Ram existed people go around
and prostrate on the floor. On the 24
th
of Chait Month, a
big gathering of people takes place to celebrate the
birthday of Ram, so famous in entire India.
Therefore, the above documentary evidence shows
that even after more than 258 years of the
construction of the disputed structure, people of the
country held it to be sacred, prostrated and there was
big assembly in the month of Cahitra, i.e., Ram
Navami. This account is confirmed by a non-Indian.
(x) A Gazetteer of the territories under the
Government of the East India Company, by Edward
111
Thornton (Exhibit No. OOS-5-5), was published in
1858. At page 739 about Oud, there is a mention of the
cradle where Lord Rama was born as the 7
th
Avatar of
Vishnu and is abundantly honoured by the pilgrimages
and devotions of Hindus. It also mentions that Ayodhya
is considered by the best authorities to be the most
ancient city in Hindustan.
(xi) The P. Carnegie Report (1870), (Exhibit No.
OOS-5-49): It mentions at Page 5 that Ajudhia is to
Hindus what Mecca is to Mohammedans, Jerusalem to
Jews.
(xii) Gazetteer of Province of Oud, Vol.-I, 1877,
(Exhibit No. OOS-5-7). It clearly mentions the
Janmasthan temple on which Babur built the mosque, i.e.
at the Janamsthan, It also mentions about the continuous
struggle of Hindus to reclaim it.
(xiii) Report of the Settlement of Land Revenue in the
Faizabad District by A.F. Millett, Officiating
Settlement Officer, 1880: At Page 234, (Exhibit NO.
OOS-5-8), the report mentions about the Janamasthan
temple wherein Emperor Babur built the mosque.
(xiv) The Imperial Gazetter of India, Provincial
Series, 1905, (Exhibit No. OOS-5-10) The present town
stretched island from a high bluff overlooking the
112
Ghaghra. At one corner of the vast mound is the holy spot
where Rama was born where Babur built a mosque.
(xv) Faizabad Gazetteer by H.R. Nevill, ICS, 1905, at
page 173, (Exihibit No. OOS-5-11), specifically
mentioned that the Janmasthan was in Ramkot, the
birthplace of Rama and Babur in 1528 destroyed the
ancient temple and on its site built a mosque known as
Babur's mosque.
(xvi) Barabanki Gazetteer edited by H.R. Nevill,
1903, Page 169, reiterated that there was continuous
struggle of Hindus to reclaim the ground on which
formerly stood the Janmasthan temple.
(xvii) Faizabad Gazeeteer by H.R. Nevill, ICS 1905,
Pages 173-174, (Exhibit NO. OOS-5-11), reiterates the
facts of the existence of the Rama Janmasthan temple and
destruction of the same by Babur in 1528 and the
continuous struggles of Hindu to reclaim the same.
(xviii) Faizabad Gazetteer by H.R. Nevill, 1928,
(Exhibit NO. OOS-5-12), the said story is reiterated.
(xix) Uttar Pradesh District Gazetteers Faizabad,
(Exhibit No. OOS-5-13), published by the Government
of Uttar Pradesh in 1960 reiterated the same fact in page
352.
(xx) An article titled Babur and the Hindus by S.K.
113
Banerji, published in the Journal of the United
Provinces Historical Society published in July 1976 at
Page 76, specifically mentions: The present Jami
Masjid at Ayodhya was built in Babur's time on a site
sacred to the Hindus as Rama's birthplace.
(xxi) Even the New Encyclopedia Britannica, Vol. IX,
15
th
Edition, at page 916, describes Rama as the seventh
incarnation of Lord Vishnu which appears as such in the
Ramayana. Similarly, in Volume-I, at page 751, Ayodhya
is mentioned wherein it is specifically mentioned that the
Baburi Masjid was built in the early 16
th
Century by the
Mughal Emperor Babur on a site traditionally identified
as Rama's birthplace and at the location of an ancient
Hindu temple, the Rama Janma Bhumi.
The above are only a sample of evidence available on record.
Yet, they show a continuity since times immemorial about the
divinity attached to the place Rama Janmasthan not only in the
scriptures, worship and devotion in practice, but also a recurring
continuity even after the construction of the disputed structure.
Under the orders of this Hon'ble Court, the
Archaeological Survey of India was directed to undertake an
exhaustive excavation to find out as to whether there existed
any temple/structure underneath the disputed structure. The
report of the expert agency, that is the ASI, clearly confirms the
114
existence of a Hindu religious structure dating back to
thousands of years. This evidence too confirms that the disputed
site was and is the site of a temple and the Hindus have always
believed the same to be the birthplace of Lord Ram.
EVIDENTIARY VALUE OF THE ABOVE DOCUMENTS
The said documents being official documents of the Government
have been consistently held by the Court that they are admissible in
Court as evidence.
(1) Section 57 of the Indian Evidence Act, 1872,
mentions the facts of which Court must take judicial
notice. Section 57(13) further provides that in all these
cases and also on all matters of public history, literature,
science or art the Court may resort for its aid to
appropriate books and documents of reference.
(ii) The entire Valmiki Ramayana, Skanda Puran, Gita
and the Traveller's accounts mentioned above fall in that
category.
(iii) Further, under Section 81 of the Evidence Act,
there is a presumption as to Gazettes.
(iv) RELEVANT CASE LAW ON THE SUBJECT
ARE AS UNDER:-
(a) (1990) 2 SCC, Page 22, Vimla Bai Vs. Hiralal
Gupta, Para 4 & 5, at Pages 27-28 The statement of
fact contained in the official Gazettee in the course of the
115
discharge of official duties or on historical facts in some
cases is best evidence of facts stated therein.
5. The Statement of fact contained in the official Gazette
made in the course of the discharge of the official duties
on private affairs or on historical facts in some cases is
best evidence of facts stated therein and is entitled to due
consideration but should not be treated as conclusive in
respect of matters requiring judicial adjudication. In an
appropriate case where there is some evidence on record
to prove the fact in issue but it is not sufficient to record a
finding thereon, the statement of facts concerning
management private temples or historical facts of status
of private persons etc. found in the Official Gazette may
be relied upon without further proof thereof as
corroborative evidence. Therefore, though the statement
of facts contained in Indore State Gazette regarding
historical facts of Dhangars' social status and habitation
of them may be relevant fact and in an appropriate case
the Court may presume to be genuine without any further
proof of its contents but it is not conclusive.
(b) 1995 Supplementary (1) SCC Page 485,
Balashankar Mahasankar Bhattjee and Others Vs.
Charity Commissioner, Gujarat, Para 22, The
Gazettee of the year 1879 is admissible being official
116
record evidencing public affairs and the Court may
presume their contents as genuine especially about the
existence of an old temple.
22. The contention of Sri Yogeshwar Prasad that the
Asstt, Charity Commissioner has failed to prove that
Kalika Mataji temple is a public trust; contrarily the
evidence on records, namely the 'Will' of Bai Diwali,
widow of N. Girjashankar, establishes that the lemple and
its properties Were always treated as private properties. It
would get fortified and gets corroborated by decrees in
civil suit No. 439/1985, one of the legatees sought to
annual the Will in Exhibits 10, 59 and the decree in that
behalf. The Civil Suits Nos. 353/93, Ex. 24 and the Civil
Suit No. 439 of 1885, Ex 26 and the Civil Suit Nos. 904
of 1903 and 910 of 1903: Ex 52 and Ex. 54, Civil Suit
No, 912 of 1903, Ex 55 would establish that the
appellant's family had always treated the temple and the
lands attached to temple as private properties. It has also
been further contended that the entry into the temple was
subject to permission and the devotees were not allowed
to have pooja, but have darshan Only. These
circumstances have duly been taken into consideration by
the District Judge while the High Court had not
considered them in proper perspective. We find no force
117
in the contention, It is seen that the Gazette of the
Bombay Presidency, Vol. Ill published in 1879 is
admissible under s.35 read with s.81 of the Evidence Act,
1872. The Gazette is admissible being official record
evidencing public affairs and the court may presume their
contents as genuine. The statement contained therein can
be taken into account to discover the historical material
con-tained therein and the facts stated therein is evidence
under s.45 and the court may inconjunction with other
evidence and circumstance take into consideration in
adjuding the dispute in question though may not be
treated as conclusive evidence. The recitals in the Gazette
do establish that Kalika Mataji is onlhe lop of the hill.
Mahakali temple and Bachra Mataji on the right and left
to the Kalika Mataji. During Moughal rule another Syed
Sadar Peer was also installed there, but Kalika Mataji was
the chief temple. Hollies and Bills are the main
worshipers. Oh full Moon of Chaitra (April) and
Dussehra (in the month of October), large number of
Hindus of all classes gather there and worship Kalika
Mataji, Mahakali, etc. After the downfall of Moughal
empire, Marathas took over and His Highness Scindias
attached great importance to the temple. One of the
devotees in 1700 offered silver doors. The British
118
annexed the territory pursuant to the treaty between Her
Majesty's Government of India and His Highness Scindia
on the 12th December, I860, A condition was imposed in
the treaty for continued payment of fixed cash grants to
all the temples from the Treasury and that British
emperors accepted the condition. Regular cash grants of
fixed sums were given to all the temples by Scindias and
British rulers, as evidence by exhibits 27, 29 and 30. The
historical statement of noted historian, stated by the High
Court, by name M.S. Commissionaria in his Vol. I of
1938 Edition corroborates the Gazette on the material
particulars, which would established that the temple was
constructed on the top of the hill around 14th century and
the people congregate in thousands and worship, as of
right, to Kalika Mataji and other deities. R.N. Jogelkar's
Alienation manual brought up in 1921 in the Chapter 5
Devas-tbana also corroborates the historical evidence. It
is true that Bai Diwali in her Will, Ex.22 treated the
temple and the properties to be private property and
bequeathed to her brother and the litigation ensued in that
behalf. At that time, as rightly pointed out by the High
Court, the concept of public trust and public temple was
not very much in vogue. Therefore, the treatment meted
out to these properties at that time is not conclusive. On
119
the other hand the fixed cash grants given by a Rulers
Scindias and the successor British emperors, the large
endowment of lands given to Kalika Mataji temple by the
devotees do indicate that the temple was treated as public
temple. The appropriation of the income and the inter se
disputes in that behalf are self serving evidence without
any probative value. Admit-tedly, at no point of time, the
character of the temple was an issue in any civil
proceedings. All the lands gifted to the deity stand in the
name of the deities, in particular large extent of
agricultural lands belong to Kalika Mataji. The entries in
Revenue records corroborated it. The Gazette and the
historical evidence of the temple would show that the
village is the pilgrimage centre. Situation of the temples
on the top of the hill away from the village and worshiped
by the people of Hindus Community at large congregated
in thousand without any let or hindrance and as of right;
devotees giving their offerings in large sums in discharge
of their vows, do establish that it is a public temple. It is
true that there is ho proof of dedication to the public. It is
seen that it was lost in antiquity and no documentary
evidence in that behalf is available. Therefore, from the
treatment meted out to the temple and aforesaid evidence
in our considered view an irresistible inference would be
120
drawn that the temple was dedicated to the Hindu public
or a section thereof and the public treat the temple as
public temple and worship thereat as of right. It is true
that there is evidence on record to show that there was a
board with inscription thereon that "no entry without
permission" and that only Darshan was being had and
inside pooja was no permitted. But that is only internal
regulation arranged for the orderly Darshan and that is
not a circumstance to g o against the conclusion that it is
a public temple. Enjoyment of the properties and non-
interference by the public in the management are not
sufficient to conclude mat the temple is a private temple.
It is found by the District Court and the High Court that
the appellants are hereditary priests and when the public
found that they are in the management of the properties,
they obviously felt it not expedient to interfere with the
management of the temples. It is seen that the High Court
considered the evidence placed on record and has drawn
the necessary conclusions and inferences from the proved
facts that kalika Mataji temple is a public temple. It is a
finding of fact. As regard the oral evidence the High
Court rightly appreciated the evidence and it being a
question of fact, we find no error in the assessment of the
evidence by the High Court.
121
(c) AIR 1967 Supreme Court, 256, Srinivas Das Vs.
Suraj Narayan Das, Para 26 The Gazetteer can be
consulted as providing historical material and the practice
followed by the Math and its head. The Gazetteers can be
consulted on matters of public history.
LORD RAM AS THE AVATAR OF VISHNU HAVING
BEEN BORN AT AYODHYA AT THE JANMASTHAN IS
ADMITTEDLY THE CORE PART OF HINDU BELIEF AND
FAITH WHICH IS IN EXISTENCE AND PRACTICED FOR
THE LAST THOUSANDS OF YEARS. THE HINDU
SCRIPTURES ALSOS SANCTIFY IT. ARTICLE 25 OF THE
CONSTITUTION BEING A FUNDAMENTAL RIGHT
ENSURES ITS PRESERVATION AND NO RELIEF CAN BE
TAKEN BY THE COURT WHICH SEEKS TO RESTRICT
OR ALTOGETHER EXTINGUISH THIS RIGHT.
The fact that Ram Janambhumi is an integral part of Hindu
Religion and the right to worship there is a fundamental right of the
Hindu religion and can be enforced through a suit can be clearly
made out through a number of decisions of the Hon'ble Supreme
Court. RELEVANT CASE LAW
(i) 1995 Supplementary (4) SCC, Page 286 Most
Rev. P.M.A. Metropolitan and Others Vs. Moran Mar
Marthoma and Another, Para 43 at Page 327 and Para
89, Page 361 the Civil Courts have jurisdiction to
122
entertain the suits for violation of rights guaranteed under
Article 25 and 26 of the Constitution of India. The
expression 'civil nature used in Section IX of the Civil
Procedure Code is wider than even Civil Proceedings and
thus extends to such religious matters which have civil
consequences.
43. In reading Section 9 widely and construing it
expansively the jurisdiction to entertaina suit for
declaration whether the Church was episcopal or
congregational and whether the appellants could have
been ordained by the Patriarch when it was contrary
to the earlier decision given by this Court that the
ordination was required to be approved by Synod, the
court is not being asked to adjudicate on faith but
whether the exercise of right in respect of faith was
valid. The Grace no doubt comes from Patriarch and on
that there is no dispute but whether the Grace came in
accordance with the Canon or the Constitution is
certainly a matter which would fall within Section 9
C.P.C. Status and office are no doubt different but what
was challenged is not the status or faith in Patriarch
but the exercise of right by Patriarch which interfered
with the Office of Cathelico held validly. Apart from it,
as stated earlier, after coming into force of the
123
Constitution Article 25 guarantees a fundamental right
to every citizen of his conscience, faith and belief,
irrespective of cast, creed and sex, the infringement of
which is enforceable in a court of law and such court can
be none else except the civil courts. It would be travesty
of justice to say that the fundamental right guaranteed by
the constitution is incapable of enforcement as there is
no court which can take cognisance of it. There is yet
another aspect of the matters that Section 9 debars only
those suits which are expressly or impliedly barred. No
such statutory bar could be pointed out. Therefore, the
objection that the suit under Section 9 C.P.C. was not
maintainable cannot be accepted.
89. The conclusions thus reached are:
1. (a) The civil courts have jurisdiction to entertain
the suits for violation of fundamental rights guaranteed
under Articles 25 and 26 of the Constitution of
India.
(b) The expression 'civil nature' used in Section 9 of
the Civil Procedure Code is wider than even
civil proceedings, and thus extends to such religious
matters which have civil consequence.
(c) Section 9 is very wide. In absence of any
ecclesiastical courts any religious dispute is
124
congnizable, 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 recognised before
coming into force of the Act.
3. The following findings in Moran Mar
Basselious (supra) have become final and operate as res
judicata:-
(a). The Catholicate of the East was created in
Malankara in 1912.
(b). The Constitution framed in 1934 by Malankara
Association is valid.
(c). The Catholicos werenot heretics nor they had
established separate church.
(d). The meeting held by Patriarch Group in 1935
was invalid.
4 (a). The effect of the two judgments rendered by
the Appellate Court of the Royal Court and in
Moran Mar Basselios (supra) by this Court is that both
Catholicos and Patriarch Group continue to be
members of the Syrian Orthodox church.
125
(b) The Patriarch of Antioch has no temporal powers
over the churches.
(c) Effect of the creation of Catholicate at Malankara
and 1934 Constitution is that the patriarch can
exercise spiritual powers subject to the
Constitution.
(d) The spiritual powers of the patriarch of Antioch
can be exercised by the Catholico in accordance with
the Constitution.
5. (a) The Hudaya Canon produced by the Patriarch
is not the authentic version.
(b) There is no power in the Hudaya Canon to ex-
communicate Catholicos.
6. The ex-communication of the Catholicos by the
Patriarch was invalid.
7. All churches, except those which are of
Evangelistic Association or Simhasna or St. Mary
are under spiritual and temporal control of the
Malankara Association in accordance with 1934
Constitution.
(ii) AIR 1954 Supreme Court 388 (Ratilal
Panachand Gandhi and Others Vs. State of Bombay)-
Constitution Bench Para 10, Page 391, Article 25
126
protects not only the right to practice or freedom of
religion but to exhibit his belief in such overt acts as are
sanctioned by his religion.
Para 12, 13, Page 392 A religion is not merely an
opinion, doctrine or belief. It has its outward expression as
well. Religious practices are as much part of religion as
faith or belief in actual doctrine.
12. The moot point for consideration, therefore, is where
is the line to be drawn between what are matters of
religion and what are not ? Our Constitution-makers have
made no attempt to define what 'religion' is and it is
certainly not possible to frame an exhaustive definition of
the word 'religion' which would be applicable to all
classes of persons. As has been indicated in the Madras
case referred to above, the definition of the 'religion'
given by Fields J. in the American case of Davis v.
Beason , does not seem to us adequate or precise. "The
term 'religion'", thus to observed the learned Judge in the
case mentioned above, "has reference to one's views of
his relations to his Creator and to the obligations they
impose of reverence for His Being and character and of
obedience to His Will. It is often confounded with cults
or form of worship of a particular sect, but is
distinguishable from the latter". It may be noted that
127
'religion is not necessarily theistic and in fact there are
well known religions in India like Buddhism and Jainism
which do not believe in the existence of God or of any
Intelligent First Cause. A religion undoubtedly has its
basis in a system of beliefs and doctrines which are
regarded by those who profess that religion to be
conducive to their spiritual well being, but it would not
be correct to say, as seems to have been suggested by one
of the learned Judges of the Bombay High Court, that
matters of religion are nothing but matters of religious
faith and religious belief. A religion is not merely an
opinion, doctrine for belief. It has its outward expression
in acts as well. We may quote in this connection the
observations of Latham C.J. of the High Court of
Australia in the case of Adelaide Company v. The
Commonwealth , 124.), where the extent of protection
given to religious freedom by section 116 of the
Australian Constitution came up for consideration.
"It is sometimes suggested in discussion on the subject of
freedom of religion that, though the civil Government
should not interfere with religious opinions, it
nevertheless may deal as it pleases with any acts which
are done in pursuance of religious belief without
infringing the principle of freedom of religion. It appears
128
to me to be difficult to maintain this distinction as
relevant to the interpretation of section 116. The section
refers in express terms to the exercise of religion, and
therefore it is intended to protect from the operation of
any Commonwealth laws acts which are done in the
exercise of religion. Thus the section goes far beyond
protecting liberty of opinion. It protects also acts done in
pursuance of religious belief as part of religion."
In our opinion, as we have already said in the
Madras case, these observations apply fully to the
provision regarding religious freedom that is embodied in
our Constitution.
13. Religious practices or performances of acts in
pursuance of religious belief are as much a part of
religion as faith or belief in particular doctrines. Thus if
the tenets of the Jain or the Parsi religion lay down that
certain rites and ceremonies are to be performed as
certain times and in a particular manner, it cannot be said
that these are secular activities partaking of commercial
or economic character simply because they involve
expenditure of money or employment of priests or the use
of marketable commodities. No outside authorities has
any right to say that these are not essential parts of
religion and it is not open to the secular authority of the
129
State to restrict or prohibit them in any manner they like
under the guise of administering the trust estate. Of
course, the scale of expenses to be incurred in connection
with these religious observances may be and is a matter
of administration of property belonging to religious
institutions; and if the expenses on' these heads are likely
to deplete the endowed properties or affect the stability of
the institution, proper control can certainly be exercised
by State agencies as the law provides. We may refer in
this connection to the observation of Davar J. in the case
of Jamshedji v. Soonabai , and although they were made
in a case where the question was whether the bequest of
property by a Parsi testator for the purpose of perpetual
celebration of ceremonies like Muktad baj, Vyezashni,
etc., which are sanctioned by the Zoroastrian religion
were valid charitable gifts, the observations, we think, are
quite appropriate for our present purpose. "If this the
belief of the community" thus observed the learned
Judge, "and it is proved undoubtedly to be the belief of
the Zoroastrian community, - a secular Judge is bound to
accept that belief - it is not for him to sit in judgment on
that belief, he has no right to interfere with the
conscience of a donor who makes a gift in favour of what
he believes to be the advancement of his religion and the
130
welfare of his community or mankind". These
observations do, in our opinion, afford an indication of
the measure of protection that is given by article 26(b) of
our Constitution.
(iii) AIR (1954) Supreme Court 282 (The
Commissioner Hindu Religious Endowments Vs. Shri
Lakshmendra Tirtha Swami, Para 17 at page 290):
Religion is certainly a matter of faith with individuals or
communities and it is not necessarily theistic. There are
well known religions in India like Buddhism and Jainism
which do not believe in God or in any Intelligent First
Cause. A religion undoubtedly has its basis in a system of
beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual well
being, but it would not be correct to say that religion is
nothing else but a doctrine of belief. A religion may not
only lay down a code of ethical rules for its followers to
accept, it might prescribe rituals and observances,
ceremonies and modes of worship which are regarded as
integral parts of religion, and these forms and
observances might extend even to matters of food and
dress.
(iv) AIR 1959, SC Page 860, Saroop Singh Vs. State
of Punjab, Para 7 We are unable to accept this
131
argument as correct. Article 26 of the Constitution, so
far as it is relevant for our purpose, says-
" Art. 26. Subject to public order, morality and health,
every religious denomination or any section thereof
shall have the right-
(a)...........................
(b) to manage its own affairs in matters of religion
(c) .....................
(d) to administer such property in accordance with law.
The distinction between cls. (b) and (d) strikes
one at once. So far as administration of its property is
concerned, the right of a religious denomination is to
be exercised in " accordance with law ", but there is no
such qualification in cl. (b). In The Commissioner,
Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), this
distinction was pointed out by this Court and it was
there observed: " The administration of its property by a
religious denomination has thus been placed OD a
different footing from the right to manage its own affairs
in matter of religion. The latter is a fundamental right
which no legislature can take away, whereas the former
can be regulated by laws which the legislature can
validly impose ". Secondly, the expression used in cl. (b)
132
is 'in matters of religion'. In what sense has the word
'religion ' been used ? This was considered in two
decisions of this Court: The Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shiru Mutt (1) and Sri
Venkataramana Devaru v. The State of Mysore (2), and it
was hold that freedom of religion in our Constitution is
not confined to religious beliefs only, but extends to
essential religious practices as well subject to the
restrictions which the Constitution has laid down. In
The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt (1) it was observed at p. 1026 that under Art. 26(b),
a religious denomination or Organisation enjoys
complete autonomy in the matter of deciding as to what
rites and ceremonies are essential according to the tenets
of the religion they hold (we emphasise here the word
'essential'). The same emphasis was laid in the later
decision of Sri Venkataramana Devaru v. The State of
Mysore (2), where it was said that matters of religion in
Art. 26(b) include
practices which are regarded by the community as part of
its religion.
(v) AIR 1962 SC, 853 Sardar Syedna Vs. State of
133
Bombay A law prohibiting the right to excommunicate a
Bohra Muslim held violative of Art. 25 & 26 because this
is a part of their religion.
40. Let us consider first whether the impugned Act
contravenes the provisions of Article 26(b). It is
unnecessary for the purpose of the present case to enter
into the difficult question weather every case of
excommunication by the Dai on whatever grounds
inflicted is a matter of religion. What appears however to
be clear is that where an excommunication is itself based
on religious grounds such as lapse from the orthodox
religious creed or doctrine (similar to what is considered
heresy, apostasy or schism under the Cannon Law) or
breach of some practice considered as an essential part of
the religion by the Dawoodi Bohras in general,
excommunication cannot but be held to be for the purpose
of maintaining the strength of the religion. It necessarily
follows that the exercise of this power of
excommunication on religious grounds forms part of the
management by the community, through its religious
head, "of its own affairs in matters of religion." The
impugned Act makes even such excommunications
invalid and takes away the power of the Dai as the head
of the community to excommunicate even on religious
134
grounds. It therefore, clearly interferes with the right of
the Dawoodi Bohra community under clause (b) of
Article26 of the Constitution.
41. That excommunication of a member of a
community will affect many of his civil rights is
undoubtedly true. This particular religious denomination
is possessed of properties and the necessary consequence
of excommunication will be that the excommunicated
member will lose his rights of enjoyment of such
property. It might be thought undesirable that the head of
a religious community would have the power to take
away in this manner the civil right of any person. The
right given under Article 26(b) has not however been
made subject to preservation of civil rights. The express
limitation in Article 26 itself is that this right under the
several clauses of the article will exist subject to public
order, morality and health. It has been held by this Court
in Sri Venkataramana Devaru v. The State of Mysore :
[1958]1SCR895 , that the right under Article 26(b) is
subject further to clause 2 of Article 25 of the
Constitution.
42. We shall presently consider whether these
limitations on the rights of a religious community to
manage is own affairs in matters of religion can come to
135
the help of the impugned Act. It is clear however that
apart form these limitations the Constitution has not
imposed any limit on the right of a religious community
to manage its own affairs in matters of religion. The fact
that civil rights of a person are affected by the exercise of
this fundamental right under Article 26(b) is therefore of
no consequence. Nor it is possible to say that
excommunication is prejudicial to public order, morality
and health.
56. .If the property belongs to a community and if a
person by excommunication ceased to be a member of
that community, it is a little difficult to see how his right
to the enjoyment of the denominational property could be
divorced from the religious practice which resulted in his
ceasing to be a member of the community. When once it
is conceded that the right guaranteed by Article 25(1) is
not confined to freedom of conscience in the sense of the
right to hold a belief and to propagate that belief, but
includes the right to the practice of religion, the
consequences of that practice must also bear the same
complexion and be the subject of a like guarantee.
(vi) AIR 1962 SC 1106, Dalbir Singh Vs. State of
Punjab, Para 8 The Act prohibited or penalized and
public order must be proximate and intimate.
136
8. The content of the expression "in the interests
of ........... public order" has been the subject of detailed
and elaborate consideration by this Court in
Superintendent, Central Prison, Fatehgarh v. Ram
Manohar Lohia, (1960) 2 SCR 821 : (AIR 1960 SC 633)
where the effect of the First (Constitution) Amendment
by which the words "for the maintenance of public order"
were replaced by the words "in the interests of public
order" was considered in the light of the previous
decisions of this Court on that topic, Subba Rao, J.,
speaking for this Court said that the expression "public
order" in the juxtaposition of the different grounds set out
in Article 19(2) was synonymous with "public peace,
safety and tranquility". He also pointed out that the
expression "in the interests of public order" though
undoubtedly wider than the previous phrasing "for the
maintenance of public order" could not mean that the
existence of any remote or fanciful connection between
the impugned act and public order was sufficient to
sustain the validity of the law, but that on the other hand,
the connection between the act prohibited or penalized
and public order should be intimate; in other words there
should be a reasonable and rational relation between it
and the object sought to be achieved, viz., public order.
137
The nexus should thus be proximate - not far-fetched,
problematical or too remote in the chain of its relation
with public order.
(vii) 1986 (3) SCC Page 615, Bijoe Emmanneul Vs.
State of Kerala, Para 20 If the belief is genuinely and
conscientiously held as part of religion or its profession,
then regardless of our personal views, it attracts the
protection of Art. 25 subject to the inhibition mentioned
therein.
20. The meaning of the expression 'Religion' in the
context of the Fundamental Right to freedom of
conscience and the right to profess, practise and
propogate religion, guaranteed by Article 25 of the
Constitution, has been explained in the well known cases
of The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt [1954]1SCR1005 ; Rati Lal Panachand Gandhi v.
State of Bombay : [1954]1SCR1055 and S. P. Mittal v.
Union of India : [1983]1SCR729 . It is not necessary for
our present purpose to refer to the exposition contained in
these judgments except to say that in the first of these
cases Mukherjea, J. made a reference to "Jehova's
Witnesses" and appeared to quote with approval the
views of Latham, C.J. of the Australian High Court in
138
Adelaide Company v. The Commonwealth (supra) and
those of the American ' Supreme Court in West Virginia
State Board of Education v. Barnette (supra). In Ratilal's
case we also notice that Mukherjea, J. quoted as
appropriate Davar, .'s following observations in Jamshedji
v. Soonabai :
If this is the belief of the Community and it is
proved undoubtedly to be the belief of the
Zoroastrian community,a secular Judge is
bound to accept that beliefit is not for him to sit
in judgment on that belief, he has no right to
interfere with the conscience of a donor who
makes a gift in favour of what he believes to be
the advancement of his religion and the welfare of
his community or mankind.
We do endorse the view suggested by Davar J.'s
observation that the question is not whether a particular
religious belief or practice appeals to our reason or
sentiment but whether the belief is genuinely and
conscientiously held as part of the profession or practice
of religion. Our personal views and reactions are
irrelevant. If the belief is genuinely and conscientiously
held it attracts the protection of Article 25 but subject, of
course, to the inhibitions contained therein.
139
(viii) 2004 (12) SCC, Page 770, Commissioner of
Police Vs. Acharya J. Avadhutananda, Para 9, Page
782 (Majority view) The protection under Art. 25 & 26
is not confined to matters of doctrine or belief, but extends
to acts done in pursuance of religion. What constitutes an
essential part of religion has to be determined with
reference to doctrine, practice, tenets, historical
background of that religion. Essential part of religions
means the core belief upon which a religion is founded. It
means those practices that are fundamental to follow a
religious belief.
9. The protection guaranteed under Articles 25 and 26
of the Constitution is not confined to matters of doctrine
or belief but extends to acts done in pursuance of religion
and, therefore, contains a guarantee for rituals,
observances, ceremonies and modes of worship which are
essential or integral part of religion. What constitutes an
integral or essential part of religion has to be determined
with reference to its doctrines, practices, tenets, historical
background etc. of the given religion. (See generally the
Constitution bench decisions in The Commissioner v. L T
Swamiar of Srirur Mutt 1954 SCR 1005, SSTS Saheb v.
State of Bombay 1962 (Supp) 2 SCR 496, and
Seshammal v. State of T.N. regarding those aspects that
140
are to be looked into so as to determine whether a part or
practice is essential or not). What is meant by 'an
essential part or practices of a religion' is now the matter
for elucidation. Essential part of a religion means the core
beliefs upon which a religion is founded. Essential
practice means those practices that are fundamental to
follow a religious belief. It is upon the cornerstone of
essential parts or practices the superstructure of religion
is built. Without which, a religion will be no religion. Test
to determine whether a part or practice is essential to the
religion is - to find out whether the nature of religion will
be changed without that part or practice. If the taking
away of that part or practice could result in a fundamental
change in the character of that religion or in its belief,
then such part could be treated as an essential or integral
part. There cannot be additions or subtractions to such
part. Because it is the very essence of that religion and
alterations will change its fundamental character. It is
such permanent essential parts is what is protected by the
Constitution. No body can say that essential part or
practice of one's religion has changed from a particular
date or by an event. Such alterable parts or practices are
definitely not the 'core' of religion where the belief is
based and religion is founded upon. It could only be
141
treated as mere embellishments to the non-essential part
or practices.
(ix) 1997 (4) SCC, 606, Sri Adi Vishweshwar of
Kashi Vishwanath Temple and Others Vs. State of
U.P. And Others, at Para 28, Page 631 The practice
in question is religious in character and whether it could
be regarded as an integral and essential part of religion
and if the Court finds upon evidence adduced before it that
it is an integral part of religion, Art. 25 accords protection
to it.
30. Hindusim cannot be defined in terms of Polytheism
or Henotheism or Monotheism. The nature of Hindu
religion ultimately is Monisim/Advaita, This is in
contradistinction to Monotheism which means only one
God to the exclusion of all others. Polytheism is a belief
of multiplicity of Gods. On the contrary, Monism is a
spiritual belief of one Ultimate Supreme and manifests
Himself as many. This multiplicity is not contrary to on-
dualism. This is the reason why Hindus start adoring any
Deity either handed down by tradition or brought by a
Guru or Swambhuru and seek to attain the Ultimate
Supreme.
31. The protection of Articles 25 and 26 of the
Constitution is not limited to matters of doctrine. They
142
extend also to acts done in furtherance of religion and,
therefore, they contain a guarantee for rituals and
observances, ceremonies and modes of worship which are
integral parts of the religion. In Sehsammal case on which
great reliance was placed and stress was laid by counsel
on either side, this Court while reiterating the importance
of performing rituals in temples for the idol to sustain the
faith of the people, insisted upon the need for
performance of elaborate ritual ceremonies accompanied
by chanting of mantras appropriate to the Deity. This
Court also recognised the place of an archaka and had
held that the priest would occupy place of importance in
the performance of ceremonial rituals by a qualified
archaka who would observe daily discipline imposed
upon him by the Agamas according to tradition, usage and
customs obtained in the temple. Shri P.P. Rao, learned
senior Counsel also does not dispute it. It was held that
Articles 25 and 26 deal with and protect religious
freedom. Religion as used in those Articles requires
restricted interpretation in etymological sense. Religion
undoubtedly has its basis in a system of beliefs which are
regarded by those who profess religion to be conducive to
the future well-being. It is not merely a doctrine. It has
outward expression in acts as well. It is not every aspect
143
of the religion that requires protection of Articles 25 and
26 nor has the Constitution provided that every religious
activity would not be interfered with. Every mundane and
human activity is not intended to be protected under the
Constitution in the garb of religion. Articles 25 and 26
must be viewed with pragmatism. By the very nature of
things it would be extremely difficult, if not impossible,
to define the expression "religion" or "matters of religion"
or "religious beliefs or practice". Right to religion
guaranteed by Articles 25 and 26 is not absolute or
unfettered right to propagate religion which is subject to
legislation by the State limiting or regulating every non-
religious activity. The right to observe and practise rituals
and right to manage in matters of religion are protected
under these Articles. But right to manage the Temple or
endowment is not integral to religion or religious practice
or religion as such which is amenable to statutory control.
These secular activities are subject to State regulation but
the religion and religious practices which are integral part
of religion are protected. It is well settled law that
administration, management and governance of the
religious institution or endowment are secular activities
and the State could regulate them by appropriate
legislation. This Court upheld the A.P. Act which
144
regulated the management of the religious institutions and
endowments and abolition of hereditary rights and the
right to receive offerings and plate collections attached to
the duty.
A SOVEREIGN GOVERNMENT EVEN BY EXERCISING
THE POWER OF EMINENT DOMAN CANNOT EXERCISE
THE POWER OF ACQUISITION OF LAND OR PROPERTY
WHICH EXTINGUISHES THE CORE OF THE FAITH OR
THE PLACE OR THE INSTITUTION WHICH IS HELD TO
BE SACRED.
What clearly follows is that a sovereign government cannot
extinguish the core of the Hindu religion which is the Ram
Janambhumi, let alone the same be extinguished through a suit, by
transferring the same to some other party in this case the plaintiff
thereby ensuring that the said fundamental right to worship at the
Ram Janambhumi is extinguished forever.
RELEVANT CASE LAW
(a) 1975 (1) SCC, Page 11 (Acharya Maharshi
Narendra Prasadji Vs. State of Gujarat), at Para 26,
Page 18 If on the other hand acquisition of property of a
religious denomination by the State can be proved to be
such as to destroy or completely negative its right to own
and acquire movable and immovable property for even the
survival of a religious institution the question may have to
145
be examined in a different light.
26. 26. While Article 25, as stated earlier, confers the
particular rights on all persons, Article 26 is confined to
religious denominations or any section thereof. Article
19(1) confers the various rights specified therein from (a)
to (g) on citizens. A religious denomination or a section
thereof as such is not a citizen. In that sense the fields of
the two Articles may be to some extent different. Again
while Article 26(c) refers to the right "to own and acquire
movable and immovable property", Article 19(1)(f)
confers the right on citizens "to acquire, hold and dispose
of property". We are not required to consider in this case
why the same expression is not used in the said two
clauses of the two Articles. One thing is, however, clear
that Article 26 guarantees interalia the right to own and
acquire movable and immovable property for managing
religious affairs. This right, however, cannot take away
the right of the State to compulsorily acquire property in
accordance with the provisions of Article 31(2). If, on the
other hand, acquisition of property of a religious
denomination by the State can be proved to be such as to
destroy or completely negative its right to own and
acquire movable and immovable property for even the
survival of a religious institution the question may have
146
to be examined in a different light. That kind of a factual
position, however, is not taken in these appeals before us.
When, however, property is acquired by the State in
accordance with law and with the provisions of Article
31(2) and the acquisition cannot be assailed on any valid
ground open to the person concerned, be it a religious
institution, the right to own that property vanishes as that
right is transferred to the State. Thereafter there is no
question of any right to own the particular property
subject to public order, morality and health and Article 26
will in the circumstances be of no relevance. This being
the legal position, there is no conflict between Article 26
and Article 31.
(b) 1994 (6) SCC, Page, (Dr. M. Ismail Faruqui and
Others Vs. Union of India & Others), Para 76,
Page 416 Acharya Maharajshri Narendra Prasadji
Anand Prasadji Maharaj v. State of Gujarat, (1976) 2
SCR 317 at pages 327-328 : (AIR 1974 SC 2098 at p.
2103), has held :
" One thing is, however, clear that Article 26
guarantees inter alia the right to own and acquire
movable and immovable property for managing religious
affairs. This right, however, cannot take away the right
of the State to compulsorily acquire property ......If, on
147
the other hand, acquisition of property of a religious
denomination by the State can be proved to be such as to
destroy or completely negative its right to own and
acquire movable and immovable property for even the
survival of a religious institution the question may have
to be examined in a different light.:" (Emphasis supplied)
Para 82 - A mosque is not an essential part of the
practice of religion of Islam and Namaz by Muslims can
be offered anywhere, even in the open. Accordingly, its
acquisition is not prohibited by the provisions in the
Constitution of India. Obviously, the acquisition of any
religious place is to be made only in unusual and
extraordinary situations for a larger national purpose.
Keeping in view that such acquisition should not
result in extinction of the right to practice the religion
if the significance of that place be such.
Note (i) Ram Janmasthan in Ayodhya where Ram
Lala is Virajman is a place of religious significance as
described in the above judgment. If the sovereign
authority, under the power of eminent domain, cannot
acquire it, can a plea at the instance of plaintiffs who
are private persons in Suit No. 4 be entertained,
upholding of which would lead to denial of such
sacred place altogether to the Hindus.
148
Note (ii) At page 413, Para 65 of Ismail Faruqui No
argument made about a mosque of special significance
which forms an essential part of Islam. Hence, no
question raised about Baburi Mosque as integral to
Islam and it has not been raised in the plaint here or
evidence laid or any contention ever made that the
said mosque was of any significance to the practice of
Islam as a religion.
(c) 1995 Supplementary (1) SCC, 596, Jilubhai
Nanbhai Khachar and Others Vs. State of Gujarat,
Para 34, at Page 622 The right of eminent domain is
the right of sovereign state through its regular agencies to
reassert either temporarily or permanently its dominion
over any soil of the state including private property
without its owner's consent.
(d) 2008 (9) SCC 552, Suraram Pratap Reddy and
Others Vs. District Collector Ranga Reddy, Para 43 is
as under:-
43`Eminent domain' may be defined as the right or
power of a sovereign State to take private property for
public use without the owner's consent upon the payment
of just compensation. It means nothing more or less than
an inherent political right, founded on a common
necessity and interest of appropriating the property of
149
individual members of the community to the great
necessities and common good of the whole society. It
embraces all cases where, by the authority of the State
and for the public good, the property of an individual is
taken without his consent to be devoted to some
particular use, by the State itself, by a Corporation, public
or private or by a private citizen for the welfare of the
public [American Jurisprudence, 2d, Volume 26, pp. 638-
39, para 1; Corpus Juris Secundum, Volume 29, p. 776,
para 1; Words & Phrases, Permanent Edition, Volume 14,
pp. 468-70].
THE RELIGIOUS RIGHT OF HINDUS TO
WORSHIP RAM LALA AT THE JANMASTHAN
BECAME CONCRETISED BEFORE THE
CONSTITUTION CAME INTO BEING AND THE
SAME REQUIRES TO BE PROTECTED.
It is well-known that the Constitution of India was enacted,
i.e. given to ourselves, w.e.f. 26
th
January, 1950. Before it, the right
of Hindus to worship was duly sanctified and recognized by judicial
orders.
In fact, the Supreme Court records in the Ismail Faruqui case
above the contention in paragraph 1.2 of the White Paper of the
Government of India as recorded in Paragraph 9, Page 380, of the
said judgment. It reads as follows: Interim orders in these civil
150
suuits restrained the parties from removing the idols or interfering
with their worship. In effect, therefore, from December 1949 till
6.12.1992 the structure had not been used as a mosque.
It is further very significant to note that the Muslims for the
first time, after 1949, assert their right howsoever unsustainable,
only in 18
th
December, 1961.
Therefore, the right of the Hindus to worship at the Rama
Janma Bhumi, continuing since times immemorial as an integral
part of their religious right and faith was also sanctified by judicial
orders form 1949 continuously. This right has concretised and
remains an integral part of Hindu religion and has to be protected.
IN SUCH A CASE NO PLEA CAN BE ENTERTAINED THE
EFFECT OF WHICH WOULD BE TO GRANT INJUNCTION
AGAINST THE HINDUS TO PRACTICE THEIR
RELIGIOUS BELIEFS AT THE SACRED PLACE.
RELEVANT CASE LAW
(i) 1976 (2) SCC, Page 58, Executive Committee of
Vaish Degree College, Shamli and Others Vs.
Lakshminarayana and Others.
Para 20 at Page 72 It is well settled that a relief under
the Specific Relief Act is purely discretionary and can be
refused where the ends of justice do not require the relief
to be granted.
Assuming for the sake of arguments, but not deciding
151
that this decision has extended the scope of the
exceptions, so that the appellant Executive Committee
though a non-statutory body will still be bound by the
statutory provisions of law, let us see what is the position.
It would appear that under s. 25-C (2) of the Agra
University Act corresponding to similar provisions in
Kanpur and Meerut Universities Act of 1965 which runs
thus:
"Every decision by the Management of an
affiliated college, other than a college maintained by
Government, to dismiss or remove from service a
teacher shall be reported forthwith to the Vice-
Chancellor and subject to provisions to be made by the
Statutes shall not take effect until it has been
approved by the Vice-Chancellor." it was incumbent
on the Executive Committee of the College to have
taken the previous approval of the Vice-Chancellor
before terminating the services of the
plaintiff/respondent. Reliance was placed by the
learned counsel for the respondent on the words
"shall not take effect until it has been approved by the
Vice-Chancellor". It was urged that there has been an
infraction of a mandatory provision of the Act itself
which is undoubtedly binding on the appellant
152
Executive Committee and the resolution of the
Executive Committee terminating the services of the
respondent is not only invalid but completely without
jurisdiction, and, therefore, the plaintiff/respondent is
entitled to the injunction sought for. It is common
ground that the procedure enjoined in sub-s. (2) of s.
25-C of the Agra University Act was not at all
followed by the Executive Committee and there can
be no doubt that the Executive Committee has been
guilty of this default. The question remains whether
even if there has been a violation of the mandatory
provisions of the statute, should we in the exercise
of our discretion grant a declaration or an injunction
to the plaintiff/respondent in the peculiar facts and
circumstances of the present case ? It is well settled
that a relief under the Specific Relief Act is purely
discretionary and can be refused where the ends of
justice do not require the relief to be granted. Mr.
Ramamurthi learned counsel for the
plaintiff/respondent submitted that the question of
discretion would arise only in case where the High
Court or this Court is acting in a writ jurisdiction
and not in a suit. We are, however, unable to agree
with 1022 this argument because the exercise of
153
discretion is spelt out from the provisions of the
Specific Relief Act and the common law and it applies
as much to the writ jurisdiction as to other action at
law.
Para 27 at Page 74 The relief of declaration and
injunction under the provisions of the Specific Reliefs
Act is purely discretionary and the plaintiff cannot claim
it as of right. The relief has to be granted by the Court
according to sound legal principles and ex debito
justitiae the Court has to administer justice between the
parties and cannot convert itself into an instrument of
injustice or an engine of oppression.
(ii) 1993 (2) SCC, Page 199, American Express
Bank vs. Calcutta Steel Company, Para 22, Page 213
Undoubtedly declaration of the rights or status is one of
discretion of the court under Section 34 of the Specific
Relief Act, 1963. Equally the grant or refusal of the relief
of declaration and injunction under the provision of that
Act is discretionary. The plaintiff cannot claim the relief
as of right. It has to be granted according to sound
principles of law and ex debito justicia. The court cannot
convert itself into an instrument of injustice or vehicle of
oppression. While exercising its discretionary power, the
court must keep in its mind the well settled principles of
154
justice and fair play and the discretion would be
exercised keeping in view the ends of justice since justice
is the hall mark and it cannot be administered in vacuum.
Grant of declaration and injunction relating to
commercial transactions tend to aid dishonesty and
perfidy. Conversely refusal to grant relief generally
encourages candour in business behaviour, facilitates free
Row of capital, prompt compliance of covenants,
sustained growth of commerce and above all inculcates
respect for the efficacy of judicial adjudication. Before
granting or refusing to grant of relief of declaration or
injunction or both the court must weigh pros and cons in
each case, consider the facts and circumstances in its
proper perspective and exercise discretion with
circumspection to further the ends of justice. From the
back-drop fact situation we have no hesitation to hold
that the relief of declaration granted is unjust and illegal.
It tended to impede free flow of capital, thwarted the
growth of merchantile business and deflected the course
of justice.
THE ALLEGED BABRI MOSQUE IS NOT A VALIDLY
CONSTITUTED MOSQUE UNDER MOHAMMADAN LAW
AND THE TENETS OF ISLAM, AND THEREFORE THE
CLAIM OF THE PLAINTIFF IS CONTRARY TO LAW.
155
It is submitted that in any case the Babri Masjid is contrary to
Koranic injunctions and cannot be termed as a mosque in terms of
Islamic Law. Some of the most eminent commentators have been
quoted below to illustrate the Islamic Law on the point.
RELEVANT EXTRACTS OF EMINENT COMMENTATORS
OF ISLAMIC LAW.
(i) There are many eminent jurists who are authorities
on Islamic Law. In the Mulla Principles of
Mahomedan Law edited by the equally well-known
jurist M. Hidayatullah, the former Chief Justice of India,
in its 19
th
edition, has cited the names and the works of
such authorities which includes Macnaghten, Ameer Ali,
Baillie and Hedaya as translated by Hamilton. There is
consistent view of these authorities that if the title of
the land is disputed then no valid mosque can be
constructed there.
(ii) Name of the Book - Principles and Precedents
of Moohummudan Law by W.H. Macnaghten, Esq.,
1825 (2
nd
Edition) -
Chapter X on Endowments Case No. V at page 335
Case of a mosque built without the consent of the land
owner-
Both land and building are included in the term mosque.
156
It is neither simply land nor simply building but it
comprises both. The land is the chief part of it because
the foundation of the mosque stands upon it and the
superstructure is dependant on the land. Under these
circumstances without the consent of the Fakeer who is
the landlord, the building cannot in the legal sense be
termed a mosque because no one is at liberty to erect a
building on the land of another without that other's
consent and if he do so the law sanctions its being razed
to the ground.
At Page 336-337, in this book the author quotes Kazee
Khan The appropriation of a superstructure without its
basis is not allowable, an edifice independently of its
founder is not a mosque. Further as per Shurhi Viqya if
anyone build or plant on the land of another let the thing
built or planted be razed or rooted out.
Note:- In Qutlines of Muhammadan Law by Asaf A.
Fyzee, published from Oxford University, 1949, in the
Appendix-E (Page 418) Mohammadan Law, the
above work of Macnaghten has been described as a
work of great authority.
It is to be noted that this book was written in 1825
when the Mughal rule was still there.
(iii) The law relating Gifts, Trusts and
157
Testamentary Dispositions among the
Mahommedans by Syed Ameer Ali (Tagore Law
Lectures, 1884)-
At page 236 A sovereign cannot give any portion of the
land acquired by treaty and negotiation to be converted
into a mosque without the consent of the owners, but he
can give any portion of the land acquired by war,
provided it does not interfere with the rights of way
possessed by any individual.
At page 337 Hedaya is quoted as if a person usurps
land and build and plant thereon, he will be desired to
eradicate and raise his plants or buildings.
Therefore, if the right of way of an individual is
important, then the right of an entire community to
offer worship at the land in question is of greater
sanctity.
(iv) A Digest of Moohummudan Law by Neil B.E.
Baillie (1875), Chapter-VII, Page 615 (How a Musjid
is Constituted), Page 615 at Page 616-
A sick man has made his mansion a Musjid and died but
it neither falls within a third of his property nor is allowed
by his heirs: the whole of its is heritage and the making of
it a Musjid is void because the heirs having a right in it
158
there has been no separation from the rights of mankind
and a confused portion has been made a Musjid which is
void.
(v) The Hedaya (A Commentary on the
Mussulman Laws) translated by the order of the
Governor General by Charles Hamilton (Premier Book
House, Lahore) If a person convert the centre hall of his
house into a mosque giving general admission into it, still
it does not stand as a mosque but remains saleable and
inheritable because a mosque is a place in which no
person possesses any right of obstruction; and wherever a
man has such a right with respect to the surrounding parts
the same must necessarily affect the place enclosed in
them. The place, therefore, cannot be a mosque; besides it
is necessarily a thoroughfare for the family and
consequently does not appertain solely to God.
(vi) In 1976 (4) SCC, Page 780 (Syed Md. Salie
Abbas Vs. Md. Hanifa), Para 34-35 The above
authorities have been quoted to construe as to what is a
mosque.
(vii) The history of Islam by Akbar Shah
Najeebabadi, Revised by Safi-ur-Rahman
Mubarakpuri, published by Darussalam, Riyadh,
Saudi Arabia -
159
The said book was written in Urdu language in 1922 and
became a classic thereafter. It contains authentic events in
concise form from the famous histories of Islam written
in Arabic and Persian languages. Its English translation
was done by Darussalam in three volumes.
At page 147 and 148, Vol.I, contains the entry of
Prophet into Al-Madinah. At Page 148, there is a specific
reference about a deserted land being the property of two
orphan boys Sahl and Suhail. The said land was offered
by Muadhbin Afra for building a mosque as the two
orphan boys were related to him and he would make
them part of the land. But the Prophet asserted I want
to buy it and will not take it without paying the price.
Note:- If from the authentic real life of Prophet he
imposed such an injunction that for building a
mosque the land of an orphan in spite of the consent
of their guardian shall not be taken unless price is
paid for; could the Babri mosque erected forcibly by
breaking a temple at a place held sacred by Hindus be
at all described as a valid mosque and can the plaintiff
seek any declaration as such when the disputed
structure is not a valid mosque in terms of Islamic
law.
In view of the arguments referred to, I find that on behalf of
160
the evidence that has been produced before this Court is of
convincing nature that temple was destroyed and the mosque was
erected on the site of the temple. Historical account as available in
gazetteers etc. has already been referred while deciding issue nos.1
and 1-A by me. I crave to refer the same, but otherwise also it
transpires that on the basis of archeological evidence that has been
referred while deciding issue no. 1-B leaves no room for doubt
that on the site of the old Hindu temple the mosque was
constructed. In this reference P. Carnegy has given in detail data
based finding and thereafter another gazetteer has specifically
mentioned that at the site of the Ram Janam Bhumi Mandir the
mosque was constructed after destruction of the temple but Hindus
were worshipping the place like a deity and they were offering
prayers with a belief as birth place of Lord Rama. I have already
referred that in view of statement of O.P.W,14 Dr. Rakesh Tiwari,
Director State Archaeological Organization 265 pieces of broken
images of different idols of Hindus and broken pieces of temples
were collected from the debris after 6
th
December, 1992. Thus, on
the basis of the historical account which has been given in the
epigraphical evidence which was found after the demolition of
disputed structure referred to above do not leave a doubt that
finding of Archeological survey of India about the site of old temple
is fully corroborated by other circumstantial evidence which has
been referred to above. Account of Tieffen Thaler that the temple
161
was destroyed by Aurangzeb appears to be a clerical error who as a
foreigner could have committed mistake because Aurangzeb was a
descendant of Babur and coming out from his family. Thus, his one
mistake about mentioning of the name could not make his
description in this account useless. He has referred that Ram
Naumi was birth day of Lord Ram and it was celebrated by Hindus
as a festival day. Hindus used to offer prayer doing Parikrama and
observing religious rites at Babri mosque. This fact gets strength
from the site plan, prepared by Vakil Commissioner in O.O.S. No.
61/280 of 1885 and O.S 2 of 1950.
I further find that in the above case there is judicial
pronouncement in the aforesaid case showing that the District
Judge was also of the view that Babri mosque was constructed at
the site of Ram Janam bhumi.
I have already referred that in Hindu mythology a deity can
be formless also. Brahm is considered as formless but it is always
being worshipped like God. There are certain idols which are also
worshipped . There are certain places which are worshipped like
deity like Kedarnath, Govardhan, Vishnupad and kamadgiri. Even
fire is considered as a God. Gangotri and other places are also
considered like deities .
Thus idol is the object which is worshipped. Deity may be
like idol or otherwise also but is being worshipped religiously in
accordance with the faith by Hindus. This has been recognized
162
under the Hindu text which have been referred to by Mr Ravi
Shanker Advocate and Sri H.S, Jain Advocate. I do not want to
further reproduce for the sake of brevity and I agree with their
contention that the defendants have successfully placed the material
before the Court to arrive at a decision that there was strong belief
of Hindu from times immemorial that Lord Ram's birth took place
at the place where the old temple was constructed and same was of
12
th
century which was destroyed by Babur.
Hans Bakker has completed his research work in most
methodical and scientific manner . He has devoted much time in his
studies. He formed his opinion about the Janamsthan .Part II
chapter 21 page 143-145 deal with the Janamsthan. For
convenience I am reproducing the same:-
The most conspicuous fact with respect to the textual
evidence relating to the tirtha Rama-janmasthana (Janmabhumi) is
that on the one hand a description of this principle holy place is
found in all MSS of the AM used for this edition, and on the other
hand that the tirtha is not mentioned in other classical sources (e.g.
Puranas, Laksmidhara's TVK, Nrsimhapurana MS, Jinaprabhasuri's
TK, Bhusram., and Mitra Misra's TP). Such a silence is all the more
surprising in view of the fact that archaeological evidence indicates
the existence of a temple at this tirtha in the eleventh century. A
reason for the omission of this holy place in the Bhusram and TP
might be that at the time these texts were written the site was
163
occupied by a mosque (built by Babur in AD 1528).
The DA recension, which presumably also dates from after
the destruction of the original Janmabhumi temple, has merely
taken over the description of the place as found in s and B, without
adding more details and praise, yet it has connected the
Janmasthana with an elaborate description of Ramanavami (OA 22,
OA 23).
This chapter is interesting for text-criticism in that it
illustrates the relationship between OA, B,and S. The analysis of
this relationship in II, XXIXF.leads to the conclusion that, since OA
is not directly based on B and S but goes back to an a-type-of-text
which comprised the textual materials of B and S, both agreement
between B and S against OA (AM 21. 2d), as well as agreement
between OA and B against S (AM 21, 1cd/4cd,2b,7b,9/15), are
likely to occur. Since B rests on a later version of the 1-type-of-text
than S, a version that stands nearer to the OA recension, a greater
affinity of B with OA than with S can be expected, especially in
regard to the sequence and the occurrence of verses (see 21.1cd/4cd
and 21.9/15 (sequence of OAB vs. S), and 21.3-4, 8-11 (occurring
in OAB missing in S) vs. 21.13ab (occurring in BS missing in
OA)).
The fact that B represents the most direct or crudest version
of the a-type-of-text, which was edited in S and in OA, while the
latter has not extended the description of the birthplace (possibly for
164
reasons advanced above), accounts for the given evidence that MS
B actually contains the most complete version of this section of the
Mahatmya. The incongruity of S with the a-type-of-text may have
prompted the author of B(P), at variance with his normal procedure,
to include the entire description of the Janmasthana, thus rewriting a
passage of S that was felt to be insufficient. The omission in S of
DAB 21.8-11 may have been caused by homoeoteleuton (OABS
21.7cd=OAB 21.11cd).
MS P, which omits several slokas ocurring in B (B 21.2-4)
and replaces B 21.8 by another sloka, contains a hiatus after B 21.9
which is indicated by a sign . truti. Slokas 11 and 12 are corrupt
and rendered incompletely in Mss O1 and O2, and BS 21.12abcd
seems to be an anacoluthon. Obviously this passage had become
corrupt in an early stage of its transmission and the clumsiness of
the Sanskrit that remained my have led the editor of A to delete it
altogether.
Page 147 further deals about Janam Bhumi. Chapter 28
further deals with location which he had prepared indicating the
reason as to how he could come to a conclusion about the Ram
Janambhumi. Relevant extracts of chapter 28 are as under:
CHAPTER 28. SVARNAKHANI.
Introduction
Textual evidence.
AM MSS; 10.44abcd, 11.1-61: O2 10.43abcd, 11.1-60ab:
A 10.46abcd, 11.1-61; C 5.37ab-40ab; K 5.37ab-40ab; S 4.30-71,
165
5.1-18ab; om.BP.
Class.Lit.: Raghuvamsa 4.26-88, 5.1-35: Mbh. 5.104.8-26
(cp. Mbh. 5.112-117); SMC p.50
Mod.Lit.: Sitaram 1932, 53; Sitaram 1933, 72f.; Carnegy
1870 App. A,p.IX (kuti of Raghunathadasa); Ghurye 1953, 191
(Bari Chavani of Raghunathadasa); simha 1957, 415 (kuti of
Ramaprasada), ibid. p.463 (Bari Chavani of Raghunathadasa).
Note to the textual evidence.
Although the mahatmya of this holy place is a conflation of
two classical legends (Raghuvamsa 4-5, and Mbh. 5.104), the text
does not follow either source verbatim.
Location.
OA S At present
Hanumatkunda Dharmahari Dharmahari
Hanumatkunda
Ksirodaka
Ksirodaka
Yajnavedi Tilodak I-
Sarayu-
Yajnavadi
Samgama Tilodaki-
Sarayu-
Samgama
Version of P. Carnegy was confirmed after due research by
Hans Bakker.
This Court has occasion to go through the A Historical
166
Skethch of Faizabad including Parganas Haveli-Oudh and
Pachhimrath with the old capitals Ajudhia and Fyzabad by P.
Carnegy . He has given description of Ayodha, Ram and Ramayan.
Looking to the controversy in dispute as regards location of Ram
Janam Bhumi, Ram Kot and description given by Carnegy which
was based on a systematic way leaves no room for doubt that he
affirmed Janambhumi and other temples and took a view that
Emperor Babur built the mosque in 1528 after demolishing the
Hindu temples Janamstali marks the place where Lord Ram was
born. Relevant extracts of Gazetteers by P. Carnegy of Ayodhya are
as under:-
AJUDHIA.
Ajudhia- Ajudhia, which is to the Hindu what Macca is to
the Mahomedan, Jerusalem to the Jews, has in the traditions of the
orthodox, a highly mythical origin, being founded for additional
security not on the earth for that is transitory, but on the chariot
wheel of the Great Creator himself which will endure for over.
In appearance Ajudhia has been fancifully likened to a fish,
having Guptar as its head, the old town for its body, and the eastern
parganas for its tail.
Derivation- The name Ajudhia is explained by well-known
local Pandits to be derived from the Sanskrit words, Ajud,
unvanquished, also Aj, a name of Barmha, the unconquerable city of
the Creator, But Ajudhia is also called Oudh, which in Sanskrit
167
means a promise, in allusion it is said, to the promise made by Ram
Chandr when he went in exile, to return at the end of 14 years.
These are the local derivation; I am not prepared to say to what
extent they may be accepted as correct. Doctor Wilson of Bombay
thinks the word is taken from yudh to fight, the city of the fighting
Chhatris.
Area.- The ancient city of Ajudhia is said to have covered an
area of 12 jogan or 48 kos, and to have been the capital of Utar-
Kausala or Kosala, (the Northern Treasure) the country of the
Surajbans race of Kings, of whom Ram Chundar was 57
th
in descent
from Raja Manu, and of which line Raja Sumintra was the 113
th
and
last. They are said to have reigned through the Suth, Tireta, and
Dwapar Jugs, and 2,000 years of the Kul or present Jug or Era.
The description of the Ajudhia of Rama and the Ramayan has
been beautifully rendered into verse by the distinguished Principal
of the Benares College, Mr. Griffiths.
__________
Her ample streets were nobly planned,
And streams of water flowed,
To keep the fragrant blossoms fresh,
That strewed her royal road.
There many a princely palace stood,
In line, on level ground,
Here temple, and triumphal are,
And rampart banner crowned.
There gilded turrets rose on high,
Above the waving green,
168
Of mango-groves and blooming trees,
And flowery knots between.
On battlement and gilded spire,
The pennon streamed in state;
And warders, with the ready bow,
Kept watch at every gate,
She shone a very mine of gems,
The throne of Fortune's Queen;
So many-hued her gay parterres,
So bright her fountains sheen.
Her dames were peerless for the charm,
Of figure, voice, and face;
For lovely modesty and truth,
And woman's gentle grace.
Their husbands, loyal, wise and kind,
Were heroes in the field,
And sternly battling with the foe,
Could die, but never yield.
Each kept his high observances,
And loved one faithful spouse;
And troops of happy children crowned,
With fruit their holy vows.
(Scenes from the Ramayan.)
______
With the fall of the last of Rama's line, Ajudhia became a
wilderness, and the royal race became dispersed even as the Jews.
From different members of this dispersed people, the Rajas of
Jaipur, Joudhpur, Udeypur, Jambu, &c., of modern times, on the
169
authority of the Tirhut Kuth-ha, claim to descend. Even in the
days of its desertion Ajudhia is said still to have remained a
comparative Paradise, for the jungle by which it was over-run, was
the sweet-smelling keorah, a plant which to this day flourishes with
unusual luxuriance in the neighbourhood.
Ban-Oudha.- In less ancient times when waste began to yield
to cultivation, it took the name of Ban-Oudha or the Jangle of
Oudh. With this period the name of Vikramajit is traditionally and
intimately associated, when Budhism again began to give place to
Brahminism.
The restoration by Vikramajit.- To him the restoration of the
neglected and forest-concealed Ajudhia is universally attributed.
His main clue in tracing the ancient city was of course the holy river
Sarju, and his next was the shrine still known as Nageshar-nath,
which is dedicated to Mahadeo, and which presumably excaped the
devastations of the Budhist and atheist periods. With these clues,
and aided by descriptions ehich he found recorded in ancient
manuscripts , the different identified, and vikramajit is said to have
indicated the different shrines to which pilgrims from afar still in
ghousands half-yearly flock.
Ramkot.- The most remarkable of those was of course
Ramkot the strong-hold of Ramchandar. This fort covered a large
extent of ground and according to ancient manuscripts, it was
surrounded by 20* bastions, each of which was commanded by one
170
of Rama's famous generals, after whom they took the names by
which they are still known. Within the fort were eight royal
mansions-!- where dwelt the Patriarch Dasrath, his wives, and
Rama his deified son, of whom it has been plaintively sung-
Lord of all virtues, by no stain defiled,
The king's chief glory was his eldest child,
For he was gallant, beautiful, and strong,
Void of all envy, and the thought of wrong.
With gentle grace to man and child he spoke,
Nor could the churl his harsh reply provoke,
He paid due honor to the gook and sage,
Renowned for virtue and revered for age.
And when at eve his warlike task was o'er,
He sat and listened to their peaceful lore,
Just pure and prudent, full of tender ruth,
The foe of falsehood and the friend of truth;
Kind, slow to anger, prompt at miseries call,
He loved the people, and was loved of all,
Proud of the duties of his warrior race,
His soul was worthy of his princely place.
Resolved to win, by many a glorious deed,
Throned with the gods in heaven, a priceless meed
What thought Brihaspati might hardly vie,
With him in eloquence and quick reply,
Nano heard the music of his sweet lips flow
In idle wrangling or for empty show.
He shunned no toils that student's life befit,
But learned the Vedas and all holy writ;
And even eclipsed his father's archer fame,
So swift his arrow and so sure his aim.
171
* 1. Hanuman Garhi. 11. Kuteswar.
2. Sugreon. 12. Labidh Bawan.
3. Ungad. 13. Mayand.
4. Dibadh. 14. Rakhach.
5. Nal. 15. Surumbha.
6. Nil. 16. Bibhi Khan.
7. Sukhen. 17. Pindark.
8. Kuber. 18. Mat Gajyindr.
9. Gwachh. 19. Jamwant.
10. Dadh Biktr. 20. Kesri.
-!-1. Rattan Singasin (the throne room).
2. Kosilla Mandr (the palace of Kosilla, Raja Dasrath's 1
st
wife)
3. Sumantra Mandr, (ditto, ditto, 2
nd
wife.)
4. Kekai Bhawan, (ditto, ditto, 3
rd
do.)
5. Subha Mandr, (the court house.)
6. Janam Asthan, (Rama's birth place.)
7. Nowratan, (assembly room of the queens.)
8. Kunak Bhawan, (the golden palace of Ramchandar.)
To this praise for virtue his ancient father apparently had no
pretension; for we are told that besides the three wives above
marginally indicated, who caused him so much anxiety, there were
360 others of whom history says little.* A prodigality of connubial
happiness which in modern days found its parallel also in Oudh, in
the Kesar Bagh Harem of Wajid Ali Shah.
Note:- The same story and number of wives is also ascribed to
Salivahara and Tilokchand.
Samundra Pal Dynasty.- According to tradition Raja
Vikramaditta ruled over Ajudhia for 80 years, and at the end of that
time he was outwitted by the Jogi Samundra Pal, who having by
magic made away with the spirit of the Raja, himself entered into
the abandoned body, and he sand his dynasty succeeding to the
172
kingdom they ruled over it for 17 generations or 643 years, which
gives an unusual number of years for each reign.
Note:- Ancient Hindu History is sadly mystified by the
irrepressible appearance of Vikramditta. Wilford speaks of eight
rulers of the name, extending over as many centuries. Something of
the same kind may be said of Tilokchand in these parts, for the
Bais, Bachgote and Siribastam families all had most prominent
rulers of that name.
The Ajudhia Mahatum.- No account of Ajudhia would be
complete with did not throw some light on the Ramayan and the
Ajudhia Mahatum. Of the former of these works, I need not speak,
for through the writings of Wheeler, Cust, Monier Williams &c.
most readers are familiar therewith. I will therefore confine my
remarks to the Ajudhia Mahatum, which is comparatively unknown.
This work was prepared to the glorification of Ajudhia
according to some, by Ikshawaku of the solar race, while others
with more probability aver that it is a transcript from the Askundh
and Padam Purans, and is not the production of any Raja. Be that
as it may it is well that the essence of the work should be made
available to the public, and in this view Mr. Woodburn c.s. Has been
good enough to make a connected abstract for me, from a literal
translation which I had made some years ago. This abstract is given
as Appendix B.
Limits of Oudh.- It is not always easy to comprehend what is
173
meant by the Oudh or Ajudhia of ancient times, for that territory has
been subjected to many changes. So far as these are known to me,
I give them below-
The Oudh of Rama.- Such intelligent natives as Maharaja
Man Singh have informed me that at this period Oudh was divided
into five portions, thus:- (1) Kosal or Utar Kosala, which included
the present Trans-Gogra districts of Gorakhpur, Busti, Gondah and
Baraich. (2) Pachhamrath, which included the country between the
rivers Gogra dnd Gomti, extending westwards from ajudhia to
Nimkhar in Sitapur, (3) Purabrath, or the territory between the
same rivers, extending eastwards towards Jaunpur, the limit not
being traceable. (4) Arbar being the country around Pertabgurh,
lying between the rivers Gomti and Son, probably the same that is
still known as Aror or Arwar: and (5) Silliana, which incoluded
some portion of the Nepal hills running along the then Oudh
frontier.
The Oudh of Akbar.- Mention is made of the title of Subadar
of Oudh as early as A.D. 1280, and it was one of the 15 subas or
Governorships into which Akbar subdivided the empire in 1590
A.D. The Mahamadan attempt to change the name from Oudh to
Akhtarnagar, never seems to have succeeded fully.
The boundaries of the old Suba differed materially from those
of the present day, and a large part of what is now the eastern
portion of the Province, including tanda, Aldemau, Manikpur, &c.,
174
was not in those days included in Suba Oudh, but in Allahabad.
According to the Ain-i-Akbari the Suba then extended from and
inclusive of Sirkar Gorakhpur, to Kanouj, and from the Himalayas
to Suba Allahabad, 135 kos by 115 kos.
Suba Oudh contained five Sirkars, viz., (1) Oudh ; (2)
Lucknow : (3) Baraich ; (4) Khyrabad ; and (5) Gorakhpur. The
details of these are given below, but they are only approximately
correct, and in regard to some places my information is incomplete.
The Janmasthan and other temples.- It is locally affirmed that
at the Mahomedan conquest there were three important Hindu
shrines, with but few devotees attached, at Ajudhia which was then
little other than a wilderness. These were the Janmasthan, the
Sargadwar mandir also known as Ram Darbar and the Tareta-
ke-Thakur.
On the first of these the emperor Babar built the mosque
which still bears his name, A.D. 1528. On the second Aurangzeb
did the same A.D. 1658-1707; and on the third that sovereign, or
his predecessor, built a mosque, according to the well known
Mahomedan principle of enforcing their religion on all those whom
they conquered.
The Janmasthan marks the place where Ram Chandr was
born. The Sargadwar is the gate through which he passed into
paradise, possibly the spot where his body was burned. The Tareta-
ke-Thakur was famous ad the place where Rama performed a great
175
sacrifice, and which he commemorated by setting up there images
of himself add Sita.
Babar's mosque- According to Leyden's memoirs of Babar
that emperor encamped at the junction of the Serwa and Gogra
rivers two orthree kos east from Ajudhia, on the 28
th
March 1528,
and there he halted 7 or 8 days settling the surrounding country. A
well known hunting ground is spoken of in that work, 7 or 8 kos
above Oudh, on the banks of the Surju. It is remarkable that in all
the copies of Babar's life now known, the pages that relate to his
doings at Ajudhia are wanting. In two places in the Babari mosque
the year in which it was built 935 H., corresponding with 1528 A.D.
is carved in stone, along with inscriptions dedicated to the glory of
that emperor.
If Ajudhia was then little other than a wild, it must at least
have possessed a fine temple in the Janmasthan; for many of its
columns are still in existence and in good preservation, having been
used by the Musalmans in the construction of the Babari Mosque.
These are of strong close-grained dark slate-colored or black stone,
called by the natives Kasoti (literally touch-stone,) and carved with
different devices. To my thinking these strongly resemble Budhist
pillars that I have seen at Benares and elsewhere. They are from
seven to eight feet long, square at the base, centre and capital, and
round or octagonal intermediately.
Hindu and Musalman differences.- The Janmasthan is within
176
a few hundred paces of the Hanuman Garhi. In 1855 when a great
rupture took place between the Hindus and Mahomedans, the
former occupied the Hanuman Garhi in force, while the Musalmans
took possession of the Janmastham. The Mahomedans on that
occasion actually charged up the steps of the Hanuman Garhi, but
were driven back with considerable loss. The Hindus then followed
up this success, and at the third attempt, took the Janmasthan, at the
gate of which 75 Mahomedans are buried in the Martyrs' grave
(ganj-shahid.) Several of the King's Regiments were looking on all
the time, but their orders were not to interfere. It is said that up to
that time the Hindus and Mahomedans alike used to worship in the
mosque-temple. Since British rule a railing has been put up to
prevent disputes, within which in the mosque the Mahomedans
pray, while outside the fence the Hindus have raised a platform on
which they make their offerings.
The two other old mosques to which allusion has been made
(known by the common people by the same of Nourang Shah, by
whom they mean Aurangzeb,) are now mere picturesque ruins.
Nothing has been done by the Hindus to restore the old Mandir of
Ram Darbar. The Tareta-ke-Thakur was reproduced near the
old ruin by the Raja of Kalu, whose estate is said to be in the
Punjab, more than two centuries ago; and it was improved upon
afterwards by Hilla Bai, Marathin, who also built the adjoining ghat
A.D. 1784. She was the widow of Jaswant Rai, Holkar, of Indore,
177
from which family Rs. 231 are still annually received at this shrine.
Thus, on the basis of convincing epigraphical evidence the
belief of Hindus and the arguments advanced by Hindus, I am of the
view that the city of Ayodhya undeniably is city of great antiquity
and sacred spot to the Hindus for a long time. Valmiki Ramayan,
Srimad Bhagwat, Mahabhart and Raghuvansham recognised the
identity of Ayodhya.
On the basis of record it transpired that on the basis of
historical account given by William Finch, William Foster and
Tieffen Thaler, it is crystal clear that Hindus were worshipping the
site as birth place of Lord Ram as a deity. The aforesaid assertions
corroborate that Hindu temple used to exist at the birth place of
Lord Ram at Ram Kot. Encyclopaedia Britannica India by
Surgeon J.A. Balfour , gazetteer of P. Carnegy and other
gazetteers reveal the location of Babri mosque as the site of Ram
Janam Bhumi and corroborate the version of William Finch that
the pilgrims were offering prayers with a belief that site was the
birth place of Lord Ram. Hans Bakker in hi s research work also
corroborated the historical version. He also consulted religious
books of Hindus and other historical books. I have already referred
important extracts of his thesis on the subject . Thus, from the
material on record it transpires that site was used to be a temple on
Ram Janam Bhumi which was reconstructed in 12
th
century and the
same was demolished. A.S.I. also confirms ruins of 12
th
century
178
temple. Even the debris of the Babri mosque which were collected
on 6.12.1992 proves the existence of Ram Janam Bhumi temple
which was considered at the birth spot of Lord Ram. Fourteen
Kasauti pillars were taken from the old temple and were used in the
construction of the mosque by Muslim on which images of Hindu
Gods and Goddesses were engraved. Sita Rasoi and Charan Paduka
were identified by Hans Bakker. In this context para 78 of Dr. M
Ismail Faruqui and others Vs. Union of India and others 1994(6)
SCC 360 is relevant which reads as under:-
While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered would
not be an essential or integral part of such religious practice unless
the place has a particular significance for that religion so as to form
an essential or integral part thereof. Places of worship of any
religion having particular significance for that religion, to make it
an essential or integral part of the religion, stand on a different
footing and have to be treated differently and more reverentially.
Thus, there is overwhelming evidence that the property in
suit is site of Ram Janambhumi.It is corroborated by religious
records, religious books, judicial records and relevant scriptures .
The fact of destruction of Ram Janambhumi temple is also
established. This fact is also established that Hindus were
worshipping Ram Janambhumi. Revenue records also show entry of
Janambhumi, which was not objected by the parties at any point of
179
time. The first revenue record also refers the place as Janambhumi,
probably for the reason that Britishers after investigation and
research work of P. Carnegy were satisfied that the place of birth of
Lord Ram is site of Babri mosque. William Finch and others also
corroborated the version that Hindus were worshipping the site as
Ram Janambhumi. Version of William Finch is more acceptable for
the reason that according to Muslims the mosque was constructed in
the year 1528 while William Finch visited Ayodhya in the early 17
th
century, that is, about 70 years after the demolition of the temple.
Thus, his information and description about the place was based on
correct appreciation of facts and on the basis of information based
on faith and belief of Hindus, P. Carnegy also acknowledged the
work of William Finch and others .
On the basis of the statements of parties it further transpires
that there is no dispute between the parties that Lord Ram took
birth at Ayodhya. The only dispute is with regard to birth spot. The
parties admit the existence of Ram Kot ,i.e. fort of Lord Ram. There
is overwhelming evidence that after the destruction of old temple
celebration of Ram Naumi was going on at Ayodhya. Even in those
days five lakh people used to assemble to celebrate the festival of
Ram Naumi. Thus, the circumstantial evidence available on record
fully corroborate the report of the ASI and if read in the light of
historical account given by William Finch and others leaves no
room for doubt that Janambhumi was worshipped along with
180
Charan Paduka and Sita Rasoi by Hindus. I may further clarify that
according to Hindus place of worship may be deemed to be a deity
itself with or without any idol. Ritually among Hindus this is
considered as a deity at other religious place like Gangotri,
Yamnotri,Gaya, Kedar Nath Amaranath etc. Even at Jagannathpuri
the deities are changed after 12 years. Even then the place is
worshipped like a deity. Thus, without any form or shape the place
can also be worshipped without idols. The deities were installed in
the inner courtyard on 22/23.12.1949. They are being
worshipped by devotees. Thus, the Hindus are worshipping the
place in dispute as Ram Janambhumi as a sacred place of
pilgrims from time immemorial and idols were also worshipped,
firstly at Ram Chabutra and thereafter idols were shifted on
22/23. 12.1949 at birth spot of Lord Rama inside the disputed
structure. Thus from Hindu side overwhelming evidence has been
produced to establish that the property in suit is site of Janambhumi
of Lord Ram. It is also established from record that idols and
objects of worship were placed inside the disputed building in the
night intervening 22/23-12.1949. Hindus in general and defendants
in particular were worshipping Charan Paduka, Sita Rasoi and
other idols even after the construction of Babri mosque in the outer
courtyard. Hindus were worshipping the place in dispute as a sacred
place of birth of Lord Rama in the inner courtyard from times
immemorial.
181
Hindus have proved the existence of temple construed in 12
th
century at the site of Ram Janambhumi. They have also proved
their belief that the place was worshipped like a deity and further
proved the fact that after demolition of the temple the mosque was
constructed after re-using material and broken part of the temple
and the deities.
Lastly, against the tenets of Islam, no mosque can be
constructed after demolishing a temple. Further according to the
Muslims, inside the mosque there cannot be two spots of worship,
one for Hindus and another for Muslims. Thus, temple and mosque
cannot co-exist at the disputed spot. Accordingly it is established
that even prior to the destruction of Hindu temple which was
constructed in 12
th
century, no mosque can come into existence
against the tenets of Islam at the site of birth place of Lord Ram.
It is manifestly established by public record, gazetteers,
history accounts and oral evidence that the premises, in dispute, is
the place where Lord Ram was born as son of Emperor Dashrath of
solar dynasty. According to the traditions and faith of devotees of
Lord Ram, the place where He manifested Himself has ever been
called as Sri Ram Janmbhumi by all and sundry through ages. Thus,
the Asthan, Ram Janambhumi has been an object of worship as a
deity by the devotees of Lord Ram as it personifies the spirit of
divine worshipped in the form of Ram Lala or Lord Ram, the child.
Ram Janmbhumi is also a deity and a juridical person. It is
182
established from evidence that the Hindus worship the divine place
in the form of God. The Hindus can mediate upon the formless and
shapeless divine. The spirit of Divine is indestructible. Birth place
is sacred place for Hindus and Lord Ram, who is said to be
incarnation of God, was born at this place. The Hindus since times
immemorial and for many generations constantly hold in great
esteem and reverence the Ram Janmbhumi where they believe that
Lord Ram was born. It is established by tradition and classical legal
literature relating to the Hindus and according to their belief and
faith that the place is regarded as a deity. This place, according to
Hindu religion, is symbol and embodiment of spiritual purpose and
the property is dedicated and vested with the Asthan, Janmbhumi.
This place being worshipped as idol from times immemorial and
dedicated property vests in idol as juristic person. Thus, the place
according to the Smirit have to be considered as a deity like Agni
and Vayu being worshipped. They are shapeless and formless but
they attain the divinity. If the public go for worship and consider
that there is divine presence, then it is temple which has already
been held by Hon'ble apex court in 1999(5) SCC page 50 Ram
Janki Deity Vs. State of Bihar.
In view of Gokul Nath Ji Mahraj Vs. Nathji Bhogilal AIR
1953 Allahabad 552, after the length of time it is impossible to
prove by affirmative evidence that there was any consecration ever
by faith and belief. It is believed that the place is the place which
183
was considered by all times as a deity and is being worshipped like
a deity. Accordingly Asthan is personified as the spirit of divine
worshipped as the birth place of Lord Ram.
In view of the discussions, referred to above, it is established
that the property in suit is the site of Janm Bhumi of Ram Chandra
Ji and Hindus in general and the defendants in particular had the
right to worship Charan, Sita Rasoi, other idols and other object of
worship existed upon the property in suit. It is also established that
Hindus have been worshipping the place in dispute as Janm Sthan
i.e. a birth place and visiting it as a sacred place of pilgrimage as a
right since times immemorial. After the construction of the disputed
structure it is not proved the deities were installed inside the
disputed structure before 22/23.12.1949, but the place of birth is a
deity. It is also proved that in the outer courtyard was in exclusive
possession of Hindus and they were worshipping throughout and in
the inner courtyard (in the disputed structure) they were also
worshipping. It is also established that the disputed structure cannot
be treated as a mosque as it came into existence against the tenets of
Islam.
In view of the above findings issues No.11,13,14,19-a and
19-c are decided against the plaintiffs.
ISSUES NO. 16 & 22
16. To what relief, if any, are the plaintiffs or any of them,
entitled?
184
22. Whether the suit is liable to be dismissed with special
costs?
FINDINGS
These issues are inter related and conveniently be decided at
one place. The Hon'ble Apex Court in Dr. Ismail Farooqui Vs.
Union of India, 1994 (6) SCC 390, directed this Court to consider
the title of the parties. Plaintiffs have claimed title through adverse
possession and have also relied upon certain revenue records,
which has been discussed while deciding issues by me. Thus, on
the basis of revenue record the plaintiffs have failed to establish the
title and adverse possession over the property in suit. Plaintiffs
have further failed to establish their exclusive possession over the
property in suit till 22
nd
December, 1949. Hon'ble Apex Court
upheld the validity of provisions of Acquisition of Certain Area at
Ayodhya, 1993 in Dr. Ismail Faruqui case (supra) and held that the
Central Government can acquire any place of worship. At para- 78
Apex Court held that the place of birth has a particular significance
for Hindus and it should be treated on different footing, which reads
as under:-
78. While offer of prayer or worship is a religious
practice, its offering at every location where such prayers
can be offered would not be an essential or integral part of
such religious practice unless the place has a particular
significance for that religion so as to form an essential or
185
integral part thereof. Places of worship of any religion
having particular significance for that religion, to make
it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and
more reverentially.
On behalf of Hindus it is urged that the plaintiffs are not
entitled for the relief claimed and as such the relief is barred by the
provisions of Section 42 of the Specific Relief Act,1877 which is at
par with Section 34 of the Specific Relief Act,1963 on the ground
that they have superior fundamental rights. Contentions of Hindus
are as under:-
The Hindus have superior fundamental right than the
Muslims under articles 25 & 26 of the Constitution of India for
the reasons that performing customary rituals and offering
service worship to the lord of universe to acquire merit and to
get salvation as such it is integral part of Hindu Dharma &
religion in view whereof it is humbly submitted that the instant
suit is liable to be dismissed with exemplary cost:
1. In (1998) 8 SCC 296 (Mr. X v. Hospital Z.) the Honble
Supreme Court held that where there is a clash of two
Fundamental Rights, the Right which would advance the
public morality or public interest would alone be enforced
through the process of Court. In other words the superior
Fundamental Right would prevail. Relying on said judgment
it is submitted that the pilgrimage, service and worship as
186
well as performance of customary rituals at Sri
Ramjanamsthan which has been described as Babri Mosque
in the plaint is integral part of Hinduism as it has been
commanded by the Holy Divine Scripture Sri Atharv Ved, the
Holy Sacred Scripture Sri Skand Puran & Sri Narsimh Puran,
Sri Valmiki Ramayana, The Sacred Religious Book Sri
Ramacharitamanasa that the persons must visit the birth place
of the Lord of Universe Sri Ram and by doing so they will
acquire merit of visiting all the sacred places, performing of
all yajnas (sacrifice) and gifting of thousands of cows etc. as
also they will get salvation. But in no sacred holy books of
Islam it has been mentioned that offering prayer at the birth
place of Sri Ram which has been described as Babri Mosque
in the plaint is integral part of Islam. As such the Hindus
have superior Fundamental Right to enforce through this
Honble Court and the instant suit is liable to be dismissed as
Sthandil of Sri Ram which is a deity cannot be declared as
mosque otherwise it will infringe Fundamental Rights of the
Hindus guaranteed under Article 25 and 26 of the
Constitution of India. Relevant paragraph nos.44 and 45 of
the said judgment read as follows:
44. Ms Y, with whom the marriage of the appellant
was settled, was saved in time by the disclosure of the
vital information that the appellant was HIV(+). The
disease which is communicable would have been
positively communicated to her immediately on the
consummation of marriage. As a human being, Ms Y
187
must also enjoy, as she obviously is entitled to, all the
Human Rights available to any other human being.
This is apart from, and in addition to, the Fundamental
Right available to her under Article 21, which, as we
have seen, guarantees right to life to every citizen of
this country. This right would positively include the
right to be told that a person, with whom she was
proposed to be married, was the victim of a deadly
disease, which was sexually communicable. Since
right to life includes right to lead a healthy life so as
to enjoy all the faculties of the human body in their
prime condition, the respondents, by their disclosure
that the appellant was HIV(+), cannot be said to have,
in any way, either violated the rule of confidentiality or
the right of privacy. Moreover, where there is a clash
of two Fundamental Rights, as in the instant case,
namely, the appellants right to privacy as part of right
to life and Ms Ys right to lead a healthy life which is
her Fundamental Right under Article 21, the right
which would advance the public morality or public
interest, would alone be enforced through the process
of court, for the reason that moral considerations
cannot be kept at bay and the Judges are not expected
to sit as mute structures of clay in the hall known as
the courtroom, but have to be sensitive, in the sense
that they must keep their fingers firmly upon the pulse
of the accepted morality of the day. (See: Allen: Legal
Duties)
45. AIDS is the product of undisciplined sexual
impulse. This impulse, being a notorious human failing
if not disciplined, can afflict and overtake anyone
howsoever high or, for that matter, how low he may be
in the social strata. The patients suffering from the
dreadful disease AIDS deserve full sympathy. They
are entitled to all respect as human beings. Their
society cannot, and should not be avoided, which
otherwise, would have a bad psychological impact
upon them. They have to have their avocation.
Government jobs or service cannot be denied to them
as has been laid down in some American decisions.
(See: School Board of Nassau Country, Florida v.
Airline
8
; Chalk v. USDC CD of Cal.
9
; Shuttleworth v.
Broward Cty.
10
; Raytheon v. Fair Employment and
Housing Commission, Estate of Chadbourne
11
. But
sex with them or the possibility thereof has to be
avoided as otherwise they would infect and
188
communicate the dreadful disease to others. The Court
cannot assist that person to achieve that object.
2. In (1994) 6 SCC 360 (M. Ismail Faruqui (Dr.) v. Union of
India) the Honble Supreme Court has held that the Right to
Practise, Profess and Propagate Religion guaranteed under
Article 25 of the Constitution does not extend to the Right of
Worship at any and every place of worship so that any
hindrance to worship at a particular place per se may infringe
the religious freedom guaranteed under Articles 25 and 26 of
the Constitution of India. The protection under Articles 25
and 26 is to religious practice which forms integral part of
practice of that religion. While offer of prayer or worship is a
religious practice, its offering at every location where such
prayers can be offered would not be an essential or integral
part of such religious practice unless the place has a
particular significance for that religion so as to form an
essential or integral part thereof. Places of worship of any
religion having particular signifgicance of that religion to
make it an essential or integral part of the religion stand on a
different footing and have to be treated differently and more
reverentially. Relying on said judgment it is submitted that
Sri Ramjanamsthan has particular significance for the
Hinduism as visiting and performing customary rites confer
merit and gives salvation it is firm belief of the Hindus based
189
on their sacred Divine Holy Scriptures which belief neither
can be scrutinized by any Court of Law nor can be
challenged by the persons having no faith in Hinduism as this
is conscience of the Hindus having special protection under
Article 25 of the Constitution of India. Relevant paragraph
77 and 78 of the said judgment read as follows:
77. It may be noticed that Article 25 does not contain
any reference to property unlike Article 26 of the
Constitution. The right to practise, profess and
propagate religion guaranteed under Article 25 of the
Constitution does not necessarily include the right to
acquire or own or possess property. Similarly this right
does not extend to the right of worship at any and
every place of worship so that any hindrance to
worship at a particular place per se may infringe the
religious freedom guaranteed under Articles 25 and 26
of the Constitution. The protection under Articles 25
and 26 of the Constitution is to religious practice
which forms an essential and integral part of the
religion. A practice may be a religious practice but not
an essential and integral part of practice of that
religion.
78. While offer of prayer or worship is a religious
practice, its offering at every location where such
prayers can be offered would not be an essential or
integral part of such religious practice unless the place
has a particular significance for that religion so as to
form an essential or integral part thereof. Places of
worship of any religion having particular significance
for that religion, to make it an essential or integral part
of the religion, stand on a different footing and have to
be treated differently and more reverentially.
3. In M. Ismail Faruqui (Dr.) v. Union of India (supra) the
Honble Supreme Court held that a mosque is not an essential
part of the practice of the religion of Islam and namaz
(prayer) by Muslims can be offered any where even in open.
190
The Right to Worship is not at any and every place so long as
it can be practised effectively, unless the Right to Worship at
a particular place is itself an integral part of that right.
Relying on said ratio of law it is submitted that without
offering prayer at Sri Ramjanamsthan described as Babri
mosque in the plaint it can be practised somewhere else but
offering prayer in stead of Sri Ramjanamsthan at any other
place cannot be practised because the merit which is obtained
by worshiping at the birth place of Sri Ram cannot be
obtained by doing so at other places and it will be contrary to
the holy Divine Sacred Scripture of the Hindus and will cause
extinction of a most sacred shrine of the Hindus. Relevant
paragraph nos.80 to 87 of the said judgment read as follows:
80. It has been contended that a mosque enjoys a
particular position in Muslim Law and once a mosque
is established and prayers are offered in such a
mosque, the same remains for all time to come a
property of Allah and the same never reverts back to
the donor or founder of the mosque and any person
professing Islamic faith can offer prayer in such a
mosque and even if the structure is demolished, the
place remains the same where the namaz can be
offered. As indicated hereinbefore, in British India, no
such protection was given to a mosque and the mosque
was subjected to the provisions of statute of limitation
thereby extinguishing the right of Muslims to offer
prayers in a particular mosque lost by adverse
possession over that property.
81. Section 3(26) of the General Clauses Act
comprehends the categories of properties known to
Indian Law. Article 367 of the Constitution adopts
this secular concept of property for purposes of
our Constitution. A temple, church or mosque etc. are
essentially immovable properties and subject to
191
protection under Articles 25 and 26. Every immovable
property is liable to be acquired. Viewed in the proper
perspective, a mosque does not enjoy any additional
protection which is not available to religious places of
worship of other religions.
82. The correct position may be summarised thus.
Under the Mahomedan Law applicable in India, title to
a mosque can be lost by adverse possession (See
Mullas Principles of Mahomedan Law, 19th Edn., by
M. Hidayatullah Section 217; and Shahid Ganj v.
Shiromani Gurdwara
3
13). If that is the position in law,
there can be no reason to hold that a mosque has a
unique or special status, higher than that of the places
of worship of other religions in secular India to make it
immune from acquisition by exercise of the sovereign
or prerogative power of the State. A mosque is not an
essential part of the practice of the religion of Islam
and namaz (prayer) by Muslims can be offered
anywhere, even in open. Accordingly, its acquisition is
not prohibited by the provisions in the Constitution of
India. Irrespective of the status of a mosque in an
Islamic country for the purpose of immunity from
acquisition by the State in exercise of the sovereign
power, its status and immunity from acquisition in the
secular ethos of India under the Constitution is the
same and equal to that of the places of worship of the
other religions, namely, church, temple etc. It is neither
more nor less than that of the places of worship of the
other religions. Obviously, the acquisition of any
religious place is to be made only in unusual and
extraordinary situations for a larger national purpose
keeping in view that such acquisition should not result
in extinction of the right to practise the religion, if the
significance of that place be such. Subject to this
condition, the power of acquisition is available for a
mosque like any other place of worship of any religion.
The right to worship is not at any and every place, so
long as it can be practised effectively, unless the right
to worship at a particular place is itself an integral part
of that right.
Maintainability of the Reference
83. In the view that we have taken on the question of
validity of the statute (Act No. 33 of 1993) and as a
result of upholding the validity of the entire statute,
except Section 4(3) thereof, resulting in revival of the
pending suits and legal proceedings wherein the
dispute between the parties has to be adjudicated, the
192
Reference made under Article 143(1) becomes
superfluous and unnecessary. For this reason, it is
unnecessary for us to examine the merits of the
submissions made on the maintainability of this
Reference. We, accordingly, very respectfully decline
to answer the Reference and return the same.
Result
84. The result is that all the pending suits and legal
proceedings stand revived, and they shall be proceeded
with, and decided, in accordance with law. It
follows further as a result of the remaining enactment
being upheld as valid that the disputed area has vested
in the Central Government as a statutory receiver with
a duty to manage and administer it in the manner
provided in the Act maintaining status quo therein by
virtue of the freeze enacted in Section 7(2); and the
Central Government would exercise its power of
vesting that property further in another authority or
body or trust in accordance with Section 8(1) of the
Act in terms of the final adjudication in the pending
suits. The power of the courts in the pending legal
proceedings to give directions to the Central
Government as a statutory receiver would be
circumscribed and limited to the extent of the area left
open by the provisions of the Act. The Central
Government would be bound to take all necessary
steps to implement the decision in the suits and other
legal proceedings and to hand over the disputed area to
the party found entitled to the same on the final
adjudication made in the suits. The parties to the suits
would be entitled to amend their pleadings suitably in
the light of our decision.
85. Before we end, we would like to indicate the
consequence if the entire Act had been held to be
invalid and then we had declined to answer the
Reference on that conclusion. It would then result in
revival of the abated suits along with all the interim
orders made therein. It would also then result
automatically in revival of the worship of the idols by
Hindu devotees, which too has been stopped from
December 1992 with all its ramifications without
granting any benefit to the Muslim community whose
practice of worship in the mosque (demolished on 6-
12-1992) had come to a stop, for whatever reason,
since at least December 1949. This situation, unless
altered subsequently by any court order in the revived
193
suits, would, therefore, continue during the pendency
of the litigation. This result could be no solace to the
Muslims whose feelings of hurt as a result of the
demolition of mosque, must be assuaged in the manner
best possible without giving cause for any legitimate
grievance to the other community leading to the
possibility of reigniting communal passions
detrimental to the spirit of communal harmony in a
secular State.
86. The best solution in the circumstances, on revival
of suits is, therefore, to maintain status quo as on 7-1-
1993 when the law came into force modifying the
interim orders in the suits to that extent by curtailing
the practice of worship by Hindus in the disputed area
to the extent it stands reduced under the Act instead of
conferring on them the larger right available under the
court orders till intervention was made by legislation.
87. Section 7(2) achieves this purpose by freezing the
interim arrangement for worship by Hindu devotees
reduced to this extent and curtails the larger right they
enjoyed under the court orders, ensuring that it cannot
be enlarged till final adjudication of the dispute and
consequent transfer of the disputed area to the party
found entitled to the same. This being the purpose and
true effect of Section 7(2), it promotes and strengthens
the commitment of the nation to secularism instead of
negating it. To hold this provision as anti-secular and
slanted in favour of the Hindu community would
be to frustrate an attempt to thwart anti-secularism and
unwittingly support the forces which were responsible
for the events of 6-12-1992.
4. AIR 1966 SUPREME COURT 1119 "Shastri
Yagnapurushdasji v. Muldas Bhundardas Vaishya" a
constitution Bench of the Honble Supreme Court of India
inferred that according to Hindu Dharma the ultimate goal of
humanity is the release and freedom from the unceasing cycle
of births and rebirths; Moksha or Nirvana, which is the
ultimate aim of Hindu religion and philosophy, represents the
state of absolute absorption and assimilation of the individual
194
soul with the infinite. Acceptance of the Vedas with
reverence; recognition of the fact that the means or ways to
salvation are diverse; and realisation of the truth that the
number of gods to be worshipped is large, that indeed is the
distinguishing feature of Hindu religion'. This definition
brings out succinctly the broad distinctive features of Hindu
religion. Relying on said judgment it is respectfully
submitted that as according to the Holy Devine Srimad
Atharv- Ved, Sri Skand Puran, Sri Narsimh Puran,Sri Valmiki
Ramayan, Sri Ram-charitmanas etc. a Hindu gets salvation
on visiting and having a look of Sthandil / Site of Sri
Ramjanamsthan in Ayodhya as well as by performing
customary rituals thereon, pilgrimage to said most holiest
place and performing service and worship thereon is integral
part of Hinduism guaranteed under Articles 25 and 26 of the
Constitution of India deprivation wherefrom would amount
to infringement of Fundamental right of freedom of religion
of the Hindus and extinction of sacred place of Hiindus
which is easiest means of ultimate end of salvation for the
Hindus. Relevent paragraph 39-41 of the said judgment reads
as follows:
39. Whilst we are dealing with this broad and
comprehensive aspect of Hindu religion, it may be
permissible to enquire what, according to this
religion, is the ultimate goal of humanity? It is the
release and freedom from the unceasing cycle of
195
births and rebirths; Moksha or Nirvana, which is the
ultimate aim of Hindu religion and philosophy,
represents the state of absolute absorption and
assimilation of the individual soul with the infinite.
What are the means to attain this end? On this vital
issue, there is great divergence of views; some
emphasise the importance of Gyan or knowledge,
while others extol the virtues of Bhakti or devotion;
and yet others insist upon the paramount importance
of the performance of duties with a heart full of
devotion and mind inspired by true knowledge. In
this sphere again, there is diversity of opinion,
though all are agreed about the ultimate goal.
Therefore, it would be inappropriate to apply the
traditional tests in determining the extent of the
jurisdiction of Hindu religion. It can be safely
described as a way of life based on certain basic
concepts to which we have already referred.
40. Tilak faced this complex and difficult problem of
defining door or at least describing adequately
Hindu religion and he evolved a working formula
which may be regarded as fairly adequate and
satisfactory. Said Tilak: "Acceptance of the Vedas
with reverence; recognition of the fact that the
means or ways to salvation are diverse; and
realisation of the truth that the number of gods to be
worshipped is large, that indeed is the distinguishing
feature of Hindu religion(11-A)''. This definition
brings out succinctly the broad distinctive features of
Hindu religion. It is somewhat remarkable that this
broad sweep of Hindu religion has been eloquently
described by Toynbee. Says Toynbee: "When we
pass from the plane of social practice to the plane of
intellectual outlook. Hinduism too comes out well by
comparison with the religions and ideologies of the
South-West Asian group. In contrast to these
Hinduism has the same outlook as the pre-Christian
and pre-Muslim religions and philosophies of the
Western half of the old world. Like them, Hinduism
takes it for granted that there is more than one valid
approach to truth and to salvation and that these
different approaches are not only compatible with
each other, but are complementary (12)*''
(11-A)
B. G. Tilak's Gitarahasaya''.
* (12) "The Present day experiment in Western
Civilisation'' by Toynbee, page 46-49.
41. The Constitution-makers were fully conscious of
196
this broad and comprehensive character of Hindu
religion; and so, while guaranteeing the fundamental
right to freedom of religion, Explanation II to Art. 25
has made it clear that in sub-clause (b) of clause. (2),
the reference to Hindus shall be construed as
including a reference to persons professing the Sikh,
Jaina or Buddhist religion, and the reference to
Hindu religious institutions shall be construed
accordingly.
5. In AIR 1996 SUPREME COURT 1765 = (1996) 9 SCC 548
"A. S. Narayana Deekshitulu v. State of A.P." the Honbe
Supreme Court held that a religion undoubtedly has its basis
in a system of belief and doctrine which are regarded by
those who profess religion to be conducive to their spiritual
well-being; and religion is not merely an opinion, doctrine or
belief. It has outward expression in acts as well. What are
essential parts of religion or religious belief or matters of
religion and religious practice is essentially a question of fact
to be considered in the context in which the question has
arisen and the evidence - factual or legislative or historic -
presented in that context is required to be considered and a
decision reached. Relying on said judgment it is submitted
that performing customary rituals and service worship at Sri
Ramajanamasthan is integral part of Hindus religious
practices but offering prayer on that sacred place is not
integral part of Islam. Relevant paragraph 89-91 of the said
judgment reads as follows:
89. A religion undoubtedly has its basis in a system
197
of beliefs and doctrine which are regarded by those
who profess religion to be conducive to their
spiritual well-being. A religion is not merely an
opinion, doctrine or belief. It has outward expression
in acts as well. It is not every aspect of religion that
has been safeguarded by Articles 25 and 26 nor has
the Constitution provided that every religious
activity cannot be interfered with. Religion,
therefore, be construed in the context of Articles 25
and 26 in its strict and etymological sense. Every
religion must believe in a conscience and ethical and
moral precepts. Therefore, whatever binds a man to
his own conscience and whatever moral or ethical
principle regulate the lives of men believing in that
theistic, conscience or religious belief that alone can
constitute religion as understood in the Constitution
which fosters feeling of brotherhood, amenity,
fraternity and equality of all persons which find their
foot-hold in secular aspect of the Constitution.
Secular activities and aspects do not constitute
religion which brings under its own cloak every
human activity. There is nothing which a man can
do, whether in the way of wearing clothes or food or
drink, which is not considered a religious activity.
Every mundane or human activity was not intended
to be protected by the Constitution under the guise
of religion. The approach to construe the protection
of religion or matters of religion or religious
practices guaranteed by Articles 25 and 26 must be
viewed with pragmatism since by the very nature of
things, it would be extremely difficult, if not
impossible, to define the expression religion of
matters or religion or religious belief or practice.
90. In pluralistic society like India, as stated earlier,
there are numerous religious groups who practise
diverse forms of worship or practise religions,
rituals, rites etc, even among Hindus, different
denominates and sects residing within the country or
abroad profess different religious faiths, beliefs,
practices. They seek to identify religion with what
may in substance be mere facets of religion. It
would, therefore, be difficult to devise a definition of
religion which would be regarded as applicable to all
religions or matters of religious practices. To one
class of persons a mere dogma or precept or a
doctrine may be pre-dominant in the matter of
religion; to others, rituals or ceremonies may be
198
predominant facets of religion; and to yet another
class of persons a code of conduct or a mode of life
may constitute religion. Even to different persons
professing the same religious faith some of the facets
of religion may have varying significance. It may
not be possible, therefore, to devise a precise
definition of universal application as to what is
religion and what are matters of religious belief or
religious practice. That is far from saying that it is
not possible to State with reasonable certainty the
limits within which the Constitution conferred a
right to profess religion. Therefore, the right to
religion guaranteed under Article 25 or 26 is not an
absolute or unfettered right to propagating religion
which is subject to legislation by the State limiting
or regulating any activity - economic, financial,
political or secular which are associated with
religious belief, faith, practice or custom. They are
subject to reform on social welfare by appropriate
legislation by the State. Though religious practices
and performances of acts pursuance of religious
belief are as much a part of religion as faith or belief
in a particular doctrine, that by itself is not
conclusive or decisive. What are essential parts of
religion or religious belief or matters of religion and
religious practice is essentially a question of fact to
be considered in the context in which the question
has arisen and the evidence - factual or legislative or
historic - presented in that context is required to be
considered and a decision reached.
93. The religious freedom guaranteed by Articles 25
and 26, therefore, is intended to be a guide to a
community-life and ordain every religion to act
according to its cultural and social demands to
establish an egalitarian social order. Articles 25 and
26, therefore, strike a balance between the rigidity of
right to religious belief and faith and their intrinsic
restrictions in matters of religion, religious beliefs
and religious practices and guaranteed freedom of
conscience to commune with his Cosmos, Creator
and realise his spiritual self. Sometimes, practices
religious or secular, are intricably mixed up. This is
more particularly so in regard to Hindu religion
because under the provisions of ancient Samriti,
human actions from birth to death and most of the
individual actions from day to day are regarded as
religious in character in one facet or the other. They
sometimes claim the religious system or sanctuary
199
and seek the cloak of constitutional protection
guaranteed by Articles 25 and 26. One, hinges upon
constitutional religious model and another
diametrically more on traditional point of view. The
legitimacy of the true categories is required to be
adjudged strictly within the parameters of the right
of the individual and the legitimacy of the State for
social progress, well-being and reforms, social
intensification and national unity. Law is a social
engineering and an instrument of social change
evolved by a gradual and continuous process. As
Banjamin Cardozo has put it in his "Judicial
Process," life is not a logic but experience. History
and customs, utility and the accepted standards of
right conduct are the forms which singly or in
combination shall be the progress of law. Which of
these forces shall dominate in any case depends
largely upon the comparative importance or value of
the social interest that will be, thereby, impaired.
There shall be symmetrical development with
history or custom when history or custom has been
the motive force or the chief one in giving shape to
the existing rules and with logic or philosophy when
the motive power has been theirs. One must get the
knowledge just as the legislature gets it from
experience and study and reflection in proof from
life itself. All secular activities which may be
associated with religion but which do not relate or
constitute an essential part of it may be amenable to
State regulations but what constitutes the essential
part of religion may be ascertained primarily from
the doctrines of that religion itself according to its
tenets, historical background and change in evolved
process etc. The concept of essentially is not itself a
determinative factor. It is one of the circumstances to
be considered in adjudging whether the particular
matters of religion or religious practices or belief are
an integral part of the religion. It must be decided
whether the practices or matters are considered
integral by the community itself. Though not
conclusive, this is also one of the facets to be
noticed. The practice in question is religious in
character and whether it could be regarded as an
integral and essential part of the religion and if the
Court finds upon evidence adduced before it that it is
an integral or essential part of the religion, Article 25
accords protection to it. Though the performance of
certain duties is part of religion and the person
200
performing the duties is also part of the religion or
religious faith or matters of religion, it is required to
be carefully examined and considered to decide
whether it is a matter of religion or a secular
management by the State. Whether the traditional
practices are matters of religion or integral and
essential part of the religion and religious practice
protected by Articles 25 and 26 is the question.
Whether hereditary archaka is an essential and
integral part of the Hindu religion is the crucial
question?
6. In AIR 1996 SUPREME COURT 1765 = (1996) 9 SCC 548
"A. S. Narayana Deekshitulu v. State of A.P." the Honbe
Supreme Court distinguished between Dharma and religion
stating that that the Hindu Dharma is eternal and since time
immemorial. Relying on said judgment it is submitted that as
the Lord of Sri Ram any protector of Dharma and has shown
path of Dharma to the mankind, His Place of Birth has
special significance for the Hindus and it is not only part of
religious practices but the epicenter of the Hindu Dharma.
Relevant paragraph nos. 143 to 148 of the said judgment read
as follows:
143. Very often the words "religion" and the same
concept or notion; to put it differently, they are used
inter-changeably. This, however, is not so, as would
become apparent from what is being stated later,
regarding our concept of dharma. I am of the
considered view that the word religion in the two
articles has really been used, not as colloquially
understood by the word religion, but in the sense of
it comprehending our concept of dharma. The
English language having had no parallel word to
dharma, the word religion was used in these two
articles. it is a different matter that the word dharma
has now been accepted even in English language, as
would appear from Webster's New Collegiate
201
Dictionary which has defined it to mean : Dharma :
n (Skt. fr. dharayati he holds:) akin to L firmus
firm : custom or law regarded as duty : he basic
principles of cosmic or individual existence : nature :
conformity to one's duty and nature". The Oxford
Dictionary to one's duty and nature",. The Oxford
Dictionary defines dharma as : "Right behaviour,
virtue; the law (Skt. a decree, custom)".
144. The difference between religion and dharma is
eloquently manifested when it is remembered that
this Court's precept is
It is apparent that the word dharma in this canon or,
for that matter, in our saying :
,does not mean religion, but the same has been used
in the sense defined in the sense defined in the
aforesaid two dictionaries. This is how the President
of India, Dr. Shanker Dayal Sharma, understood the
word dharma in his address at the First Convocation
of the National Law School of India University
delivered on 25th September, 1993 at Bangalore.
145. Our dharma is said to be `Sanatana' i. e. one
which has eternal values: one which is neither time-
bound nor space-bound. It is because of this that Rig
veda has referred to the existence `Sanatan
Dharmani'. The concept of `dharma', therefore, has
been with us for time immemorial. The word is
derived from the root`Dh. r' - which denotes :
`upholding', supporting', nourishing' and sustaining',
It is because of this that in Karna Parva of the
Mahabharata, Verse- 58 in Chapter 69 says :
"Dharma is for the stability of the society, the
maintenance of social order and the general well-
being and progress of human king. Whatever
conduces to the fulfillment of these object is
Dharma; that is definite."
(This is the English translation of the Verse) as
finding place in the aforesaid Convocation Address
by Dr. Shanker Dayal Sharma.)
146. The Brhadaranyakopanisad identified Dharma
with Truth, and declared its supreme status thus :
" There is nothing higher than dharma. Even a very
weak man hopes to prevail over a very strong man
on the strength of dharma, just as (he prevails over a
wrong-doer) with the help of the King. So what is
called Dharma is really Truth. Therefore people say
202
about a man who declares the truth that he is
declaring dharma and about one who declares
dharma they say he speaks the truth. These two
(dharma and truth) are this."
(English translation of the original text as given in
the aforesaid convocation address).
147. The essential aspect of our ancient thought
concerning law was the clear recognition of the
supremacy of dharma and the clear articulation of
the status of `dharma', which is somewhat akin to the
modern concept of the rule of law. i. e. of all being
sustained and regulated by it.
148. In Verse- 9 of Chapter-5 in the Ashrama Vasika
Parva of the Mahabharata, dhritrashtra states to
Yudhisthira : "the State can only be preserved by
dharma- under the rule of law.
7. AIR 1982 SUPREME COURT 1107 "K. Rajendran v. State
of T.N." the Honble Supreme Court has quoted the statement
of the Lord of Universe Sri Rama from the Ramayana
depicting the attitude of an Indian ruler as an authority. From
said judgments it becomes crystal clear that even a statement
of the Lord of Sri Rama has greatest value for the Hindus as
such the religious value of His Birth place is beyond
description. Relevant paragraph 49 of the said judgment
reads as follows:
49. The nature of the relationship that exists or
ought to exist between the Government and the
people in India is different from the relationship
between the ruler and his subjects in the West. A
study of the history of the fight for liberty that has
been going on in the West shows that it has been a
continuous agitation of the subjects for more and
more freedom from a king or the ruler who had once
acquired complete control over the destinies of his
subjects. The Indian tradition or history is entirely
different. The attitude of an Indian ruler is depicted
203
in the statement of Sri Rama in the Ramayana thus :
.. (Ramayana III-10-3)
(Kshatriyas (the kings) bear the bow (wield the
power) in order to see that there is no cry of distress
(from any quarter)).
8. AIR 1998 SUPREME COURT 3164 = (1998) 7 SCC 392
"State of Gujarat v. Hon'ble High Court of Gujarat" the
Honble Supreme court has observed that the world would
have been poorer without the great epic "Ramayana". From
the said judgment it becomes clear that each and every thing
connected with the Lord of Universe is of great value to the
Hindus and extinction of the most holiest shrine Sri
Ramajanamsthan will deprive the Hindus from acquiring un-
parallel merit and salvation which can be obtained only by
visiting the said sacred shrine and performing customary
ritual there. Relevant paragraph 31 of the said judgment reads
as follows:
31. It is a grand transformation recorded in the
epics that the hunter Valmiki turned out to be a poet
of eternal recognition. If the powers which brought
about that transformation had remained inactive the
world would have been poorer without the great epic
"Ramayana". History is replete with instances of
bad persons transforming into men of great
usefulness to humanity. The causes which would
have influenced such swing may be of various kinds.
Forces which condemn a prisoner and consign him
to the cell as a case of irredeemable character belong
to the pessimistic society which lacks the vision to
see the innate good in man.
9. In AIR 1954 SUPREME COURT 282 "Commr., Hindu
Religious Endowments, Madras v. Lakshmindra Thirtha
204
Swamiar of Shirur Mutt" the Honble Supreme court held
that a religion undoubtedly has its basis in a system of beliefs
or doctrines which are regarded by those who profess that
religion as conducive to their spiritual well being, but it will
not be correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of
ethical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship
which are regarded as integral parts of religion and these
forms and observances might extend even to matters of food
and dress. The guarantee under the Constitution of India not
only protects the freedom of religious opinion but it protects
also acts done in pursuance of a religion and this is made
clear by the use of the expression "practice of religion" in
Art. 25. Relying on said judgment it is submitted that
performing customary rites at Sri Ramajanamasthan is
integral part of religions practices of the Hindus as Hindus
believe that therein there is invisible power of the Lord of
Universe Sri Ram who confers merit on devotees and gives
them salvation as such said practice is integral part of Hindu
Dharma & Religion and is protected under Article 25 & 26 of
the constitution of India. Relevant paragraph nos. 17, 18 and
19 of the said judgment read as follows:
17. It will be seen that besides the right to manage
its own affairs in matters of religion which is given
205
by cl. (b), the next two clauses of Art. 26 guarantee
to a religious denomination the right to acquire and
own property and to administer such property in
accordance with law. The administration of its
property by a religious denomination has thus been
placed on a different footing from the right to
manage its own affairs in matters of religion. The
latter is a fundamental right which no Legislature
can take away, where as the former can be regulated
by laws which the legislature can validly impose. It
is clear, therefore, that questions merely relating to
administration of properties belonging to a religious
group or institution are not matters of religion to
which cl. (b) of the Article applies.
What then are matters of religion? The word
"religion" has not been defined in the Constitution
and it is a term which is hardly susceptible of any
rigid definition. In an American case --- -'Vide Davis
v. Beason', (1888) 133 US 333 at p. 342 (G), it has
been said :
"that the term 'religion' has reference to one's views
of his relation to his Creator and to the obligations
they impose of reverence for His Being and
character and of obedience to His will. It is often
confounded with 'cultus' of form or worship of a
particular sect, but is distinguishable from the latter."
We do not think that the above definition can be
regarded as either precise or adequate. Articles 25
and 26 of our Constitution are based for the most
part upon Art 44(2), Constitution of Eire and we
have great doubt whether a definition of 'religion' as
given above could have been in the minds of our
Constitution-makers when they framed the
Constitution.
Religion is certainly a matter of faith with
individuals or communities and it is not necessarily
theistic. There are well known religions in India like
Buddhism and Jainism which do not believe in God
or in ay Intelligent First Cause. A religion
undoubtedly has its basis in a system of belief or
doctrines which are regarded by those who profess
that religion as conductive to their spiritual well
being, but it would not be correct to say that religion
is nothing else but a doctrine or belief. A religion
may not only lay down a code of ethical rules for its
followers to accept, it might prescribe rituals and
observances, ceremonies and modes of worship
which are regarded as integral parts of religion, and
206
these forms and observances might extend even to
matters of food and dress.
18. The guarantee under our Constitution not only
protects the freedom of religious opinion but it
protects also acts done in pursuance of a religion and
this is made clear by the use of the expression
"practice of religion' in Art. 25. Latham, C. J. of the
High Court of Australia while dealing with the
provision of S. 116, Australian Constitution which
'inter alia' forbids the Commonwealth to prohibit the
'free exercise of any religion' made the following
weighty observations ---- 'Vide Adelaide Company
v. The Commonwealth', 67 CLR 116 at p. 127 (H) :
"It is sometimes suggested in discussions on the
subject of freedom of religion that, though the civil
government should not, interfere with religious
'opinions', it nevertheless may deal as it pleases with
any 'acts' which are done in pursuance of religious
belief without infringing the principle of freedom of
religion. It appears to me to be difficult to maintain
this distinction as relevant to the interpretation of S.
116. The Section refers in express terms to the
'exercise' of religion, and therefore it is intended to
protect from the operation of any Commonwealth
laws acts which are done in the exercise of religion.
Thus the Section goes far beyond protecting liberty
of opinion. It protects also acts done in pursuance of
religious belief as part of religion".
These observations apply fully to the protection of
religion as guaranteed by the Indian Constitution.
Restrictions by the State upon free exercise of
religion are permitted both under Arts. 25 and 26 on
grounds of public order, morality and health. Clause
(2) (a) of Art. 25 reserves the right of the State to
regulate or restrict any economic, financial, political
and other secular activities which may be associated
with religious practice and there is a further right
given to the State by sub-cl. (b).under which the
State can legislate for social welfare and reform even
though by so doing it might interfere with religious
practices. The learned Attorney-General lays stress
upon cl (2) (a) of the Article and his contention is
that all secular activities, which may be associated
with religion but do not really constitute an essential
part of it, are amenable to State regulation.
19. The contention formulated in such broad terms
207
cannot, we think be supported, in the first place,
what constitutes the essential part of a religion is
primarily to be ascertained with reference to the
doctrines of that religion itself. If the tenets of any
religious sect of the Hindus prescribe that offerings
of food should be given to the idol at particular
hours of the day, that periodical ceremonies should
be performed in a certain way at certain periods of
the year or that there should be daily recital of sacred
texts or oblations to the sacred fire, all these would
be regarded as parts of religion and the mere fact
that they involve expenditure of money or
employment of priests and servants or the use of
marketable commodities would not make them
secular activities partaking of a commercial or
economic character; all of them are religious
practices and should be regarded as matters of
religion within the meaning of Art. 26(b).
10.In AIR 1954 SUPREME COURT 282 "Commr., Hindu
Religious Endowments, Madras v. Lakshmindra Thirtha
Swamiar of Shirur Mutt" the Honble Supreme court held
that Under Art. 26(b), therefore, a religious denomination or
organisation enjoys complete autonomy in the matter of
deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no
outside authority has any jurisdiction to interfere with their
decision in such matters and ; under Art. 26(d), it is the
fundamental right of a religious denomination or its
representative to administer its properties in accordance with
law; and the law, therefore, must leave the right of
administration to the religious denomination itself subject to
such restrictions and regulations as it might choose to
impose. A law which takes away the right of administration
208
from the hands of a religious denomination altogether and
vests it in any other authority would amount to a violation of
the right guaranteed under cl. (d) of Art. 26. Relying on said
ratio of law it is submitted that prohibiting the Hindus from
performing their customary religious rituals at Sri
Ramajanamasthan which has been described as Babari
Mosque and not handing over management of the said sacred
shrine of the Hindus shall infringe fundamental rights of the
Hindus guaranteed under Articles 25 and 26 of the
constitution of India. Relevant paragraph 22 of the said
judgment reads as follows:
22. It is to be noted that both in the American as
well as in the Australian Constitution the right to
freedom of religion has been declared in unrestricted
terms without any limitation whatsoever.
Limitations, therefore, have been introduced by
courts of law in these countries on grounds of
morality, order and social protection, An adjustment
of the competing demands of the interests of
Government and constitutional liberties is always a
delicate and difficult task and that is why we find
difference of judicial opinion to such an extent in
cases decided by the American courts where
questions of religious freedom were involved.
Our Constitution-makers, however, have embodie
the limitations which have been evolved by judicial
pronouncements in America or Australia in the
Constitution itself and the language of Arts. 25 and
26 is sufficiently clear to enable us to determine
without the aid of foreign authorities as to what
matters come within the purview of religion and
what do not. As we have already indicated, freedom
of religion in our Constitution is not confined to
religious beliefs only, it extends to religious
practices as well subject to the restrictions which the
Constitution itself had laid down. Under Art. 26(b),
therefore a religious denomination or organization
209
enjoys complete autonomy in the matter of deciding
as to what rites and ceremonies are essential
according to the tenets of the religion they hold and
no outside authority has any jurisdiction to interfere
with their decision in such matters.
Of course, the scale of expenses to be incurred in
connection with these religious observances would
be a matter of administration of property belonging
to the religious denomination and can be controlled
by secular authorities in accordance with any law
laid down by a competent legislature, for it could not
be the injunction of any religion to destroy the
institution and its endowments by incurring wasteful
expenditure on rites and ceremonies. It should be
noticed, however, that under Art. 26 (d), it is the
fundamental right of a religious denomination or its
representative to administer its properties in
accordance with law, and the law, therefore, must
leave the right of administration to the religious
denomination itself subject to such restrictions and
regulations as it might choose to impose.
A law which takes away the right of administration
from the hands of a religious denomination
altogether and vests it in any other authority would
amount to a violation of the right guaranteed under
cl. (d) of Art 26.
11. AIR 2004 SUPREME COURT 2984 = (2004) 12 SCC 770
"Commr. of Police v. Acharya Jagadishwarananda Avadhuta"
It is settled law that protection under Articles 25 and 26 of the
Constitution of India extend guarantee for rituals and
observances, ceremonies and modes of worship which form
part and parcel of religion. Practice becomes part of religion
only if such practice is found to be essential and integral part.
It is only those practices which are integral part of religion
that are protected. What would constitute an essential part of
religion or religious practice is to be determined with
reference to the Doctrine of a particular religion which
210
includes practices which are regarded by the Community as
part and parcel of that religion. Test has to be applied by
Courts whether a particular religious practice is regarded by
the community practicing that particular practice is integral
part of the religion or not. It is also necessary to decide
whether the particular practice is religious in character or not
and whether the same can be regarded as an integral or
essential part of religion which has to be decided based on
evidence. Many symbols have been used in Hindu Literature.
Different kinds of symbols and images have different
sanctity. Brading of chest, arms and other parts of body
represent to the weapons of symbols of Siva. Relying on said
judgment it is submitted that being Shartric (Scriptural)
command visiting Sri Ramajanamasthan and performing
service worship there is integral part of religion of Hindus
but it is not integral part of Muslim religion as such instant
suit is liable to be dismissed. Relevant paragraph nos. 80 to
86 read as follows:
80. It would be pertinent to mention that the Sikh
Community carry "Kirpans" as a symbol of their
religious practice and the Gurkhas the "Kukris" or
"Dagger". So also, the Hindus are permitted to carry
the idol of "Ganesa" in procession before immersion
in the sea during Vinayaka Chaturti Celebrations.
Persons professing Islamic Faith are allowed to take
out procession during "Moharrum" Festival and
persons participating in such processions beat their
chest with hands and chains and inflict injuries on
them and the same has been permitted as a religious
practice of that community.
211
81. Each deity presides over a certain function, has a
certain consort, uses a particular vehicle, giving
them a concrete aspect that appeals to less spiritually
sophisticated lay people. All these insignia have a
deep philosophical symbolism. What might interest
us presently is that all these vehicles are mostly
drawn from the world of animals, birds, and even
reptiles. For example, Brahma has a swan, Vishnu
has a garuda, a type of eagle, Siva rides a bull,
Ganesa a mouse, Subrahmanya a peacock, and so
on. The idea is only to emphasize the kinship with
animals. Trees have the divinity Vanadevata. War is
presided over by the Goddess Chemundi riding a
lion. Sound has a divinity, the Nadabrahmam. The
Goddess Saraswathi presides over music and arts.
Lakshmi sitting on a lotus deals with wealth.
Parvathi, the consort of Siva, rules the entire Nature.
All these divinities serve to consecrate every aspect
of daily life. The whole pantheon serves to
emphasize the one ultimate Reality.
82. Reading and reciting old scriptures, for instance,
Ramayana or Quran or Bible or Gurur Granth Sahib
is as much a part of religion as offering food to deity
by a Hindu or bathing the idol or dressing him and
going to a temple, mosque, church or gurudwara. . . .
83. The authorities concerned can step in and take
preventive measures in the interest of maintenance
of Law and Order if such religious processions
disturb Law and Order. It has to be held that the right
to carry Trishul, Conch or Skull is an integral and
essential part of religious practice and the same is
protected under Article 25 of the Constitution of
India. However, the same is subject to the right of
the State to interfere with the said practice of
carrying Trishul, Conch or Skull if such procession
creates Law and Order problems requiring
intervention of concerned authorities who are
entrusted with the duty of maintaining Law and
Order.
What is Religion
84. Religion is a social system in the name of God
laying down the Code of Conduct for the people in
Society. Religion is a way of life in India and it is an
unending discovery into unknown world. People
living in Society have to follow some sort of
religion. It is a social Institution and Society accepts
212
religion in a form which it can easily practice.
George Barnard Shaw stated, "There is nothing that
people do not believe if only it be presented to them
as Science and nothing they will not disbelieve if it
is presented to them as Religion." Essentially,
Religion is based on "Faith". Some critics say that
Religion interfered with Science and Faith. They say
that religion led to the growth of blind faith, magic,
sorcery, human sacrifices etc. No doubt, history of
religion shows some indications in this direction but
both Science and Religion believe in faith. Faith in
Religion influences the temperament and attitude of
the thinker. Ancient civilization viz., the Indus
Valley Civilization shows faith of people in Siva and
Sakthi. The period of Indus Valley Civilization was
fundamental religion and was as old as at least
Egyptian and Mesopotamian Culture. People
worship Siva and the Trishul (Trident), the emblem
of Siva which was engraved on several seals. People
also worshipped stones, trees, animals and Fire.
Besides, worship of stones, trees, animals etc. by the
primitive religious tribes shows that animism viz.,
worship of trees, stones, animals was practiced on
the strong belief that they were abodes of spirits,
good or evil. Modern Hinduism is to some extent
includes Indus Valley Civilization Culture and
religious faith. Lord Siva is worshipped in the form
of Linga. Many symbols have been used in Hindu
Literature. Different kinds of symbols and images
have different sanctity. Brading of chest, arms and
other parts of body represent to the weapons of
symbols of Siva. Modern Hinduism has adopted and
assimilated various religious beliefs of primitive
tribes and people. The process of worship has
undergone various changes from time to time.
85. The expression of 'RELIGION' has not been
defined in the Constitution and it is incapable of
specific and precise definition. Article 25 of the
Constitution of India guarantees to every person,
freedom of conscience and right freely to profess,
practice and propagate religion. No doubt, this right
is subject to public order related to health and
morality and other provisions relating to
Fundamental Right. Religion includes worship, faith
and extends to even rituals. Belief in religion is
belief of practice a particular faith, to preach and to
profess it. Mode of worship is integral part of
213
religion. Forms and observances of religion may
extend to matters of Food and Dress. An act done in
furtherance to religion is protected. A person
believing in a particular religion has to express his
brief in such acts which he thinks proper and to
propagate his religion. It is settled law that
protection under Articles 25 and 26 of the
Constitution of India extend guarantee for rituals and
rituals and observances, ceremonies and modes of
worship which form part and parcel of religion.
Practice becomes part of religion only if such
practice is found to be essential and integral part. It
is only those practices which are integral part of
religion that are protected. What would constitute an
essential part of religion or religious practice is to be
determined with reference to the Doctrine of a
particular religion which includes practices which
are regarded by the Community as part and parcel of
that religion. Test has to be applied by Courts
whether a particular religious practice is regarded by
the community practising that particular practice is
integral part of the religion or not. It is also
necessary to decide whether the particular practice is
religious in character or not and whether the same
can be regarded as an integral or essential part of
religion which has to be decided based on evidence.
86. It is not uncommon to find that those delve deep
into scriptures to ascertain the character and status of
a particular practice. It has been authoritatively laid
down that Cow Sacrifice is not an obligatory over-
act for a Muslim to exhibit his religious belief. No
Fundamental Right can be claimed to insist on
slaughter of a healthy cow on a Bakrid Day.
Performance of "Shradha" and offering of "Pinda" to
ancestors are held to be an integral part of Hindu
Religion and religious practice. Carrying "Trishul"
or "Trident" and "skull" by a few in procession to be
taken out by a particular community following a
particular religion is by itself an integral part of
religion. When persons following a particular
religion carry Trishul, Conch or Skull in a
possession, they merely practice which is part of
their religion which they wanted to propagate by
carrying symbols of their religions such as Trishul,
Conch etc. If the conscience of a particular
community has treated a particular practice as an
integral or essential part of religion, the same is
214
protected by Articles 25 and 26 of the Constitution
of India.
12.In AIR 1969 SUPREME COURT 563 "Kamaraju Venkata
Krishna Rao v. Sub-Collector, Ongole" the Honble Supreme
court held that the entire objects of Hindu endowments will
be found included within the enumeration of Ishta and Purta
works. In the Rig Veda Ishtapurttam (sacrifices and charities)
are described as means of the going to heaven. In
commenting on the same passage Sayana explained
Ishtapurtta to denote "the gifts bestowed in Srauta and
Smarta rites." In the Taittiriya Aranyaka, Ishtapurtta occur in
much the same sense and Sayana in commenting on the same
explains Ishta to denote "Vedic rites like Darsa, Purnamasa
etc." and Purta "to denote Smarta works like tanks, wells
etc." From the aforesaid judgment it is crystal clear that
service worship of the Deities comes within the definition of
Ishta as such depriving Hindus to worship at Sri
Ramjanamsthan on Sthandil would amount to depriving them
from the result of Ishta i.e. ultimate goal of salvation at the
cost of less expenditure and less efforts. In view of such
religious belief of the Hindus the Suit primises is not fit for
being declared as mosque it is respectfully
submitted.Relevant extract from para 6 of the said judgement
reads as follows:
215
6. . "From very ancient times the sacred
writing of the Hindus divided works productive of
religious merit into two divisions named ishta and
purta a classification which has come down to our
times. So much so that the entire objects of Hindu
endowments will be found included within the
enumeration of ishta and purta works. In the Rig
Veda ishtapurttam (sacrifices and charities) are
described as means of the going to heaven. In
commenting on the same passage Sayana explained
ishtapurtta to denote "the gifts bestowed in srauta
and amarka rites." In the Taittiriya Aranyaka,
ishtapurtta occur in much the same sense and Sayana
in commenting on the same explains ishta to denote
"Vedic rites like Darsa, Purnamasa etc." and purta
"to denote Smarkta works like tanks, wells etc."
13.IN AIR 1995 SUPREME COURT 1531 = (1995) 3 SCC 635
"Sarla Mudgal, President, Kalyani v. Union of India" the
Honble Supreme Court held that religion is more than mere
matter of faith. The Constitution by guaranteeing freedom of
conscience ensured inner aspects of religious belief. And
external expression of it were protected by guaranteeing right to
freely practice and propagate religion. Relying on said judgment
it is submitted that as the Suit premises is the Birth Place of the
Lord of Universe Sri Rama and his invisible power is present in
the said Sthandil the Hindus have superior fundamental right to
worship at that sacred place according to injunctions of their
Sacred Scriptures in comparison to the fundamental right of the
Muslims to offer their prayer at that place which in not integral
part of Muslim religion. Relevant paragraph 43 of the said
judgment reads as follows:
216
43. When Constitution was framed with secularism
as its deal and goal, the consensus and conviction to
be one, socially, found its expression in Article 44 of
the Constitution. But religious freedom, the basic
foundation of secularism, was guaranteed by Articles
25 to 28 of the Constitution. Article 25 is very
widely worded. It guarantees all persons, not only
freedom of conscience but the right to profess,
practice and propagate religion. What is religion?
Any faith or belief. The Court has expanded
religious liberty in its various phases guaranteed by
the Constitution and extended it to practices and
even external overt acts of the individual. Religion
is more than mere matter of faith. The Constitution
by guaranteeing freedom of conscience ensured
inner aspects of religious belief. And external
expression of it were protected by guaranteeing right
to freely practice and propagate religion. Reading
and reciting holy scriptures, for instance, Ramayana
or Quran or Bible or Guru Granth Sahib is as much a
part of religion as offering food to deity by a Hindu
or bathing the idol or dressing him and going to a
temple, mosque, church or gurudwara.
14.In AIR 1962 SUPREME COURT 853 "Sardar Syedna Taher
Saifuddin Saheb v. State of Bombay" held that the protection
of Articles 25 and 26 of the Constitution of India is not
limited to matters of doctrine or belief, they extend also to
acts done in pursuance of religion and therefore contain a
guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion as also that
what constitutes an essential part of a religion or religious
practice has to be decided by the courts with reference to the
doctrine of a particular religion and practices which are
regarded by the community as a part of its religion.
217
34. The content of Arts. 25 and 26 of the
Constitution came up for consideration before this
Court in 1954 SCR 1005 : (AIR 1954 S.C. 282),
Ramanuj Das v. State of Orissa 1954 SCR 1046 :
(AIR 1954 SC 400), 1958 SCR 895 : (AIR 1958
S.C. 255); (Civil Appeal No. 272 of 1960 D/- 17-3-
1961 : (AIR 1961 SC 1402), and several other cases
and the main principles underlying these provisions
have by these decisions been placed beyond
controversy. The first is that the protection of these
articles is not limited to matters of doctrine or belief,
they extend also to acts done in pursuance of
religion and therefore contain a guarantee for rituals
and observances, ceremonies and modes of worship
which are integral parts of religion. The second is
that what consitutes an essential part of a religion or
religious practice has to be decided by the courts
with reference to the doctrine of a particular religion
and include practices which are regarded by the
community as a part of its religion.
15. In Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC
498, the Honble Supreme Court held that the Hindus are
majority in population and Hinduism is a major religion. While
Articles 25 and 26 granted religious freedom to minority religions
like Islam, Christianity and Judaism, they do not intend to deny the
same guarantee to Hindus. Relying on said judgement it is most
respectfully and humbly submitted that this Honble Court would be
pleased to dismiss the instant Suit and to protect the integral part of
religious and customary practices of the Hindus i.e. their right to
offer service and worship to the Lord of Universe Sri Ramlalas Idol
& Sthandil at Sri Ramajanamasthan which has been described as
Babari Mosque in the plaint otherwise the superior fundamental
right of the Hindus shall be infringed and they shall suffer with
irreparable loss and injury which cannot be compensated in any
218
manner whatsoever and justice shall suffer adversely. Relevant
paragraph 26 and 27 of the said judgment read as follows:
26. Hindus are majority in population and Hinduism
is a major religion. While Articles 25 and 26 granted
religious freedom to minority religions like Islam,
Christianity and Judaism, they do not intend to deny
the same guarantee to Hindus. Therefore, protection
under Articles 25 and 26 is available to the people
professing Hindu religion subject to the law therein.
The right to establish a religious and charitable
institution is a part of religious belief or faith and,
though law made under clause (2) of Article 25 may
impose restrictions on the exercise of that right, the
right to administer and maintain such institution
cannot altogether be taken away and vested in other
party; more particularly, in the officers of a secular
Government. The administration of religious
institution or endowment or specific endowment
being a secular activity, it is not an essential part of
religion and, therefore, the legislature is competent
to enact law, as in Part III of the Act, regulating the
administration and governance of the religious or
charitable institutions or endowment. They are
not part of religious practices or customs. The State
does not directly undertake their administration and
expend any public money for maintenance and
governance thereof. Law regulates appropriately for
efficient management or administration or
governance of charitable and Hindu religious
institutions or endowments or specific endowments,
through its officers or officers appointed under the
Act.
27. The question then is whether legislative
declaration of the need for maintenance,
administration and governance of all charitable and
Hindu religious institutions or endowments or
specific endowments and taking over the same and
vesting the management in a trustee or board of
trustees is valid in law. It is true, as rightly
contended by Shri P.P. Rao, that the legislature
acting on the material collected by Justice Challa
Kondaiah Commission amended and repealed the
predecessor Act of 1966 and brought the Act on
statute. Section 17 of the predecessor Act of 1966
had given power to a hereditary trustee to be the
chairman of the board of non-hereditary trustees.
Though abolition of hereditary right in trusteeship
under Section 16 has already been upheld, the
charitable and religious institution or endowment
owes its existence to the founder or members of the
family who would resultantly evince greater and
keener responsibility and interest in its proper and
efficient management and governance. The
autonomy in this behalf is an assurance to achieve
due fulfilment of the objective with which it was
founded unless, in due course, foul in its
219
management is proved. Therefore, so long as it is
properly and efficiently managed, he is entitled to
due freedom of management in terms of the deed of
endowment or established practice or usage. In case
a board of trustees is constituted, the right to preside
over the board given to the founder or any member
of his family would generate feelings to actively
participate, not only as a true representative of the
source, but the same would also generate greater
influence in proper and efficient management of the
charitable or religious institution or endowment.
Equally, it enables him to persuade other members to
follow the principles, practices, tenets, customs and
sampradayams of the founder of the charitable or
religious institution or endowment or specific
endowment. Mere membership along with others,
many a times, may diminish the personality of the
member of the family. Even in case some funds are
needed for repairs, improvement, expansion etc., the
board headed by the founder or his family member
may raise funds from the public to do the needful,
while the executive officer, being a government
servant, would be handicapped or in some cases may
not even show interest or inclination in that behalf.
With a view, therefore, to effectuate the object of the
religious or charitable institution or endowment or
specific endowment and to encourage establishment
of such institutions in future, making the founder or
in his absence a member of his family to be a
chairperson and to accord him major say in the
management and governance would be salutary and
effective. The founder or a member of his family
would, thereby, enable to effectuate the proper,
efficient and effective management and governance
of charitable or religious institution or endowments
or specific endowment thereof in future. It would
add incentive to establish similar institutions.
Thus, in view of my findings on issues, referred to above,
plaintiffs are not entitled for the relief claimed and the suit is liable
to be dismissed, but defendants have failed to point out the
circumstances under which they are entitled for special costs.
Order
The suit is dismissed but the parties shall bear their own
costs.
Tripathi/Tanveer
Akhilesh/Raghvendra
1
Reserved
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD,
LUCKNOW BENCH, LUCKNOW
O.O.S NO. 5 OF 1989
(R.S.NO. 236/1989
1. Bhagwan Sri Rama Virajman at Sri Rama Janma Bhumi,
Ayodhya, also called Bhagwan Sri Rama Lala Virajman,
represented by next friend, Sri Deoki Nandan Agrawal
Senior Advocate/ Retired High Court Judge,56 Dilkusha,
Allahabad is no more and in his place Sri Triloki Nath
Pandey S/o Askrut Pandey, Karsewakpuram, Ayodhya,
Distt. Faizabad is substituted as next friend of plaintiff
nos.1 and 2.
2. Asthan Sri Rama Janma Bhumi, Ayodhya, represented
by next friend, Sri Deoki Nandan Agrawal Senior
Advocate/ Retired High Court Judge,56 Dilkusha,
Allahabad is no more and in his place Sri Triloki Nath
Pandey aged about 65 years S/o Askrut Pandey,
Karsewakpuram, Ayodhya, Distt. Faizabad.
3. Sri Deoki Nandan Agrawal Senior Advocate/ Retired High
Court Judge,56 Dilkusha, Allahabad is no more and in his
place Sri Triloki Nath Pandey aged about 65 years S/o
Askrut Pandey, Karsewakpuram, Ayodhya, Distt.
Faizabad.
......Plaintiffs
Versus
1. Sri Rajendra Singh, adult, son of Late Sri Gopal Singh
Visharad, at present residing at Gonda, care of the State
Bank of India, Gonda Branch Gonda.
2. Param Hans Mahant Ram Chandra Das of Digambar
Akhara, Ayodhya. (Dead)
2/1. Mahant Suresh Das aged about 55 years, Chela late
Mahant Ram Chandra Das of Digambar Akhara,
Ayodhya.
3. Nirmohi Akhara Mohalla Ram Ghat, Ayodhya, through its
present Mahant Jagannath Das, aged about 54, years,
Chela of Vaishnav Das Nirmohi resident of Mohalla
Ram Ghat Nirmohi Bazar Pargana Haveli Awadh,
Ayodhya, District FaizabadSubstituted by court dated
1.9.95.
4. Sunni Central Board of Waqfs, U.P. having its office at Moti
Lal Bose Road, Lucknow.
2
5. Sri Mohammad Hashim, Adult, son of Sri Karim Bux,
resident of Mohalla Sutahti, Ayodhya
6. Sri Mohammad Ahmad, Adult son of Sri Ghulam Hasan,
resident of Mohalla Rakabganj, Faizabad.
7. State of Uttar Pradesh, through the Secretary, Home
Department, Civil Secretariat, Lucknow.
8. The Collector & District Magistrate, Faizabad.
9. The City Magistrate, Faizabad.
10. The Senior Superintendent of Police, Faizabad.
11. The President, All India Hindu Mahasabha, New Delhi.
12. The President, All India Arya Samaj, Dewan Hall, Delhi.
13. The President, All India Sanatan Dharma Sabha Delhi.
14. Sri Dharam Das Adult, Chela Baba Abhiram Das,
Resident of Hanuman Garhi, Ayodhya.
15. Sri Pundarik Misra, Adult son of Sri Raj Narain Misra,
resident of Baham pur Sarai, Rakabganj, Faizabad.
16. Sri Ram Dayal Saran Adult, Chela Ram Lakhan Saran,
resident of Ramcharit Manas Bhavan, Mohalla Ramkot,
Ayodhya.
17. Sri Ramesh Chandra Tripathi Adult, son of Sri PARASH
Ram Tripathi, resident of Village Bhagwan Patti, Pargana
Minjhaura, Tehsil Akbarpur, District Faizabad.
Parties mentioned at serial Nos. 18 and 19 have
been deleted vide order dated 20.09.1989.
20. Sri Umesh Chandra Pandey, Adult, son of Sri Uma
Shankar Pandey, Advocate, resident of Ranopali,
Ayodhya.
21. Sri Rama Janma Bhumi Nyas, a Trust, having its office
at Sankat Mochan Ashram, Sri Hanuman Mandir, Rama
Krishan Puram, Sector VI, New Delhi, through Sri
Ashok Singhal, Managing Trustee.
22. Shia Central Board of Waqfs, U.P. Lucknow.
Party mentioned at serial No. 23 has been deleted
vide order dated 27.01.1992.
24. Prince Anjum Quder, Prestrict, All India Shia
Conference, Qaomi Ghar, Nadan Mahal Road, Lucknow.
25. All India Shia Conference, through Sri S. Mohammad
Hasnain Abidi, Honorary General Secretary, Qaomi
3
Ghar, Nadan Mahal Road, Lucknow.
26. Hafiz Mohd. Siddiqui, aged about 46 years son of late Haji
Mohd. Ibrahim, resident of Lalbagh Moradabad, General
Secretary, Jamaitul Ulema Hind U.P. Jamait Building B.N. Verma
Road, Kutchery Road, LucknowAmended vide order dated
15.4.92 r/w order dated 21.4.92
27. Vakeeluddin aged about 55 years, son of Ismail, resident
of Madarpur Pergna and Tehsil Tanda District Faizabad.
...............Defendants
----------
Judgment delivered by
Hon'ble Dharam Veer Sharma, J.
This suit was initially filed by Bhagwan Sri Ram Virajman at Sri
Ram Janma Bhumi, Ayodhya also called Bhagwan Sri Rama Lala
Virajman represented by the then next friend, Sri Deoki Nandan
Agarwala, Asthan Sri Ram Janma Bhumi, Ayodhya represented by next
friend Sri D. N. Agarwal and Sri Deoki Nandan Agarwala for a
declaration that the entire premises of Sri Ram Janma Bhumi at
Ayodhya as described and delineated in Annexures 1 and 2 belong to
the plaintiff's deities and for 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 Ram Janma Bhumi after demolishing and
removing the existing buildings and structures etc. situate there at, in
so far as it may be necessary or expedient to do so for the said
purpose. After the death of Sri Deoki Nandan Agarwal, Sri T. P. Verma
was substituted as next friend and after his removal Sri Triloki Nath
Pandey has been substituted as next friend of plaintiffs no.1 and 2
and defendant no.3 in place of Sri T.P. Verma.
According to the plaint allegations the plaintiffs no. 1 and 2
4
,namely, Bhagwan Sri Ram Virajman at Sri Ram Janma Bhumi,
Ayodhya also called Sri Ram Lala Virajman, and the Asthan Sri Rama
Janama Bhumi, Ayodhya, with the other idols and places of worship
situate thereat, are juridical persons with Bhagwan Sri Rama as the
presiding Deity of the place. The plaintiff no.3 is a Vaishnava Hindu,
and seeks to represent the Deity and the Asthan as a next friend.
The place Sri Rama Janma Bhumi is too well known at Ayodhya
need not any description for purposes of identification of the subject
matter of dispute in this plaint. Two site plans of the building premises
and of the adjacent area known as Sri Rama Janma Bhumi, prepared
by Sri Shiv Shankar Lal pleader in the discharge of his duty as a
commissioner appointed by the Court of Civil Judge, Faizabad, in Suit
No.2 of 1950: Sri Gopal Singh Visharad Versus Sri Zahur Ahmad and
Others; along with his report dated 25.5.1950, are being annexed to
the plaint and made part of it as Annexures I and II respectively. The
Suit No.2 of 1950 was filed on 16.1.1950, by Sri Gopal Singh Visharad
against Zahoor Ahmad and other persons. The plaintiff of that suit
died recently and his name has been substituted by his son, who has
been impleaded as plaintiff No.1/1 in this suit. The five defendants of
the suit are dead and their names struck off under the order of this
Court. Therefore, they have not been impleaded as defendants no. 7
to 10 respectively in this suit also. In the above suit relief claimed was
for a declaration that the plaintiff was entitled to perform the Puja and
to have Darshan of Bhagwan Ram Chandra and others Virajman at
Asthan Janma Bhumi without any hindrance, dispute or interruption
and the permanent injunction restraining the defendant and their
successors from ever removing the idols of Sri Bhagwan Ram Chandra
and others Virajman at Asthan Janma Bhumi from the place where
5
they were, or closing the entrance gate or other passages of ingress
and egress, and from interfering or disturbing the Puja or Darshan in
any manner whatsoever, was also claimed.
Suit No.25 of 1950, was filed a few months later, by Paramhans
Ramchandra Das. This suit has been withdrawn by the plaintiff and
the third suit being suit no.26 of 1959 was thereafter filed in the Court
of Civil Judge, Faizabad by the Nirmohi Akhara, Ayodhya, who has
been impleaded as defendant no.3 in this suit, claiming the relief of
removal of Babu Priya Dutt Ram, defendant no.1 thereto from the
management and charge of the temple of Janma Bhumi with the idol
of Lord Ram Chandra and others installed therein. Babu Priya Dutt
was appointed as a Receiver in the year 1950 by the City Magistrate,
Faizabad in a proceeding under Section 145 of the Cr.P.C. 1898. The
defendants No. 2 to 5 of this suit are defendants no. 7 to 10 of this
suit. The other defendants have died and their legal representatives
have not been brought on the record obviously because the cause of
action did not survive against them.
Suit no. 12 of 1961 was thereafter filed by the Sunni Central
Board of Waqfs, U.P., and 8 other on 18.12.1961 in the Court of the
Civil Judge, Faizabad. The reliefs claimed were (a) A declaration that
the property indicated by the letters A B C D in the sketch map
annexed to the plaint is a public mosque commonly known as 'Babri
Masjid', and that the land adjoining the mosque shown in the sketch
map by letters E F G H is a public Muslim graveyard, and (b) 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. The Sunni Central
Board of Waqfs, U.P. is being impleaded as Defendant No.4 in this suit
6
and of the remaining plaintiffs of that suit, the only surviving plaintiffs
No. 7 and 9 are being impleaded as Defendants No. 5 and 6 hereto. Of
the defendants to that suit, the legal representatives of defendants
no. 1, 13 and 15, who have been impleaded therein, are being
impleaded as Defendants no.1, 14 and 16 respectively in this suit.
The surviving defendants no. 2,3, 5, 6, 7, 8, 10, 11, 12, 14, 17, 18 and
19 of that suit, are being impleaded as defendants no. 2, 3, 7, 8, 9,
10, 11, 12, 13, 15, 17, 18 and 19 respectively herein. Remaining
defendants no.4 and 16 have died and have been left out.
It has further been averred in the plaint that the order dated
8.8.1962 of the Court of the Civil Judge, Faizabad, in Suit No.12 of
1961, the plaintiffs thereof were permitted to sue, on behalf of the
entire Muslim community, the defendants no.1 to 4 therein as
representatives of, and for the benefit of the entire Hindu community.
Of them, defendant no.4 has since died. Defendants no. 10 to 19
were impleaded therein later, on their own request of themselves.
Defendant no.16 has since died, their legal representatives have not
been impleaded in that suit. They have, therefore, been left out in this
suit. By an order dated 4.8.1951, suits no. 2 and 25 of 1950 were
consolidated together and by an order dated 6.1.1964 all the suits
were consolidated and Suit No.12 of 1961 was made the leading case.
In suit no.2 of 1950 an ad-interim injunction was issued on 16.1.1950
in the terms prayed for but on an application made by the Defendant
District Magistrate, the ad-interim injunction was modified on
19.1.1950 to read as under:
The 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.
7
This order was confirmed by order dated 3.3.1951 in the
following terms:-
the interim injunction order dated 16.1.50 as modified on
19.1.50 shall remain in force until the suit is disposed of.
A first appeal from that order, being F.A.F.O No. 154 of 1951, in
the High Court at Allahabad, was dismissed by judgment dated
26.4.1955. The Interim injunction continues to remain in force, ever
since down to the present day. The plaintiffs went on to aver that
more than 25 years ago issues were framed but hearing has not yet
commenced. The Sewa and Puja of the plaintiff Deities has in the
meanwhile been looked after by a Receiver, to begin with by Babu
Priya Dutt Ram, appointed by the City Magistrate and later by Sri K.K.
Ram Verma, who worked upto 1970 onwards. He was discharged by
the Court of the IIIrd Additional District Judge, Faizabad, by order
dated 25.8.1988. Sri L.P.N. Singh was appointed Receiver, who
functioned upto 22.11.1988, when by an order of that date Sri Jamuna
Prasad Singh was appointed as a Receiver. It was expected that the
suits would be disposed of soon after consolidation of the above
suits. But for one reason or another, they continued to remain
pending, and still continue to remain pending, with a dim prospect of
their immediate hearing. Defendant no.20 moved an application in
the interest of worshippers, with the prayers for allowing a closer
Darshan in the Court of the Munsif Sadar, Faizabad, who refused to
pass orders but on appeal therefrom, the court of the District Judge,
Faizabad by an order dated 1.2.1986 directed the authorities to
remove the barrier by opening the locks on the gates O and P shown
in the map.
The plaintiff deities and their devotees are extremely unhappy
8
with the prolonged delay in the hearing and disposal of the said suits,
and are not satisfied with the working of the Receiver. It is believed
that a large portion of the money offered by the worshippers is being
misappropriated by the Pujaries and other Temple staff, and the
receiver has not controlled the same. The devotees of the plaintiff's
deities are desirous of having a new temple constructed, befitting of
their pristine glory, after removing the old structure at Sri Ram Janma
Bhumi, Ayodhya.
In order to improve the temple administration and to
reconstruct a new temple at Sri Ram Janma Bhumi, the sacred duty of
managing and performing the Sewa, Archana and Puja of the
plaintiff's deities and the task of protecting, renovating,
reconstructing and developing the Temple premises, in short, of
managing all their estate and all their affairs, was entrusted, by
unanimous public opinion, to Jagadguru Ramanandacharya Swami
Shivaramacharaya of Kashi, who was the head of the Ramananda
Sampradaya to which most of the Sadhus and Vairagis of Ayodhya
belong. The Trust was formally declared by the Hindu public by a deed
of trust dated 18.12.1985 and registered the same day by Sub-
Registrar, S.D.No.1, at Delhi vide No. 16510 in Additional Book No.4,
Volume 1156, at pages 64 to 69. A copy of the said Deed of Trust is
annexed to and made part of the plaint as Annexure III.
The said Trust Deed apart from declaring himself to be the First
Trustee for life and the Pramukh and Dharmakarta of the Trust, which
was named Sri Swami Shivaramacharya, and other persons were also
made trustees, Sri Vishnu Hari Dalmia, named the Treasurer and Sri
Ashok Singhal the Managing Trustee, the power was given to the
Marga Darshak Mandal of the Vishva Hindu Parisahd to nominate 4
9
Trustees who are Mahatmas from different parts of India, and to its
Governing Council to nominate 10 Trustees from among eminent
Hindu citizens of India, and in exercise of the said power four persons
were appointed Trustees from among the Mahatmas and from among
Hindu citizens of India. Sri justice Shiv Nath Katju, Retired Judge, High
Court, Allahabad, Sri Justice Deoki Nandan Agarwala, Retired Judge of
same Court, Allahabad, Rajmata Srimati Vijae Raje Scindhia of
Gwalior, Sri Satish Chandra Dikshit, Retired Director General of Police,
Uttar Pradesh, Lucknow and Sri Badri Prasad Toshniwal, Industrialist,
New Delhi were made trustees. Further Jagadguru Ramanandacharya
Swami Shivaramacharya of Kashi who was the Pramukh and
Dharmakarta of the Nyas and Paramhans Mahant Ramchandra Dasji
Maharaj of Digambar Akhara, Ayodhya are acting as a Pramukh and
Dharmkarta of the Nyas. Sant Pravar Prabhu Duttji Brahamchari, of
Sankirtan Bhawan Jhusi, died after the institution of the suit. Two
vacancies among the trustees from among the Mahatmas have been
filled up with Veetraag Sant Paramhans Pujya Swami Vamdeoji
Maharaj and Mahant Dharma Dasji Maharaj were appointed trustees.
From among the eminent Hindu citizens of India, four persons,
namely, Moropant Pingle, Sri Brahma Deoji, Sri Surya Krishnaji and Sri
Yashuvant Bhai Bhatt have been appointed trustees.
It has further been averred that Sri Rama Janma Bhumi Nyas is
directly interested in the Seva, Puja and other affairs of the plaintiff
deities. It is being impleaded as defendant no.21 in this suit.
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, inasmuch as neither the
10
presiding Deity of Bhagwan Sri Ram Virajman nor the Asthan Sri Rama
Janma Bhumi, the plaintiffs no. 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.
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 Ram 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.
It is manifestly established by public records of unimpeachable
authority that the premises in dispute is the place where Maryada
Purushottam Sri Ramchandra Ji Maharaj was born as the son of
Maharaja Dashrath of the solar Dynasty, which according to the
tradition and the faith of the devotees of Bhagwan Sri Rama is the
place where HE manifested HIMSELF in human form as an incarnation
of BHAGWAN VISHNU. The place has since ever been called Sri Rama
Janma Bhumi by all and sundry through the ages.
The place itself or the ASTHAN SRI RAMA JANAMA BHUMI as it
has come to be known, has been an object of worship as a Deity by
the devotees of BHAGWAN SRI RAMA, as it personafies the spirit of
the Divine worshipped in the form of SRI RAM LALA or Lord RAMA the
child. The Asthan was thus deified and has had a juridical personality
of its own even before the construction of a Temple building or the
installation of the idol of Bhagwan Sri Rama thereat. It has further
11
been stated that Hindus do not worship the stone or the metal
shaped into the form of their ISHTA DEVATA or the stone of SALIGRAM
which has no particular shape at all. They worship the Divine, which
has no quality or shape or form, but can be known only when it
manifests ITSELF in the form of an incarnation, and therefore, adopt
the form of his incarnation as their ISHTA DEVA. They can meditate
upon the formless and the shapeless DIVINE which is worshipped by
most Hindus, and not its material form or shape in an idol. This SPIRIT
of the DIVINE in an idol is invoked by the ritual of pranapratishtha.
The SPIRIT of the DIVINE is indestructible and ever remains present
everywhere at all times for any one to invoke it in any shape or form
in accordance with his own aspiration. Different persons are at
different levels of realization of the REALITY. Some find it helpful to
pursue a particular set of rituals for their spiritual uplift. A large
section of Hindus follow BHAKTI MARGA, and BHAGWAN SRI RAMA or
BHAGWAN SRI KRISHNA is their ISHTA DEVA.
According to the faith of the devotees of BHAGVAN SRI RAMA
LALA, or Lord Rama the Child, it is the spirit of BHAGWAN SRI RAMA
as the Divine Child which resides at Asthan Sri Rama Janma Bhumi
and can be experienced by those who pray there and invoke that
Spirit for their spiritual uplift. That Spirit is the Deity. An idol is not
necessary for invoking the Divine Spirit. Another example of such a
Deity is that of KEDARNATH. The temple of KEDARNATH has no idol in
it. It is the undulating surface of stone which is worshipped there as
the Deity. Still another example of such a Deity is the Vishnupad
Temple at Gaya. Similarly at Ayodhya the very Asthan Sri Ram Janma
Bhumi is worshipped as a Deity through such symbols of the Divine
Spirit as the Charan and the Sita Rasoi. The place is a deity. It has
12
existed in this immovable form through the ages, and has ever been
juridical persons. The actual and continuous performance of Puja of
such an immovable Deity by its devotees is not essential for its
existence as a Deity. The deity continues to exist so long as the place
exists, and being land, it is indestructible. Thus, Asthan Sri Rama
Janma Bhumi is an indestructible and immovable Deity who has
continued to exist throughout the ages.
According to 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 Baber's hordes. The material used was almost
all of it taken from the Temple including its pillars which were wrought
out of Kasauti or touchstone with figures of Hindu Gods and
Goddesses carved on them. There was a 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 of 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 Baber's time by Mir Baqi,
was in the possession and control of Hindus at that time. According to
the 1928 Edition of the Faizabad Gazetteer published by the
Government Press U.P. Ayodhya is pre-eminently a city of temples. It
is locally affirmed that at the time of the Musalman conquest there
were three important Hindu shrines at Ayodhya and little else. These
were the Janmasthan temple, the Swargaddwar and the Treta-ka-
Thakur. The Janmasthan was in Ramkot and marked the birthplace of
13
Rama. 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 devices. Their length is from seven to eight
feet, and the shape square at the base, centre and capital, the rest
being round or octagonal. The mosque has two inscriptions, one on
the outside and the other on the pulpit, both are in persian and bear
the date 935 Hijri and again according to the same Gazetteer. This
desecration of the most sacred spot in the city caused great
bitterness between Hindus and Musalmans. On many occasions the
feeling led to bloodshed, and in 1855 an open fight occurred, the
Musalmans occupying the Janmasthan in force and then making a
desperate assault on the Hanuman Garhi. They charged up the steps
of the temple, but were driven back with considerable loss. The
Hindus then made counter-attack and stormed the Janmasthan, at the
gate of which seventy-five Musalmans were buried, the spot being
known as the Ganj Shahidan or the martyr's resting place. Several of
the king's regiments were present, but their orders were not to
interfere. It is further averred that Maulvi Amir Ali of Amethi in
Lucknow organized a regular expedition with the object of destroying
the Hanuman Garhi, but he and his forces were stopped in the
Barabanki district. (Gazetteer of Barabanki, P. 168). It is said that upto
this time both Hindus and Musalmans used to worship in the same
building; but since the mutiny an outer enclosure has been put in
front of the mosque and the Hindus, who are forbidden access to the
inner yard, make their offerings on a platform which they have raised
14
in the outer one.
The disputed structure could not be a mosque as it was raised
by force of arms on land belonging to the plaintiff deities, after
destroying the ancient Temple situate thereat, with its materials
including the Kasauti pillars with figures of Hindus gods carved
thereon. According to para 24 of the plaint some salient points in this
regard have been mentioned.
(a) According to the Koran, ALLAH spoke to the Prophet thus:-
And fight for the religion of GOD against those who fight
against you; but transgress not by attacking them first, for
GOD loved not transgressors. And kill them wherever you
find them; and turn them out of that whereof they have
dispossessed you; for temptation to idolatory is more
grievous than slaughter. Yet fight not against them in the
holy temple, until they attack you therein
(b) According to all the Muslim authorities and precedents
and the decided cases also, ALLAH never accepts a dedication
of property which does not belong to the Waqif that is, the
person who purports to dedicate property to ALLAH for
purposes recognized as pious or charitable, as waqf under the
Muslim law. By his acts of trespass and violence for raising a
mosque on the site of the temple after destroying it by force,
Mir Baqi committed a highly un-Islamic act. His attempt to
convert the Temple into a mosque did not, therefore, create a
valid dedication of property to Allah, whether in fact or in law,
and it never became a mosque.
(c) In respect of all that Mir Baqi tried to do with the Temple,
the land always continued to vest in the Plaintiff Deities, and
15
they never surrendered their possession over it. Their
possession continued in fact and in law. The ASTHAN never
went out of the possession of the Deity and HIS worshippers.
They continued to worship HIM through such symbols as the
CHARAN and SITA RASOI, and the idol of BHAGWAN SRI RAM
LALA VIRAJMAN on the Chabutra, called the Rama Chabutra,
within the enclosed courtyard of the building directly in front of
the arched opening of its Southern dome. No one could enter
the building except after passing through these places of Hindu
worship. According to the Muslim religion and law there can be
no idol worship within the courtyard of a mosque, and the
massage to a mosque must be free and unobstructed and open
at all times to the 'Faithful'. It can never be through Hindu place
of worship. There can be no co-sharing of title or possession
with ALLAH in the case of mosque. His possession must be
exclusive.
(d) A mosque must be built in place of peace and quiet, but
near to a place where there is a sizeable Muslim population
according to the tenets of Islam, and as insisted upon by it, a
mosque cannot be built in a place which is surrounded on all
sides by Temples, where the sound of music or conch shells or
Ghanta Ghariyals must always disturb the peace and quiet of
the place.
(e) A mosque must have a minaret for calling the Azan.
(f) According to the claim laid by the Muslims in their Suit
No. 12 of 1961, the building is surrounded on all sides by
graveyard known as 'Ganj Shahidan'. The building could not be
a mosque and could not be used as a mosque for the offering of
16
prayers, except the funeral prayers on the death of a person
buried therein.
(g) There is no arrangement for storage of water for Wazoo
and there are the Kasauti pillars with the figures Hindu Gods
and Goddesses.
It has further been averred by the plaintiffs that the worship of
the plaintiff deities has continued since ever throughout the ages at
Sri Rama Janma Bhumi. The place belongs to the Deities. No valid
waqf was ever created or could have been created of the place or any
part of it, in view of the title and possession of the plaintiff deities
thereon. Neither ALLAH nor any person on his behalf had any
possession over any part of the premises at any time whatsoever, not
to speak of any adverse possession.
At any rate no prayers have ever been offered in the building at
Sri Rama Janma Bhumi, which was recorded as Janmasthan Masjid,
during the British times, and confined, after the annexation of Avadh
through the area within the boundary wall raised by them adjacent to
the arch openings, in the courtyard which is now enclosed by what
may now be described as the outer boundary wall. The domes of the
building and substantial parts of it were destroyed by the Hindus in
the year 1934 during the communal riots which occurred by way of
retaliation to cow slaughter by some Muslims at Ayodhya. Although
the building was got rebuilt by the Government, no one dared to offer
namaz therein. No action was taken by anyone for its use or
management as a mosque. Neither of the two Boards of Waqfs in U.P.,
namely the Sunni Central Board of Waqfs and the Shia Central Board
of Waqfs, created on the passing of the U.P. Muslim Waqfs Act in 1936,
took any action or positive steps for the establishment of the building
17
as a mosque. No one acted as Mutwalli or Khadim of the building as a
mosque.
After independence from the British Rule, the Vairagis and the
Sadhus and the Hindu public, dug up and levelled whatever graves
had been left in the area surrounding Sri Rama Janma Bhumi Asthan
and purified the place by Akhand Patha and japa by thousands of
persons all over the area. Ultimately, on the night between the 22
nd
/
23
rd
December, 1949 the idol of Bhagwan Sri Rama was installed with
the ceremony under the central dome of the building also. No
resistance was offered by any Muslim to any of these acts, the local
authorities found it difficult to get out of their old habits acquired
under the British Rule, and a First Information Report was recorded by
the Police on their own and proceedings were initiated by the
Additional City Magistrate Under Section 145 of the Code of Criminal
Procedure, 1898, by recording a Preliminary Order dated 29.12.1949.
The Magistrate did not identify any Hindu or Muslim individuals as
parties to the dispute, and merely said that he was satisfied on
information received from Police sources and 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 Babri Masjid and Janma Bhumi Mandir is likely to
lead to a breach of the peace. Babu Priya Dutt Ram was appointed
Receiver after his death in 1970 Sri K.K.Ram Verma was appointed in
his place by the City Magistrate, although the City Magistrate had
dropped the proceedings under Section 145 Cr.P.C. by order dated
30.07.1953, with the finding that there was no apprehension of the
breach of peace any longer. The Receiver appointed by Magistrate
was replaced by civil court Receiver. At the highest, the Receiver
18
acted like a Shebait. He did not disturb the possession of the plaintiff
Deities. The possession of deities over the building in premises is
admitted by all the concerned parties. Ever since the installation of
the first plaintiff's idol since the possession of deities continued all
along , their possession places the matter of their title beyond any
doubt or dispute. Even if there had been any person claiming title to
the property adversely to the Plaintiff Deities that would have been
extinguished by their open and long adverse possession, which
created positively and affirmatively a proprietary title to the premises
in the Plaintiff Deities.
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 Janma Asthan to its pristine glory, as a first step
towards that national aspiration given to us by Mahatma Gandhi. For
achieving this, they are publicly agitating for the construction of a
grand Temple in the Nagar style. Plans and a model of the proposed
Temple have already been prepared by the same family of architects
who built the Somnath Temple. The plaintiff's suit no. 12 of 1961,
could not represent the entire Muslims community. Some defendants
no. 1 to 4 are not capable of representing the entire World of
Hindus. Waqf created by a Shia Waqif would be a Shia Waqf and could
not be a Sunni Waqf. Since according to the case of plaintiff other Suit
No.4/89, the mosque was built by Mir Baqi and he was Shia, his heirs
were Mutwallis one after the other. But the Shia Central Board of
Waqfs, U.P. did not agitate the case any further, the judgment of civil
court, Faizabad dated 30.03.1946 in Suit No.29/1945 is not binding.
19
According to the report dated 10.12.1949 of Mr. Mohammad Ibrahim,
Waqf Inspector, and an office note signed by the Secretary of the
Sunni Central Board of Waqfs, U.P. and dated 25.11.1948, Sri Javed
Husain, the nambardar of village Sahanwa, and in the line of descent,
Mir Baqi was the Mutwalli of the Waqf, although it appears, he was
not acting as such and did not submit to the jurisdiction of the said
Board of Waqfs. The persons of Shia are also being impleaded as
defendant no. 22 to 25 in the present suit.
The saint assembled in a meeting held at Ujjain during May,
1992 resolved to start the KAR SEWA for the construction of New
Temple at Sri Ram Janma Bhumi from the SHILANYAS site, on July 9,
1992 and that resolve was re-affirmed. In spite of all efforts to the
contrary, the KAR SEWAKS climbed up the three domed structure and
brought it down with their bare hands, about 5 hours after on
6.12.1992 and the debris was thereafter cleared and carried away by
the KAR SEWAKS as holy mementos, leaving the place where the
Deity of BHAGWAN SRI RAMA LALA was installed in the Central Dome
of the demolished structure flat in the form of a CHABUTRA on which
the Deity was immediately re-installed, the place was enclosed by a
brick boundary wall and a canopy was also erected for the protection
of the Deity, and PUJA was continued as of yore.
Owing full responsibility for the orders that firing shall not be
resorted to by the security forces against the KAR SEWAKS and the
inability to prevent the demolition, Sri Kalyan Singh, the then Chief
Minister of U.P. resigned from that office by the evening of 6.12.1992.
The President under Article 356 of the Constitution on the advice of
Prime Minister dissolved the Legislative Assembly before midnight
that day on 7.1.1993. The President promulgated the ACQUISITION OF
20
CERTAIN AREA AT AYODHYA ORDINANCE, NO. 8 of 1993 and
simultaneously referred to the Supreme Court, under Article 143(1) of
the Constitution for consideration and opinion, the following
question:-
Whether a Hindu temple or any Hindu religious structure
existed prior, to the construction of the Ram Janma Bhumi-Babri
Masjid (including the premises of the inner and outer courtyards of
such structure) in the area on which the structure stood?
The said Ordinance was replaced and re-enacted by
Parliaments Act No. 33 of 1993, and was published the same day in
the Gazette of India Extraordinary but was deemed to have come into
force on the 7
th
January 1993, the day on which the Ordinance was
promulgated. The plaintiff deities over the juristic persons in law
could not have been, nor do they appear to have been acquired under
the said enactment. Nor could the right of the Hindus in general and
the devotees of Sri Ram in particular to worship them be acquired or
taken away. But the right to manage their property including the
arrangements to be made for maintaining their worship on the
SHEBAITI rights which in themselves constitute heritable property
under the Hindu law, would seem to have been taken away and
entrusted for the time being to the Commissioner, Faizabad Division,
Faizabad, ex-officio under Section 7 of the Act.
The Authorized person is required by sub-Section (2) of Section
7 of the enactment to maintain status quo as it existed on the 7
th
January, 1993, in the area in which the disputed structure stood. The
validity of the said enactment was challenged in several writ petitions
in the Hon'ble Court which were withdrawn by the Supreme Court for
hearing and decision along with the hearing of the preliminary
21
objection to the maintainability of the Presidential Reference under
Article 143(1) of the Constitution. It was sought to be challenged in
the connected O.O.S. No. 3 and 4 of 1989 in this Court as well, and in
issue whether the suit has abated or services was raised thereupon.
Notice was also issued thereafter to Attorney General of India, by the
Hon'ble Court, but before the hearing of the issue could be taken up
by it, it was stayed by the Supreme Court, while ordering the
withdrawal of the writ petition against the acquisition from this Court
to itself for hearing and decision.
In Dr. M. Ismail Faruqui Vs. Union of India and others case and
the Special Reference No.1 of 1993 under Article 143(1) of the
Constitution, the Supreme Court has declared the sub-Section 3 of
Section 4 of the Act No.33 of 1993, to be unconstitutional and invalid,
but upheld the validity of the other provisions thereof subject to the
interpretation put thereon by it.
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. The map prepared by
Shiv Shankar Lal, Commissioner has been made part of the plaint as
annex Nayas Patrak has also been filed and is appended.
The defendant no.3 has filed written statement wherein it is
stated that Sri Deoki Nandan Agarwal posing himself as the Next
Friend has filed this long cumbersome suit embracing a wide range of
matters and topics, mostly irrelevant collected from alleged many and
various records and books and annals of history. The suit was initially
instituted in the Court of Civil Judge, Faizabad on 1.7.1989 and has
been transferred to this Court. It has further been stated that the
22
present suit is malicious suit and is designed to damage the title and
interest of the answering defendant. Sri Deoki Nandan Agarwal has no
right to act as Next Friend of plaintiffs no. 1 and 2 and plaintiff no.2 is
not even a juridical persons. The suit is liable to be dismissed
summarily.
It is wrong to say that the Bhagwan Shri Ram is also called Ram
Lala Virajman. Bhagwan Shri Ram is installed not at Janma Bhoomi
but in the temple known as Janma Bhoomi Temple Sthan Shri Ram
Janma Bhumi is meaningless phrase Sthan is not a juridical person.
Sri Deoki Nandan Agarwal lives at Ayodhya and is not at all interested
in Sri Ram Janma Bhumi Temple. The whole world knows that Lord
Ram was born in Ayodhya where the temple Ram Janma Bhumi
stands.
Denying the averments made in different paras of the plaint in
his additional pleas. Defendant no.3 has further stated that the relief
sought by the plaintiffs are imaginary and inconsistent. He has also
filed additional written statement/supplementary written statement
and averred that Annexure 2 attached with the plaint does not bear
any plot nos. (settlement or Nazul) nor it is bounded as to give any
definite identity of property. Temple Shri Vijay Ragho Ji Sakshi Gopal
has never been subject matter of the any of the suit O.O.S. No.
4/1989. Panches and Sadhus of Akhara are living in the surrounding
since before the human memory. The outer Sahan consisted little
temple of Bhagwan Ram Lala along with other place which are
regularly worshipped according to the customs prevailing amongst
Rama Nandi Vairagies. The temple of Ram Lala Ji and other deities
have ever been in management and charge of Nirmohi Akhara as
Sheibait till outer portion with Bhandar was attached u/s 145 Cr.P.C.
23
On 18.2.1982 a receiver is appointed there vide order of Civil Judge,
Faizabad in Reg. Suit No. 239/82. Sri Rama Nandi Nirmohi Akhara
versus K.K. Ram Varma etc. due to lootpat committed by Dharam Das
Mr. Deoki Nandan Agarwal has named himself to be witness of
Dharam Das. Suit is barred by provision of Section 34 of Specific
Relief Act for want of possession and is not maintainable as such.
The outer portion consisting of Bhagwan Ram Lala on Sri Ram
Chabutra along with other deities, Chathi Pujan Sthan and Bhandar
with eastern outer wall carrying engraved image of Varah Bhagwan
with southern and northern wall and also western portion of wall
carries the present municipal No.10/12/29 (old 506, 507 and older
647) of Ram Kot ward of Ayodhya City. The attachment made in 1949
is only in respect of main building of Garbh Grahya having three
Shikher where in the deity of Bhagwan Sri Ram Chandra Ji is
installed by Nirmohi Akhara from time beyond the human memory
and are since then is management and possession of it till the said
property attached. The suit is fully time barred. Sri Deoki Nandan
Agarwal is office bearer of VHP. The outer portion with surrounding
temples were illegally acquired by VHP. Backed BJP Government which
is under challenge in writ petition. The suit is liable to be dismissed.
Second additional written statement has also been filed in
which existence of alleged Nyas has been challenged.
Defendant No.4 has filed written statement wherein it is stated
that disputed place has always been known as Babri Masjid and the
idol in question was stealthily and surreptitiously kept inside the
mosque in the night of 22
nd
/23
rd
December, 1949 by some mischief-
mongers against whom an F.I.R. had also been lodged at the Police
Station, Ayodhya on 23
rd
December, 1949. The report and map
24
submitted by Sri Shiv Shankar Lal, Pleader and do not depict the
correct portion of the spot and the same cannot be relied upon for
identification and description of the property in suit. Denying different
paras of the plaint it has been averred that suit no.12 of 1961 was
filed in the representative capacity and the application for permission
to sue in this capacity was allowed by learned Civil Judge, Faizabad.
There is no question of Seva and Puja of the alleged deities as no
such deities exist in the building in question and the idols kept therein
could not be treated as deities. Defendant no.20 had no right or title
or locus standi to move the said application for the opening of the
gate of the mosque for closer Darshan. The order passed on 1.2.1986
of the District Judge, Faizabad was patently and manifestly illegal and
without jurisdiction against which two writ petitions are pending in
this Court.
The building in dispute is not the Janam Bhoomi of Sri Ram
Chandraji and no idols of Sri Ram Chandraji were ever installed in the
said building and as such there arises no question of any right or
claim of the defendant no.20 or of anyone else to perform Pooja and
Darshan over there. The property in suit is an old mosque known as
Babri Masjid and the same was constructed during the regime of
Emperor Babar. No idol was there prior to the incident of the night of
22
nd
/23
rd
December, 1949 in the mosque. Idols were surreptitiously
and stealthily kept in the mosque by some mischievous elements as
the plaintiff no.1 to 2 cannot at all be treated as deities. The receiver
appointed by the Court is not taking proper interest in the
maintenance of the building and in spite of the orders of the Court, no
repairs of the building have been undertaken for the last several
years. The desire of the plaintiff's of removing the mosque and of
25
constructing a temple on the site of the said mosque is wholly
uncalled for and unwarranted and mischievous and any such attempt
will be fraught with very dangerous consequences.
Plaintiffs no.1 and 2 are not juridical persons and the suit filed
on their behalf is wholly misconceived and not maintainable. The idol
was surreptitiously and stealthily kept inside the mosque in the night
of 22
nd
/23
rd
December, 1949 has neither been installed in accordance
with the tradition and rituals of Hindu Law and nor there have been
any ceremonies prescribed by Hindu Law for the installation of the
idols and as such the idols kept in the mosque have got no legal
entity and that being so there arises no question of impleadment of
the same and moreover, the plaintiff no.3 has also got no direct right
or title or concern with the property in suit and as such he is also not
entitled to institute the present suit. In any case the instant suit
having been filed after expiry of more than 39 years since after the
attachment of the property in suit the instant suit is heavily barred by
time and it is not maintainable.
In the present suit the booklets circulated at Ayodhya by Vishwa
Hindu Parisahd and other Hindu organizations and other books of
Hindu mythology describe the period of Sri Ram Chandraji as that of
Treta Yug meaning thereby that he was born more than 9 lakh years
ago. Goswami Tulsidadji had written book of Shri Ramchandraji known
as Sri Ram Charit Manas at a place known as Datun Kund situate at a
distance of about one kilometre from Ayodhya in District Faizabad and
as such had there been any birth place of Sri Ramchanddraji in
Ayodhya, Goswami Tulsidasji must have specifically mentioned about
the same in his Ram Charit Manas and as a great devotee of Sri
Ramchandraji Goswami Tulsidasji cannot be expected to have skipped
26
over or concealed or kept quiet over such an important fact regarding
the life history of Sri Ramchandraji and had there been any iota of
truth in the story of Sri Ram Janam Bhoomi temple being there at
Ayodhya at the site of the Babri Masjid prior thereto and had there
been any incident of demolition of any such temple and construction
of Babri Masjid over the same. Goswami Tulsidasji must have taken up
this matter in the Court (Darbar) of Emperor Akbar and Emperor
Akbar must have undone the alleged wrong specially so when the
Court of Akbar was full of Advisors, councillors and ministers from
Hindu community and his own Queen was also Jodha Bai. The
description of Ayodhya given in the Balmiki Ramayan does not tally
with the present Ayodhya. Mahant Raghubar Das in 1885 had filed a
suit against the Secretary of State for India in Council and Mohd.
Asgar Mutwalli of the said mosque in the Court of Sub-Judge, Faizabad
in which a site plan was also annexed alongwith the plaint and in the
said site plan the mosque in question was specifically mentioned in
the western side of the Chabutra in respect whereof the said suit was
filed for permission to erect temple over the said Chabutra.. The said
Mahant could not succeed even in that suit which was dismissed on
24.12.1885 by the Sub- Judge, Faizabad, and the appeal filed against
the said judgment and decree dated 24.12.1885 was also dismissed
by the District Judge, Faizabad and the second appeal filed against
the same had also been dismissed by the Judicial Commissioner of
Avadh. The aforesaid suit was filed by Mahant Raghubar Das on
behalf of other Mahants and Hindus of Ayodhya and Faizabad. As
such the plaintiffs cannot claim any portion of the Babri Masjid to
have been defied or having become a juridical personality by the
name of Asthan Ram Janam Bhoomi and specially so when neither
27
there has been any installation of deity and nor any personification of
the same in accordance with the tenets of Hindu religion or law. It is
further submitted that the plaintiff are even estopped from claiming
the mosque in question as the Janam Bhoomi of Sri Ram Chandraji as
the plaintiffs' predecessors and specially Mahant Raghubar Das had
confined his claim to the Chabutra (platform) of 17' x 21' outside the
said mosque is being Janam Asthan of Ram Chandraji and also
because there already exists another temple known as Janam Asthan
temple situate at a distance of less than 100 yards only from Babri
Masjid and on its northern side.
An F.I.R. was lodged about the incident of 22
nd
/23
rd
December,
1949 at the Police Station Ayodhya in the morning of 23.12.1949 by a
Hindu Officer of the Police Station himself who had mentioned in the
said F.I.R. that some mischievous element had kept the said idol in the
preceding night in a stealthy and surreptitious manner by sheer use
of force and the said building had been attached on 29.12.1949 and
Receiver for the care and custody of the said building had also been
appointed who had drawn up a scheme of Management and the same
was submitted on 5.1.1950 by the Receiver. Sita Rasoi situate outside
the premises of the said mosque. It is not correct to say that mosque
was constructed after demolishing a temple. It is also not correct to
say that the material used in the construction of the said mosque was
almost all of it taken from any temple, and it is also incorrect to say
that the pillars of the said mosque were wrought out of Kasauti or
touchstone with figures of Hindu Gods and Goddesses carved on
them. The fact is that such pillars are available at some other place
also. Minarets or domes is not at all required for any mosque.An
existence of minarets or domes are not at all required for any mosque
28
and so also there is no necessity of any place for storage of water for
VAZOO for any mosque although in the close vicinity of Babri Masjid a
well is very much there for taking out water for the purpose of
VAZOO. It is also incorrect to say that any life was lost in any battle
fought in respect of Babri Masjid and no battle in respect of Babri
Masjid had taken place till 1885.
The expedition of Maulvi Ameer Ali had no concern or
connection with the Babri Masjid. Hindus and Muslims both were
never in joint possession of the Babri Masjid, nor they worshipped
jointly in the disputed structure. Emperor Babar was a Sunni Muslim
and the vacant land on which the Babri Masjid was built lay in his
State territory and did not belong to anyone and it could very well be
used by his officers for the purposes of the mosque and specially so
when the Emperor Babar himself consented and gave approval for
the construction of the said mosque. Mir Baqi did not destroy any
temple at any point of time. Demolition of temple by Mir Baqi has not
been mentioned in any book of Mughal history or in any authentic
book of history as such it is absolutely false and concocted to suggest
that the mosque in question was constructed at the site of any temple
and Mosque can not be built at a place which is surrounded by
temples, where the sound of music and Konch shell, Ghanta Gharyal
disturbs the peace and quiet of the place.
It is reiterated that the mosque in question has been used for
offering regular five times prayers upto 22
nd
December, 1949 and
even Friday prayers have been offered in the same till 16
th
December,
1949. The possession of the Muslims has remained uninterrupted and
continuous in the mosque in question since its construction and up to
22.12.1949 any right of any person has ceased to exist. In view of
29
these facts five times prayers used to be offered in the said mosque
upto 22.12.1949 and Friday prayers were also offered upto
16.12.1949 and 23.12.1949 when the Muslims led by the Imam of the
said mosque had approached the authorities of the district to offer
Friday prayer in the said mosque. They were persuaded to offer Friday
prayer on that date in some other mosque with the specific assurance
that they will be allowed to offer Friday prayers in the mosque in
question on the next Friday falling on 30.12.1949. But before that the
mosque in question had been attached by the Magistrate under
Section 145 Cr.P.C. and since then the attachment of the said mosque
is continuing some Bairagees had damaged a portion of the mosque
and as such the District Magistrate of Faizabad had got the said
damaged portion of the mosque repaired through a Muslim contractor
thereafter. There has always been Mutwalli or Moazin or Imam or
Khatib or Khadim of the said Mosque. His name finds mention even in
the Government Gazette of 1944.
The fact is that Muslims reside not only behind the mosque but
also in the localities situated in the southern and eastern site of the
mosque. It has further been mentioned in the written statement filed
by Sunni Central Board of Waqf of U.P. that there is no justification for
the present campaign being carried on for starting construction of
Ram Janam Bhumi Temple at the site of the Babri Masjid w.e.f.
9.11.89. There is no question of construction of any such temple at
the site of the mosque and Muslims will never permit any such
attempt being successful. The judgment of Civil Judge, Faizabad in
Suit No. 27 of 45 is binding upon the parties and controversy about
the Shia or Sunni nature of the waqf in question has been set at rest
by the aforesaid judgment. There is no bar for appointment of Shia
30
Mutwalli of a Sunni Waqf; so also a Sunni Muslim can very well be
appointed as mutwalli of a Shia Waqf.
It is incorrect to say that any responsible Muslim has ever made
a suggestion for the removal of the structure of the mosque to any
other place as it is quite foreign to the Muslim law and there is no
possibility of any such course being adopted by the Muslims in
respect of the mosque in question. The concept of the mosque is that
the entire area below as well as above the portion of the mosque
remains dedicated to God Almighty and as such it is not the
construction or structure of a mosque alone which is important but
more important is the land on which the mosque stands constructed
because the land also stands dedicated to God Almighty and the
same cannot be removed. Suit is barred by time the property in suit
has also not been properly described no valid notice under section 80
in C.P.C. has been given to defendants no. 7 to 10. Therefore, this
suit could not be filed in absence of the notice. The subject matter of
the instant suit is a waqf property and stands registered as a waqf in
the Register of Waqf maintained by the Sunni Waqf Board under
Section 30 of the Waqf Act and a Gazette notification in respect
thereto has also been issued by the State Government in 1944 and
the same stands recorded as a mosque even in the revenue record
and other Government record and the same is even accepted as a
mosque by the State Government and its officers in the written
statement filed in Regular Suit No. 2 of 1950 as well in Regular Suit
No.25 of 1950. The suit is barred for want of notice under Section 65
of the U.P. Muslim Waqf Act, 1960 and the reports of the
Archaeological experts have been to the effect that there appear to
be no symptoms of human habitation in the present Ayodhya of more
31
than 700 B.C. and also the suit is barred by Section 34 of the Specific
Relief Act and is also bad for mis-joinder and non-joinder of the
parties.
Defendants no.4 and 5 have also filed additional written
statement wherein all the facts mentioned in amended para 35 H I J K
have been denied.
Defendant no.6 has adopted the written statement filed by
defendant no.5. Defendant no.11 has filed written statement where it
is averred that All India Hindu Mahasabha be also included in the trust
created for protecting, renovating, reconstructing and developing the
temple premises, in short, of managing all their estates and all their
affairs. Defendant no.17 Sri Ramesh Chandra Tripathi has supported
the plaint allegations.
Defendant no.23 Jawwad Husain has denied all the plaint
allegations in his additional pleas. He has submitted that he has
wrongly been impleaded as a party, plaintiff no. 1 and 2 has no right
to sue. He has supported the plaint allegations and averred that
there is Janma Sthan in the north side of disputed property in the
north of the road.
Defendant no.24 has denied the plaint allegations in para-10.
He has stated that Muslims of India has the highest regard for Lord
Rama. These sentiments of the Muslims are best reflected in the
poem entitled Rama composed by the greatest Muslim thinker of
India of the present century Allama Dr. Sir Muhammad Iqbal, who had
summed up in just one verse of the long poem what Muslims of India
think of Shri Ram Chandraji:
Hae Ram ke wajood pa Hindostan ko naaz
Ahl-e Nazar Samajht-e hain usko Imam-e- Hind.
32
Meaning- India is proud of the existence of Ram. The intelligent-
sia consider him as the leader of India.
Rest of paras of written statement he has supported the written
statement filed by defendants no. 4 and 5. An important para 26 has
been pertinent to be mentioned of this written statement where in it
is averred that para 34 and 35 of the plaint, the answering defendant
being a representative of the Shia Muslims of India is deadly against
any form of sacrilegious actions. He is of the firm view that no place
of worship of any religion should be destroyed and no place of
worship should be constructed on the ruins of the destroyed one. The
answering defendant firmly believes that the Babri Masjid was
certainly not built after destroying the Vikramaditya Mandir or any
temple. Yet, at the same time if it is unequivocally proved in this
Hon'ble Court in the light of historical archaeological and expert
scientific evidence that the Babri Masjid was really built after
demolishing any Mandir on the Mandir land, only then this defendant
will withdraw his opposition.
Defendant no. 25 has also filed written statement denying the
plaint allegations in his additional pleas of General Secretary of India
Shia Conference has averred that the premises in question has always
been mosque and it is a mosque. In the night of 22
nd
/23
rd
December,
1949, certain persons forcibly entered into the mosque and put an
idol in the same, against them an F.I.R. was lodged in the Police
Station, Ayodhya in the morning of 23
rd
of December, 1949. A case
was registered. A Receiver was appointed. There is no Hindu deity as
juristic person in relation to the premises in question nor there is any
Hindu deity with the name and style of Asthan Sri Ram Janam Bhumi
Ayodhya. Sri Deoki Nandan Agarwal cannot be a next friend to the
33
deity. The suit is not maintainable and is liable to be dismissed.
ISSUES:-
Following Issues arose for decision:-
(1) Whether the plaintiffs 1 an 2 are juridical persons?
(2) Whether the suit in the name of deities described in the plaint
as plaintiffs 1 and 2 is not maintainable through plaintiff no. 3
as next friend?
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 on 30.4.92 in their
statement under order 10 Rule 2 C.P.C. ?
3(b) Whether the same idol was reinstalled at the same place on a
chabutra under the canopy?
3(c) Whether the idols were placed at the disputed site on or after
6.12.92 in violation of the courts order dated 14.8.1989,
7.11.1989 and 15.11. 91 ?
3(d) If the aforesaid issue is answered in the affirmative, whether
the idols so placed still acquire the status of a deity?
(4) Whether the idols in question had been in existence under the
Shikhar prior to 6.12.92 from time immemorial as alleged in
paragraph-44 of the additional written statement of defendant
no. 3 ?
(5) Is the property in question properly identified and described in
the plaint ?
(6) Is the plaintiff No. 3 not entitled to represent the plaintiffs 1 and
2 as their next friend and is the suit not competent on this
account ?
34
(7) Whether the defendant no. 3, alone is entitled to represent
plaintiffs 1 and 2, and is the suit not competent on that account
as alleged in paragraph 49 of the additional written statement
of defendant no. 3 ?
(8) Is the defendant Nirmohi Akhara the Shebait of Bhagwan Sri
Rama installed in the disputed structure ?
(9) Was the disputed structure a mosque known as Babri Masjid ?
(10) Whether the disputed structure could be treated to be a
mosque on the allegations, contained in paragraph-24 of the
plaint ?
(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 is as a mosque ?
(12) If the structure in question is held to be mosque, can the same
be shifted as pleaded in paragraphs 34 and 35 of the plaint ?
Deleted vide court order
dated 23.2.96.
(13) Whether the suit is barred by limitation ?
(14) Whether the disputed structure claimed to be Babri Masjid was
erected after demolishing Janma-Sthan temple at its site.
15. Whether the disputed structure claimed to be Babri Masjid was
always used by the Muslims only, regularly for offering Namaz
ever since its alleged construction in 1528 A.D. to 22
nd

December, 1949, as alleged by the defendants 4 and 5 ?
16. Whether the title of plaintiffs 1 & 2, if any, was extinguished as
alleged in paragraph 25 of the written statement of defendant
no. 4 ? If yes, have plaintiffs 1 & 2 reacquired title by adverse
possession as alleged in paragraph 29 of the plaint ?
35
17. Whether on any part of the land surrounding the structure in
dispute there are graves and is any part of that land a Muslim
Waqf for a graveyard ?
Deleted vide this Hon'ble Court
order dated 23.2.96.
18. Whether the suit is barred by Section 34 of the the Specific
Relief Act as alleged in paragraph 42 of the additional written
statement of defendant no. 3 and also as alleged in paragraph
47 of the written statement of defendant no. 4 and paragraph
62 of the written statement of defendant no. 5 ?
19. Whether the suit is bad for non-joinder of necessary parties, as
pleaded in paragraph 43 of the additional written statement of
defendant no. 3 ?
20. Whether the alleged Trust, creating the Nyas defendant no. 21,
is void on the facts and grounds, stated in paragraph 47 of the
written statement of defendant no. 3 ?
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 no. 4 and in paragraph 1 of the written
statement of defendant no. 5 ?
22. Whether the premises in question or any part thereof is by
tradition, belief and faith the birth place of Lord Rama, as
alleged in paragraphs 19 and 20 of the plaint ? If so, its effect ?
23. Whether the judgment in suit No. 61/280 of 1885 filed by
Mahant Raghuber 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 ?
24. Whether worship has been done of the alleged plaintiff deity on
the premises in suit since time immemorial as alleged in
paragraph 25 of the plaint?
36
25. Whether the judgment and decree dated 30
th
March 1946
passed in suit no. 29 of 1945 is not binding upon the plaintiffs
as alleged by the plaintiffs ?
26. Whether the suit is bad for want of notice under Section 80
C.P.C. as alleged by the defendants 4 and 5?
27. Whether the plea of suit being bad for want of notice under
Section 80 C.P.C. can be raised by defendants 4 and 5 ?
28. Whether the suit is bad for want of notice under Section 65 of
the U.P. Muslim Waqfs Act, 1960 as alleged by defendants 4 and
5 ? If so, its effect?
29. Whether the plaintiffs are precluded from bringing the present
suit on account of dismissal of suit no. 57 of 1978 (Bhagwan Sri
Ram Lala Vs. state) of the Court of Munsif Sadar, Faizabad?
30. To what relief, if any, are plaintiffs or any of them entitled?
Annexure-I
Pages 215-316
Statement under Order X Rule 2 C.P.C. in O.O.S. No. 5 of 1989
At the instance of Sri R.L. Varma, Sri Deoki Nandan Agarwal
makes the following clarification under Order X Rule 2 C.P.C.
------------
In the early hours of December, 23, 1949 the idol of Bhagwan
Sri Ram Lala, which was already on Ram Chabutra, was transferred to
the place where he presently sits, that is, under the central dome of
the disputed building. I was not personally present at that time at the
place. This information was conveyed to me by Paramhans Ram
Chandra Das of Digamber Akhara. This transfer of the idol was done
by Paramhans Ram Chandra Das and Baba Abhi Ram Das and
certain other persons whose name I do not remember at the moment.
37
I will have to look into the record to give their names.
The idol is Chal Vigraha (moveable idol).
Paramhans Ram Chandra Das had informed me that all the due
ceremonies were performed when the idol was transferred.
Presently, the property in suit is bounded on three sides by a
wall constructed by the State Government recently and on the north
by public road.
The entire area enclosed by the aforesaid wall belongs to the
deity.
30.04.1992 Sd/-illegible
MHS/- 30.4.92
FINDINGS
ISSUES NO. 9, 10, 14 & 22
9. Was the disputed structure a mosque known as Babri
Masjid ?
10. Whether the disputed structure could be treated to be a
mosque on the allegations, contained in paragraph-24 of
the plaint ?
14. Whether the disputed structure claimed to be Babri
Masjid was erected after demolishing Janma-Sthan
temple at its site?
22. Whether the premises in question or any part thereof is
by tradition, belief and faith the birth place of Lord
Rama as alleged in paragraphs 19 and 20 of the plaint ?
If so, its effect ?
FINDINGS
These issues are interrelated and can be taken up together. I
38
have already recorded finding in leading case O.O.S. No.4 of 1989.
Copy of the judgment be placed on record. In view of the finding on
issues no. 1, 1(a), 1(b), 1-B(b), 11, 19(d), 19(e) and 19(f) no separate
finding is required as the issues are identical issues in this case.
These issues no. 9, 10, 14 and 22 are decided accordingly.
ISSUES NO.15, 16 & 24
15. Whether the disputed structure claimed to be Babri
Masjid was always used by the Muslims only, regularly
for offering Namaz ever since its alleged construction in
1528 A.D. To 22
nd
December 1949 as alleged by the
defendants 4 and 5 ?
16. Whether the title of plaintiffs 1 & 2, if any, was
extinguished as alleged in paragraph 25 of the written
statement of defendant no. 4 ? If yes, have plaintiffs 1 &
2 reacquired title by adverse possession as alleged in
paragraph 29 of the plaint ?
24. Whether worship has been done of the alleged plaintiff
deity on the premises in suit since time immemorial as
alleged in paragraph 25 of the plaint?
FINDINGS
These issues are interrelated and can be taken up together. I
have already recorded finding in leading case in O.O.S. No.4 of 1989.
Copy of the judgment be placed on record. In view of the finding on
issue no.1B-(c), 2, 4, 12, 13, 14, 15, 19(a), 19(b), 19(c), 27 and 28 no
separate finding is required as the issues are identical issues in this
case. Issues no. 15, 16 & 24 are decided accordingly.
ISSUES NO.23
Whether the judgment in suit No. 61/280 of 1885 filed by
39
Mahant Raghuber 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 ?
FINDINGS
In view of the finding on issue no.8 in O.O.S. No. 4 of 1989, the
leading case, the issue is decided against the defendants and in
favour of the plaintiffs.
ISSUES NO. 1, 2 & 6
1. Whether the plaintiffs 1 an 2 are juridical persons?
2. Whether the suit in the name of deities described in the
plaint as plaintiffs 1 and 2 is not maintainable through
plaintiff no. 3 as next friend?
6. Is the plaintiff No. 3 not entitled to represent the
plaintiffs 1 and 2 as their next friend and is the suit not
competent on this account ?
FINDINGS
Since Issue Nos. 1,2 and 6 are inter connected, they can
conveniently be disposed of at one place.
The instant suit has been filed by Bhagwan Sri Rama Virajman
at Sri Ram Janma Bhumi, Ayodhya also called Sri Rama Lala Virajman
and the Asthan Sri Rama Janma bhumi, Ayodhya through next friend
with following reliefs ,
(A) 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,
(B) A perpetual injunction against the Defendants prohibiting them
40
from interfering with, or raising any objection to, or placing any
obstruction in the construction of the new Temple building at Sri Ram
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.
Costs of the suit against such of the defendants as object to the
grant of relief to the plaintiffs.
(D) Any other relief or reliefs to which the plaintiffs may be found
entitled.
On behalf of the Plaintiff, it is submitted that Bhagwan Sri Rama
Virajman at Sri Ram Janma Bhumi, Ayodha, also called Sri Ram Lala
Virajman, Plaintiff no. 1 and the Asthan Sri Rama Janma Bhumi,
Ayodhya with other idols and places of worship situate Plaintiff no.2
are juridical persons with Bhagwan Sri Rama as the presiding Deity
of the place. Plaintiff No. 3 is a Vaishnva Hindu and seeks to represent
the Deity and the Asthan as a next friend.
The place itself,or the ASTHAN SRI RAMA JANMA BHUMI has
been an object of worship as a deity by the devotees of BHAGWAN
SRI RAMA as it personifies the spirit of divine worshipped in the form
of SRI RAM LALA or lord RAMA, the child. The Asthan was thus
Deified. According to the faith of devotees BHAGWAN SRI RAMA LALA
or LORD RAMA, the child has spiritual uplift . It is further averred that
at Ayodhya , the very Asthan Sri Ram Janmabhumi is worshipped as
a deity. Thus, the place is deified . Thus, it is juridical person. Thus,
Asthan Sri Ram Janmabhumi is indestructible and immoveable
deity, who has continued to exist throughout ages .
On behalf of the defendants it is averred that the plaintiffs no. 1
and 2 are not juridical persons.
41
Persons are classified as a natural and juristic person. A natural
person is a being to whom the law attributes personality in
accordance with reality and truth. Legal persons are beings, real or
imaginary, to whom the law attributes personality by way of fiction.
Legal personality is an artificial creation of the law.
Sri K.N. Bhat, learned Senior Advocate has drawn
attention of this Court on following passages of Hindu Law of
Religious and Charitable Trusts 5
th
Edition' by Mukherjea. The relevant
extracts are quoted below;
.* A Hindu idol, the Judicial Committee observed in one of its recent
pronouncements, is according to long established authority founded
upon the religious customs of the Hindus and the recognition there of
by Courts of Law, a juristic entity. It has a juridical status with the
power of suing and being sued. You should remember, however,
that the juridical 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 Pratistha
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. ( p.38.)
* From the spiritual standpoint the idol might be to the devotee the
very embodiment of Supreme God but that is a matter beyond the
reach of law altogether. (p.39.)
* The early Vedic hymns make no allusion to idol worship, and Max
Muller held that idolatry did not exist among them. The religion of the
Vedas, he declared, knows no idols. The Jabala Upanishad says,
Images are meant only as aids to meditation for the ignorant.
(p.149)
42
* 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. (p.153.)
* The idol, deity or religious object, observed West and Buhler in
their Digest on Hindu Law, is looked upon as a kind of human entity.
It is a sacred entity and ideal personality possessing proprietary
rights. The Judicial Committee has pointed out on more occasions
than one that it is only an ideal sense that property can be said to
belong to an idol and the possession and management of it must, in
the nature of things, be entrusted to some person as Shebait or
manager. The legal principle has thus been summed up in one of the
pronouncements of the Judicial Committee:
A Hindu idol is, according to long-established authority,
founded upon the religious customs of the Hindus, and the
recognition thereof by courts of law, a juristic entity. It has a juridical
status, with the power of suing and being sued. Its interests are
attended to by the person who has the deity in his charge and who in
law is its manager, with all the powers which would, in such
circumstances, on analogy, be given to the manager of the estate of
an infant heir. It is unnecessary to quote the authorities; for this
doctrine, thus simply stated, is firmly established.( pp.158)
* Existence of idol is (not) necessary for temple.- While usually
an idol is instituted in a temple, it does not appear to be an essential
condition of a temple as such. In an Andhra case, it was held that to
constitute a temple, it is enough if it is a place of public religious
worship and if the people believe in its religious efficacy, irrespective
of the fact whether there is an idol or a structure or other
paraphernalia. It is enough if the devotees or the pilgrims feel
43
that there is one superhuman power which they should
worship and invoke its blessings. pp.158-159.
* Moreover, - and this was pointed out by Chatterjee, J., who was a
member of the Full Bench the conception of Hindu jurists was
not that the image of clay or stone constituted the juristic
person. The Smriti writers have laid down that if an image is broken
or lost another may be substituted in its place; when so substituted it
is not a new personality but the same deity, and properties vested in
the lost or mutilated thakur become vested in the substituted thakur.
Thus, a dedication to an idol is really a dedication to the deity who
is ever-present and ever-existent, the idol being no more than
the visible image through which the deity is supposed specially to
manifest itself by reason of the ceremony of consecreation. The
decision in Bhupati Smrititirtha v. Ramlal has been followed by other
High Courts in India, and it has been held by the Allahabad High Court
in Mohor Singh v. Het Singh that a bequest to complete the building of
a temple which was commenced by the testator and to install and
maintain an idol therein was a valid bequest under the Hindu law.
( pp.162-163)
He has further invited the attention of this Court on paras 11,12
and 13 of AIR 2000 Supreme Court 1421 Shiromani Gurdhwara
Prabhandak committee Amritsar Vs. Shri Som Nath Dass and
others . They are as under:
11. The very words "Juristic Person" connote recognition of an entity
to be in law a person which otherwise it is not. In other words, it is not
an individual natural person but an artificially created person which is
to be recognised to be in law as such. When a person is ordinarily
understood to be a natural person, it only means a human person.
44
Essentially, every human person is a person. If we trace the history of
a "Person" in the various countries we find surprisingly it has
projected differently at different times. In some countries even human
beings were not treated to be as persons in law. Under the Roman
Law a "Slave" was not a person. He had no right to a family. He was
treated like an animal or chattel. In French Colonies also, before
slavery was abolished, the slaves were not treated to be legal
persons. They were later given recognition as legal persons only
through a statute. Similarly, in the U.S. the African-Americans had no
legal rights though they were not treated as chattel.
12. In Roscoe Pound's Jurisprudence Part IV, 1959 Ed. at pages 192-
193, it is stated as follows:
In civilized 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 Antonymous 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 the 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.
13. With the development of society, 'where an individual's
interaction fell short, to upsurge social development, co-operation of
a larger circle of individuals was necessitated. Thus, institutions like
45
corporations and companies were created, to help the society in
achieving the desired result. The very Constitution of 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 recognized in law
to be a legal unit.
Corpus Juris Secundum, Vol. LXV, page 40 says:
Natural person. A natural person is a human being; a man,
woman, or child, as opposed to a corporation, which has a
certain personality impressed on it by law and is called an
artificial person. In the C.J.S. definition 'Person' it is stated
that the word "person," in its primary sense, means natural
person, but that the generally accepted meaning of the
word as used in law includes natural persons and artificial,
conventional, or juristic persons.
Corpus Juris Secundum, Vol. VI, page 778 says:
Artificial persons. Such as are created and devised by
human laws for the purposes of society and government,
which are called corporations or bodies politic.
Salmond on Jurisprudence, 12th Edn., 305 says:
A legal person is any subject-matter other than a human
being to which the law attributes personality. This extension,
for good and sufficient reasons, of the conception of
personality beyond the class of human being is one of the
most noteworthy feats of the legal imagination.... Legal
persons, being the arbitrary creations of the law, may be of
as many kinds as the law pleases. Those which are actually
46
recognised by our own system, however, are of
comparatively few types. Corporations are undoubtedly
legal persons, and the better view is that registered trade
unions and friendly societies are also legal persons though
not verbally regarded as corporations. ... If, however, we
take account of other systems than our own, we find that
the conception of legal personality is not so limited in its
application, and that there are several distinct varieties, of
which three may be selected for special mention...
1. The first class of legal persons consists of
corporations, as already defined, namely, those
which are constituted by the personification of
groups or series of individuals. The individuals who
thus form the corpus of the legal person are
termed its members....1
2. The second class is that in which the corpus, or
object selected for personification, is not a group
or series of persons, but an institution. The law
may, if it pleases, regard a church or a hospital, or
a university, or a library, as a person. That is to
say, it may attribute personality, not to any group
of persons connected with the institution, but to
the institution itself....
3. The third kind of legal person is that in which
the corpus is some fund or estate devoted to
special uses - a charitable fund, for example or a
trust estate...
47
Jurisprudence by Paton, 3rd Edn. page 349 and 350 says:
It has already been asserted that legal personality is an
artificial creation of the law. Legal persons are all entities
capable of being right-and-duty-bearing units - all entities
recognised by the law as capable of being parties to legal
relationship. Salmond said: 'So far as legal theory is
concerned, a person is any being whom the law regards as
capable of rights and duties...
...Legal personality may be granted to entities other than
individual human beings, e.g. a group of human beings, a
fund, an idol. Twenty men may form a corporation which
may sue and be sued in the corporate name. An idol may be
regarded as a legal persona in itself, or a particular fund
may be incorporated. It is clear that neither the idol nor the
fund can carry out the activities incidental to litigation or
other activities incidental to the carrying on of legal
relationships, e.g., the signing of a contract: and, of
necessity, the law recognises certain human agents as
representatives of the idol or of the fund. The acts of such
agents, however (within limits set by the law and when they
are acting as such), are imputed to the legal persona of the
idol and are not the juristic acts of the human agents
themselves. This is no mere academic distinction, for it is
the legal persona of the idol that is bound to the legal
relationships created, not that of the agent. Legal
personality then refers to the particular device by which the
law creates or recognizes units to which it ascribes certain
powers and capacities." Analytical and Historical
48
Jurisprudence, 3rd Edn. At page 357 describes "person";
We may, therefore, define a person for the
purpose of jurisprudence as any entity (not
necessarily a human being) to which rights or
duties may be attributed.
14. Thus, it is well settled and confirmed by the authorities on
jurisprudence and Courts of various countries that for a bigger
thrust of socio-political-scientific development evolution of a
fictional personality to be a juristic person became inevitable.
This may be any entity, living inanimate, objects or things. It
may be a religious institution or any such useful unit which may
impel the Courts to recognise it. This recognition is for
subserving the needs and faith of the society. A juristic person,
like any other natural person is in law also conferred with rights
and obligations and is dealt with in accordance with law. In
other words, the entity acts like a natural person but only
through a designated person, whose acts are processed within
the ambit of law. When an idol, was recognised as a juristic
person, it was known it could not act by itself. As in the case
of minor a guardian is appointed, so in the case of idol,
a Shebait or manager is appointed to act on its behalf.
In that sense, relation between an idol and Shebait is
akin to that of a minor and a guardian. As a minor
cannot express himself, so the idol, but like a guardian,
the Shebait and manager have limitations under which
they have to act. Similarly, where there is any endowment for
charitable purpose it can create institutions like a church
hospital, gurudwara etc. The entrustment of an endowed fund
49
for a purpose can only be used by the person so entrusted for
that purpose in as much as he receives it for that purpose alone
in trust. When the donor endows for an Idol or for a mosque or
for any institution, it necessitates the creation of a juristic
person. The law also circumscribes the rights of any person
receiving such entrustment to use it only for the purpose of
such a juristic person. The endowment may be given for various
purposes, may be for a church, idol, gurdwara or such other
things that the human faculty may conceive of, out of faith and
conscience but it gains the status of juristic person when it is
recognised by the society as such.
Shri Ravi Shanker Prasad Senior Advocate has argued that the
concept of deity is distinguishing feature of Hindu faith that the
concept of deity in Hindu faith has been considered in this
outstanding book. The concept of deity is a distinguishing feature of
the Hindu faith. The deity is the image of Supreme Being. The temple
is the home of the deity. It is enough that Supreme Super Human
Being Power i.e. an idol or image of the Supreme Being installed in
the temple. The worship of such an image of the Supreme Being is
acceptable in Hindu law. Hindus have also the believe that idol
represent dignity. In this context, para 1.33 pages 26 and 27 of the
Hindu Law of Religious and Charitable Trust by B.K. Mukharjee, 1952
Edition is reproduced as under:-
4. The traditional and classical legal literature relating to
Hindus has also duly sanctified such belief and faith which
has been exalted to a juristic status requiring legal
recognition. In this connection, the Hindu Law of
50
Religious and Charitable Trusts by B.K. Mukherjea
lays down some of the relevant concepts relating to deity
and the temple along with concerned page number which are
consistently being recognized as judicial authorities, not only
in India but also abroad. The concept mentioned therein
along with concerned page numbers are being quoted below:
Page 26-27 Para 1.33: Idols representing same
divinity One thing you should bear in mind in connection
with image worship viz. That the different images do not
represent separate divinities; they are really symbols of the
one Supreme Being, and in whichever name and form the
deity might be invoked, he is to the devotee the Supreme
God to whom all the functions of creation, preservation and
destruction are attributed. In worshipping the image
therefore the Hindu purports to worship the Supreme Deity
and none else. The rationale of image worship is thus
given in a verse which is quoted by Raghunandan:
Chinmayasyaadwitiiyasya Naskalashariirina
Saadhakaanaam Hinaathayi Brahmanii Roopakalpanaa.
It is for the benefit of the worshippers that there is
conception of images of Supreme Being which is
bodiless, has no attribute, which consists of pure
spirit and has got no second.
Page 38-Para 1.50. The idol as a symbol and
embodiment of the spiritual purpose is the juristic
person in whom the dedicated property vests:- As you
shall see later on the decision of the Courts of India as well
as of the Privy Council have held uniformly that the Hindu
51
idol is a juristic person in whom the dedicated property vests.
A Hindu idol, the Judicial Committee observed in one of its
recent pronouncements, is according to long established
authority founded upon the religious customs of the Hindus
and the recognition thereof by Courts of Law, a juristic entity.
It has a juridical status with the power of suing and being
sued. You should remember, however, that the juridical
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 by the Pran Pratistha
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 idol as representing
and embodying the spiritual purpose of the donor is the
juristic person recognized by law and in this juristic person
the dedicated property vests.
Page 38-39-Para 1.51. Deity owner in a secondary
sense.-The discussions of several Hindu sages and
commentators point to the conclusion that in case of
dedicated property the deity is to be regarded as owner not
in the primary but in the secondary sense. All the relevant
texts on this point have been referred to by Sir Asutosh
Mookerjee in his judgment in Bhupati v Ramlal and I will
reproduce such portions of them as are necessary for my
present purpose.
Sulapani, a reputed Brahminical Jurist, in his discourse on
Sraddha thus expresses his views regarding the proper
significance of gift to God:- in 'Donation' having for its
52
dative case, the Gods like the Sun, etc., the term 'donation'
has a secondary sense. The object of this figurative use
being extension to it of the inseparable accompaniment of
that (gift in its primary sense), viz., the offer of the sacrifical
fee etc. it has already been remarked in the chapter on the
Bratis that such usage as Devagram, Hastigram, etc., are
secondary. Sree Krishna in commenting on this passage
thus explains the meaning of the expression Devgram:
Moreover, the expression cannot be used here in its primary
sense. The relation of one's ownership being excluded, the
possessive case affix (in Devas in the term Devagram)
figuratively means abandonment for them (the Gods).
Therefore, the expression is used in the sense of a village
which is the object of abandonment intended for the Gods.
This is the purport. According to Savar Swami, the well-
known commentator on Purba Mimansa, Devagram and
Devakhetra are figurative expressions. What one is able to
employ according to one's desire is one's property. The Gods
however do not employ a village or land according to their
use.
Page 39-Para 1.52. These discussions are not free from
obscurity but the following conclusions I think can be safely
drawn from them:-(1) According to these sages the deity or
idol is the owner of the dedicated property but in a
secondary sense. The ownership in its primary sense
connotes the capacity to enjoy and deal with the property at
one's pleasure. A deity cannot hold or enjoy property like a
man, hence the deity is not the owner in its primary sense.
53
(2) Ownership is however attributed to the deity in a
secondary or ideal sense. This is a fiction (Upchaar) but not a
mere figure of speech, it is a legal fact; otherwise the deity
could not be described as owner even in the secondary
sense. (3) The fictitious ownership which is imputed to the
deity is determined by the expressed intentions of the
founder; the debutter property cannot be applied or used for
any purpose other than that indicated by the founder. The
deity as owner therefore represents nothing else but the
intentions of the founder. Although the discussions of the
Hindu Jurists are somewhat cryptic in their nature, it is clear
that they did appreciate the distinction between the spiritual
and legal aspects of an idol. From the spiritual standpoint
the idol might be to the devotee the very embodiment of
Supreme God but that is a matter beyond the reach of law
altogether. Neither God nor any supernatural being could be
a person in law. 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 and
the correct view is that in the capacity alone the dedicated
property vests in it.
Thus, the Hindu concept of deity is worship of his image. It is an
admitted case that deities were installed and are being worshiped in
the structure. The time of installation has been seen in another issue
but the factum is the same that the deities were available inside the
structure and the plaintiff has sought the relief of the removal without
arraying them as a party. It is not a matter of dispute that deity is a
juristic person. The plaintiff is not in a position to say whether Pran
54
Pratishtha was performed or not. The Hindu concept is that deities
had to be worshipped. Thus the idol is a juristic person but they did
not recognize a temple to be so. It is also a settled proposition of law
that no decree can be passed against the juristic person without
arraying them as a party. Thus, in view of the decision of the Hon'ble
Apex Court in 2000 (4) SSC 146, Shiromani Gurudwara
Prabandhak Committee Vs. Somnath Das, the deities installed
and admitted by the plaintiff are the juristic persons. In view of AIR
1957 SC Page 133, Deoki Nandan Aggarwal vs. Murlidhar
endowment property in favour of an idol is possible as they are juristic
persons. On the contrary, that the defendants Hindus' claim that
deities were Pran Pratishthit and according to their faith they are
being properly worshipped and Muslims cannot claim that the
religious performance of Hindus were defective and accordingly they
are not juristic persons. In view of AIR 1966 Patna 235, Ram Ratan
Lal Vs. Kashinath Tewari and others that the actual Sankalp and
Samarpan is not necessary. It is always possible that by worship also,
the deities acquire divinity. it is admitted between the parties that the
prayers were offered to the deities at least from December, 1949 and
the suit was filed after a long time even then the plaintiff cannot, at
this stage, suggest that there was no Pran Pratishtha in the temple of
the deities. It is also a matter of common knowledge that deities are
installed with Pran Pratishta. There is no difference between idol and
deities. According to Hindu faith the worship is going on for the last
61 years. Accordingly at no stretch of imagination, at this stage, it can
be said that without any Pran Pratishtha or Pooja the deities were
installed.
Thus, in view of AIR 1925 Privy Council 139 Pramatha Nath
55
Mullick Vs. Pradyumna Kumar Mullick even idol is a juristic
person and it can sue and be sued. It is not a property which can be
shifted to other place. Thus in this case once the parties accept that
idols were placed and the worship was going on in that event there is
no difference between deities and idols. The worship/prayers were
offered. They were properly being worshipped for the last many
decades. Accordingly, at this stage there is no justification to hold
that the idol should not be treated as juristic persons. There is no
material available on record that deities cannot be supposed to be
juristic persons. Thus on hyper technical grounds and for want of any
evidence from the side of defendants that Pran Pratishtha of the
deities plaintiff nos. 1 & 2 was not done and they are not juristic
persons cannot be accepted.
I have given anxious thoughts to the facts in issue. In this
context it appears that plaintiff no. 1 and 2 are juridical persons.
IDOL JURIDICAL PERSON
A Hindu idol is a juristic entity and has a juridical status. The
idol itself is not a legal person. The idol is representing and
embodying the spiritual purpose of the donor and it is this purpose,
which is the juristic person. The purpose of making a gift to person is
not to confer benefit on God, but to confer a benefit on those who
worship in that temple, by making it possible for them to have the
worship conducted in a proper and impressive manner. The Madras
High Court in the case of Vidyapurana Vs. Vidyanidhi [ILR Mad 435],
Justice Bhashyam Iyengar suggested that the community itself for
whose spiritual benefit the Institution is founded or endowed may be
more appropriately regarded as a corporate body forming the juristic
56
person rather than the idol or presiding deity.
The Privy Council in the case of Maharaja Jagadindra Nath Roy
Bahadur Vs. Rani Hemanta Kumari Debi [ILR 32 CAL 129 : XXXI I.A.
203] observed:
There is no doubt that an idol may be regarded as a
juridical person capable as such of holding property,
though it is only in an ideal sense that property is so
held. And probably this is the true legal view when
the dedication is of the completest kind known to the
law.
In this case it was argued that the period of limitation to file the
suit expired when the Sebait was a minor and the Sebait was not
entitled to claim the benefit of Section 7 of the Indian Limitation Act
for the extension of period of limitation. By virtue of his minority the
Privy Council observed that the possession and Management of the
dedicated property belong to Sebait. The right to file the suit is
vested with the Sebait and not in the idol. The right to sue accrue to
the plaintiff when he was under aged and he was entitled to file a suit
after attaining majority. In the case of Asthanjanamabhoomi, the
claim of adverse possession does not arise for the simple reason that
such claim for adverse possession can be made in respect of
properties dedicated to a deity and not where the property itself is
the deity. Such a claim also arise as the idol was not represented by a
Sebait who was competent to take a decision on behalf of the idol.
The Supreme Court in the case of Bishwanath Vs. Sri Thakur Radha
Ballabhji [AIR 1967 SC 1044] has placed reliance on the observation
of the Privy Council in the case of Jagad estate of an infant indra
Nath Roy Bahadur. Thereafter it is observed as under:
57
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 person 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 : See Kalyana Venkataramana
Ayyangar Vs. Kasturi Ranga Ayyangar AIR 1917 Mad
112 at page 118.
Thereafter the Supreme Court has observed further that:
The question is, can such a person represent the idol
when 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
and 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 adhoc interest. It is a
pragmatic, yet a legal solution to a difficult situation.
.... 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.
The Supreme Court has placed reliance on the observation of
B.K. Mukherjee in his book, The Hindu Law of Religious & Charitable
Trust II Edition, wherein it is observed that, where the Shebait refuses
to act for the idol, or where the suit is to challenge the act of the
Shebait himself as prejudicial to the interest of the idol, then there
must be some other agency which must have the right to act for the
58
idol. It is in this background, the Supreme Court has held the right of a
worshipper is to file a suit representing the idol. The principle laid
down in this case is applicable to the facts of the present case where
the worshippers of Ashtanajanamabhoomi have filed the suit for
safeguarding the interest of the deity. The ratio of the said case also
supports of a view that a deity can be considered as a perpetual
infant, which can only be represented by its next friend. A worshipper
can file a suit on behalf of the idol where Shebait is in different or has
an adverse interest (Kissan Bagwan Vs. Suri Morati Sansthan [AIR
1947 Nagpur 253].
The Supreme Court in the case of Jogendra Nath Naskar Vs. IT
Commissioner has observed as under:
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 Supreme Court in the case of Ramaraghava Reddy Vs.
Seshu Reddy (AIR 1967 SC 436) observed that:
Where the Shebait himself is negligent or where
the Shebait himself is 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. In such a case suit can be filed by
a next friend.
The Supreme Court relied upon the observation in the case of
Pramath Nath Vs. Pradyumna Kumar [AIR 1925 PC 139] wherein it is
stated that:
Will of the idol on that question must be respected,
inasmuch as the idol was not represented otherwise
than by Shebaits, it ought to appear through a
disinterested next friend appointed by the Court.
59
It has been argued that deities are perpetual minors for the
purpose of law of contract. However, this argument is not accepted in
Bhopal Shreedar Vs. Shasheebhusan [AIR 1933 Cal 109]. The deity is
held to be person or individual for the purpose of Income Tax Act.
However the minority status of the deity is not accepted in the matter
of holding of property as held by the Full Bench of Madras High Court
in MA Manathounithai Desikar Vs. Sundar (AIR 1971 Mad 1).
Thus, there is difference between juristic and legal persons.
Juristic Person : Persons are classified or distinguished as natural
and legal (or juristic). A natural person is a being to whom the law
attributes personality in accordance with reality and truth. Legal
persons are beings, real or imaginary, to whom the law attributes
personality by way of fiction when there is none if fact. Legal
personality is an artificial creation of the law. According to the
Supreme Court in Som Prakash Rekhi V. Union of India, AIR 1981
SC 212 A legal person is any entity other than human being to which
law attributes personality Further, the very words 'Juristic Person'
connote recognition of an entity to be in law a person which otherwise
it is not. In other words, it is not an individual natural person but an
artificially created person which is to be recognized in law as such
vide SGPC V. Som Nath Dass, AIR 2000 SC 1421.
Thus juristic or legal or artificial person is any subject matter to
which the law attributes a fictitious personality. It is a legal creation
either under a general law like Companies Act or by a specific
enactment or by a decision of the court. Being the creation of law,
legal persons can be of as many kinds structure as the law pleases. A
legal person is holder of rights and duties, it can own and disposes of
property, it can receive gifts and it can sue and be sued in its name in
60
the courts.
The Privy Council in Pramath Nath Mullick V. Pradyunna
Nath Mullic (1925) 52 Indian Appeals 245, 264 consistently held
this view in its words:
A Hindu Idol is, according to long established authority
founded upon the religious custom of Hindus, and
recognition thereof by the courts of law, a juristic entity. It
has a judicial status with power of suing and being sued.
Its interests are attended to by the person who has the
deity in his charge and who is in law its manager.
The spiritual and legal aspects of Hindu idol need be
distinguished. From the spiritual point of view idol is the very
embodiment of the Supreme Being, but with this aspect of the matter
law is not concerned, in fact it is beyond the reach of law. In law,
neither God nor any supernatural being can be a person. But so far
as the deity or idol stands as the representative and symbol of the
particular purpose indicated by donor, it can figure as a legal person.
The plaintiffs have specifically pleaded and have given reasons
as to why the place believed to be the birth place of Lord Ram is a
deity. Reliance has been placed on paras 19,20 and 21 of the plaint.
For convenience they are reproduced as below;-
19. That it is manifestly established by public records of
unimpeachable authority that the premises in dispute is the place
where Maryada Purushottam Sri Ramchandra Ji Maharaj was born as
the son of Maharaja Dashrath of the solar Dynasty, which according to
the tradition and the faith of the devotees of Bhagwan Sri Rama is the
place where HE manifested HIMSELF in human form as an incarnation
of BHAGWAN VISHNU. The place has since ever been called Sri Rama
61
Janma Bhumi by all and sundry through the ages.
20. That the place itself, or the ASTHAN SRI RAMA JANMA BHUMI, as
it has come to be known, has been an object of worship as a Deity by
the devotees of BHAGWAN SRI RAMA, as it personifies the spirit of the
Divine worshipped in the form of SRI RAMA LALA or Lord RAMA the
child. The Asthan was thus Deified and has had a juridical personality
of its own even before the construction of a Temple building or the
installation of the idol of Bhagwan Sri Rama thereat.
21. That it may be here stated that the Hindus do not worship the
stone or the metal shaped into the form of their ISHTA DEVATA, or the
stone of SALIGRAM which has no particular shape at all. They worship
the Divine, which has no quality or shape or form, but can be known
only when it manifests ITSELF in the form of an incarnation, and
therefore, adopt the form of his incarnation as their ISHTA DEVA. For
some even that is unnecessary. They can meditate upon the formless
and the shapeless DIVINE and aspire for a knowledge of him through
his grace. It is the SPIRIT of the DIVINE which is worshipped by most
Hindus, and not its material form or shape in an idol. This SPIRIT of
the DIVINE in an idol is invoked by the ritual of pranapratishtha. The
SPIRIT of the DIVINE is indestructible and ever remains present
everywhere at all times for any one to invoke it in any shape or form
in accord with his own aspiration. Different persons are at different
levels of realisation of the REALITY. Some find it helpful to pursue a
particular set of rituals for their spiritual uplift. A large section of
Hindus follow BHAKTI MARGA, and BHAGWAN SRI RAMA or BHAGWAN
SRI KRISHNA is their ISHTA DEVA.
Shri K.N. Bhat Senior Advocate has further urged that plaintiff
nos. 1 and 2 are juristic persons , He has placed reliance on the
62
Hindu Law of Religious and Charitable Trusts by B.K.Mukherjea.
Relevant extracts are reproduced as under:-
A Hindu place of worship can be deemed to be a deity. Thus,
on the basis of aforesaid contentions I hold that deities are juristic
persons and they can sue or be sued. On behalf of Hindus it is urged
that even by worship and chanting of Mantras Pranprathistha can be
done. Accordingly the contentions that without any Pranprathistha
deities are not juristic persons is not acceptable. Hindus claim that
there was worship and Pranprathistha of the deities and they are
juristic persons.
In view of above discussion, there is no doubt that plaintiff no.
1 is a deity and plaintiff no. 2 is worshipped from times immemorial
and accordingly it is also a deity and they can sue the defendants
through the next friend .
The aforesaid view is based on the decision of Hon'ble apex
court in Bishwanath and another Vs. Shri Thakur
Radhabhallabhji and others AIR 1967 S.C.1044, which reads as
under:
8 . The second question turns upon the right of a worshipper to
represent an idol when the Shebait or manager of the temple is acting
adversely to its interest. Ganapathi Iyer in his valuable treatise on
"Hindu and Mahomedan Endowments", 2nd Edition at page 226, had
this to say in regard to the legal status of an idol in Hindu law :
"The ascription of a legal personality to the deity supposed
to be residing in the image meets with all practical
purposes. The deity can be said to possess property only in
an ideal sense and the theory is, therefore, not complete
unless that legal personality is linked to a natural person."
63
It would be futile to discuss at this stage the various decisions which
considered the relationship between the idol and its Shebait or
Manager qua the management of its property, as the Privy Council in
Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi,
has settled the legal position and stated thus :
"There is no doubt that an idol may be regarded as a
juridical person capable as such of holding property, though
it is only in an ideal sense that property is so held."
Dealing with the position of the Shebait of such an idol, the Privy
Council proceeded to state :
"........ it still remains that the possession and management
of the dedicated property belong 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."
This was a case where the Shebait filed a suit for eviction from the
dedicated property within three years after attaining majority and the
Board held that, as he had the right to bring the suit for the protection
of the dedicated property, section 7 of the Limitation Act, 1877, would
apply to him. The present question, namely, if a Shebait acts
adversely to the interests of the idol whether the idol represented by
a worshipper can maintain a suit for eviction, did not arise for
consideration in that case. That question falls to be decided on
different considerations.
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
64
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 : see Kalyana Venkataramana Ayyangar v.
Kasturi Ranga Ayyangar . In the present case, the plaintiff is not only
a mere worshipper but is found to have been assisting the 2nd
defendant in the management of the temple.
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 in the 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
65
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.
11. There are two decisions of the Privy Council, namely Pramatha
Nath Mullick v. Pradyumna Kumar Mullick and Kanhaiyat Lal v. Hamid
Ali , wherein the Board remanded the case to the High Court in order
that the High Court might appoint a disinterested person to represent
the idol. No doubt in both the cases no question of any deity filing a
suit for its protection arose, but the decisions are authorities for the
position that apart from a Shebait, under certain circumstances, the
idol can be represented by disinterested persons. B. K. Mukherjea in
his book "The Hindu Law of Religious and Charitable Trust" 2nd
Edition, summarizes the legal position by way of the following
propositions, among others, at page 249 :
"(1) An idol is a juristic person in whom the title to the
properties of the endowment vests. But it is only in an ideal
sense that the idol is the owner. It has to act through human
agency, and that agent is the Shebait, who is, in law, the
person entitled to take proceedings on its behalf. The
personality of the idol might therefore be said to be merged
in that of the Shebait.
(2) Where, however, the Shebait refuses to act for the idol,
or where the suit is to challenge the act of the Shebait
himself as prejudicial to the interests of the idol, then there
must be some other agency which must have the right to
act for the idol. The law accordingly recognises a right in
persons interested in the endowment to take proceedings
66
on behalf of the idol.
This view is justified by reason as well as by decision.
In view of the aforesaid judgement a Shebait or worshipper can
file the suit as next friend for the reasons that an idol is in a position
of minor and it has to act through human agency. Thus, in this case
the plaintiff no. 3 is the next friend and accordingly he has a right to
maintain the suit.
It may further be clarified that plaintiff no. 3 was a Senior
Advocate and a retired Judge of the High Court, who filed the suit as
next friend and there is no allegation on behalf of the defendant that
he was acting adversely to the interest of plaintiff nos. 1 and 2.
Consequently, looking to the case from all angles it transpires that
plaintiff nos. 1 and 2 are juridical persons and plaintiff no. 3 as a next
friend is entitled to maintain the suit on the basis of settled
proposition of law as laid down in AIR 1925 Privy Council page 139
Pramatha Nath Mullick Vs. Pradyumna Kumar Mullick and AIR 1933
Privy Council 198(1) KanhaiyaLal Vs. Hamid Ali
Reliance may be placed on following case laws and relevant
portions of the judgements which are given below;
Official Trustee of West Bengal (For The Trust of Chitra
Dassi) V. C.I.T., West Bengal, A.I.R.1974 S.C.1355 (para 3):
3. It was conceded before us on behalf of the appellant that if the
word used had been a "person" instead of an "individual" the deity
would be a person because a person will include a juristic person.
That a Hindu deity is a juristic person is a well established proposition
and has been so for a long time. In Maharanee Shibessouree Debia v.
Mothooranath Acharjo it was observed:
67
The Talook itself, with which these jummas were connected
by tenure, was dedicated to the religious services of the
Idol. The rents constituted, therefore, in legal contemplation,
its property. The Sahabit had not the legal property, but only
the title of Manager of a religious endowment.
In Prosunno Kumari Debya v. Golab Chand Baboo, the above
observations were cited with approval. In Manohar Ganesh v.
Lakhmiram, a Division Bench of the Bombay High Court observed:
The Hindu law, like the Roman law and those derived from
it, recognises, not only corporate bodies with rights of
property vested in the corporation apart from its individual
members, but also the juridical persons or subjects called
foundations.... It is consistent with the grants having been
made to the juridical person symbolized or personified in the
idol....
The Madras High Court in Vidyapurna Tirtha Swami v. Vidyanidhi
Tirtha Swami expressed the view:
It is to give due effect to such a sentiment widespread and
deep rooted as it has always been, with reference to
something not capable of holding property as a natural
person, that the laws of most countries have sanctioned, the
creation of a fictitious person in the matter, as is implied in
the felicitous observation made in the work already cited:
'Perhaps the oldest of all juristic persons is the God, hero or
the saint'.
In Pramatha Nath Mullick v. Pradumna Kumar Mullick
A Hindu idol is, according to long established authority,
68
founded upon the religious customs of the Hindus, and the
recognition thereof by courts of law, a "juristic entity'. It has
a juridical status with the power of suing and being sued. Its
interests are attended to by the person who has the deity in
his charge and who is in law its manager with all the powers
which would, in such circumstances, on anology, be given to
the manger of the estate of an infant heir. It is unnecessary
to quote the authorities : for this doctrine, thus simply
stated, is firmly established.
In Shri Kalanka Devi Sansthan vs. the Maharashtra
Revenue Tribunal, Nagpur and Ors., [A.I.R.1970 S.C.439] Apex
Court held as under:
4. Now it is well known that when property is given absolutely for the
worship of an idol it vests in the idol itself as a juristic person. As
pointed out in Mukherjee's Hindu Law of Religious and Charitable
Trust at pp. 142-43, this view is in accordance with the Hindu ideas
and has been uniformly accepted in a long series of judicial decisions.
The idol is capable of holding property in the same way as a natural
person. "It has a juridical status with the power of suing and being
sued. Its interests are attended to by the person who has the deity in
his charge and who is in law its manager with all the powers which
would, in such circumstances, on analogy, be given to the manager of
the estate of an infant heir". The question, however, is whether the
idol is capable of cultivating the land personally. The argument raised
on behalf of the appellant is that under Explanation I in Section 2(12)
of the Act a person who is subject to any physical or mental disability
shall be deemed to cultivate the land personally if it is cultivated by
the servants or by hired labourer. In other words an idol or a Sansthan
69
that would fall within the meaning of the word "person" can well be
regarded to be subject to a physical or mental disability and land can
be cultivated on its behalf by servants or hired labourers. It is urged
that in Explanation (I) the idol would be in the same position as a
minor and it can certainly cultivate the land personally within the
meaning of Section 2(12). It is difficult to accept the suggestion that
the case of the appellant would fall within Explanation (I) in Section
2(12). Physical or mental disability as denned by Section 2(22) lays
emphasis on the words "personal labour or supervision". As has been
rightly pointed out in Shri Kesheoraj Deo Sansthan, Karanji v. Bapurao
Deoba and Ors. in which an identically similar point came up for
consideration, the dominating idea of anything done personally or in
person is that the thing must be done by the person himself and not
by or through some one else. In our opinion the following passage is
that judgment at p. 593 explains the whole position correctly :
It should thus appear that the legislative intent clearly is
that in order to claim a cultivation as a personal cultivation
there must be established a direct nexus between the
person who makes such a claim, and the agricultural
processes or activities carried on the land. In other word
disputed structure, all the agricultural operations, though
allowed to be done through hired labour or workers must be
under the direct supervision, control, or management of the
landlord. It is in that sense that the word disputed structure
"personal supervision" must be understood. In other word
disputed structure, the requirement of personal supervision
under the third category of personal cultivation provided for
70
in the definition does not admit of an intermediary between
the landlord and the labourer, who can act as agent of the
landlord for supervising the operations of the agricultural
worker. If that is not possible in the case of one landlord, we
do not see how it is possible in the case of another landlord
merely because the landlord in the latter case is a juristic
person.
In other words the intention is that the cultivation of the land
concerned must be by natural persons and not by legal persons.
In Yogendra Nath Naskar v. Commissioner of Income-tax,
Calcutta, (AIR 1969 SC 1089) Apex Court held as under:
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. It was argued on behalf of the appellant
that the word 'Individual' in Section 3 of the Act should not be
construed as including a Hindu deity because it was not a real but a
juristic person. We are unable to accept this argument as correct. We
see no reason why the meaning of the word 'individual' in Section 3 of
the Act should be restricted to human being and not to juristic
71
entities.
In Ram Jankijee Deities & Ors. v. State of Bihar and Ors,
(AIR 1999 SC 2131) Apex Court held as under:
One of the questions emerging at this point, is as to nature of
such an idol, and the services due thereto. A Hindu idol is, according
to long established authority, founded upon the religious customs of
the Hindus, and the recognition thereof by Courts of law, a "juristic
entity." It has a juridical status with the power of suing and being
sued. Its interests are attended to by the person who has the deity in
his charge and who is in law its manager with all the powers which
would, in such circumstances, on analogy, be given to the manager of
the estate of an infant heir. It is unnecessary to quote the authorities;
for this doctrine, thus simply stated, is firmly established.
A useful narrative of the concrete realities of the position is to be
found in the judgment of Mukerji J. in Rambrahma Chatterjee v. Kedar
Nath Banerjee , "We need not describe here in detail the normal type
of continued worship of a consecrated image - the sweeping of the
temple, the process of smearing, the removal of the previous day's
offerings of flowers, the presentation of fresh flowers, the respectful
oblation of rice with flowers and water, and other like practices. 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."
72
19. In this context reference may also be made to an earlier decision
of the Calcutta High Court in the case of Bhupatinath v. Ramlal
Maitra , wherein Chatterjee, J. (at page 167) observed:
'A Hindu does not worship the "idol" or the material body
made of clay or gold or other substance, as a mere glance
at the mantras and prayers will show. They worship the
eternal spirit of the deity or certain attributes of the same,
in a suggestive form, which is used for the convenience of
contemplation as a mere symbol or emblem. It is the
incantation of the mantras peculiar to a particular deity that
causes the manifestation or presence of the deity or
according to some, the gratification of the deity.
20. God is Omnipotent and Omniscient and its presence is felt not 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 manifestation in 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 - (see in this context Golap Chandra Sarkar, Sastri's
Hindu Law: 8th Edn.). It is the human concept of the Lord of the Lords-
it is the human vision of the Lord of the Lords: How one sees the
deity: how one feels the deity and recognises the deity and then
establishes the same in the temple upon however performance of the
consecration ceremony. Shastras do provide as to how to consecrate
and the usual ceremonies of Sankalpa and Utsarga shall have to be
performed for proper and effective dedication of the property to a
73
deity and in order to be termed as a juristic person. In the conception
of Debutter, two essential ideas are required to be performed: In the
first place, the property which is dedicated to the deity vests in an
ideal sense in the deity itself as a juristic person and in the second
place, the personality of the idol being linked up with natural
personality of the shebait, being the manager or being the Dharam
karta and who is entrusted with the custody of the idol and who is
responsible otherwise for preservation of the property of the idol. The
Deva Pratistha Tatwa of Raghunandan and Matsya and Devi Puranas
though may not be uniform in its description as to how Pratistha or
consecration of image does take place but it is customary that the
image is first carried to the Snan Mandap and thereafter the founder
utters the Sankalpa Mantra and upon completion thereof, the image is
given bath with Holy water, Ghee, Dahi, Honey and Rose water and
thereafter the oblation to the sacred fire by which the Pran Pratistha
takes place and the eternal spirit is infused in that particular idol and
the image is then taken to the temple itself and the same is
thereafter formally dedicated to the deity. A simple piece of wood or
stone may become the image or idol and divinity is attributed to the
same. As noticed above, it is formless, shapeless but it is the human
concept of a particular divine existence which gives it the shape, the
size and the colour. While it is true that the learned Single Judge has
quoted some eminent authors but in our view the same does not
however, lend any assistance to the matter in issue and the Principles
of Hindu Law seems to have been totally misread by the learned
Single Judge.
I agree with the contentions of Senior Advocate, Sri Bhat, that
74
plaintiff nos. 1 and 2 are like infants and in view of AIR 1925 Privy
Council page 139 at page 140 Pramatha Nath Mullick Vs
Pradyumna Kumar they are juristic entity and have juridical
status.
In AIR 1937 Calcutta, 338 Bimal Krishna Ghosh Vs.
Shebaits of Sree Sree Ishwar Radha Ballav Jiu a Division Bench
of Calcutta High Court held that deities are perpetual infants and
legal owner of the property and Shebait occupies the position of a
Manager.
In celebrated case of Allahabad High Court Jodhi Rai Vs
Basdeo Prasad 1911 (33) Allahabad ( ILR)page 735 at page
737 the Full Bench of this Court held that deity is like minor and idol
was held to be a juristic person, who can hold the property. If a suit is
brought by or against minor it should be brought like a suit of minor.
Thus, a suit on behalf of idol can be brought in the name of an idol
represented by the Manager.
In AIR 1967 Supreme Court 1044 Bishwanath and another
Vs. Shri Thakur Radhabhallabhji and others the apex court took
a view that idols like plaintiff nos. 1 and 2 in the suit are minors and
their interest cannot be left in a lurch and even the worshipper can
sue on their behalf and he is clothed with an ad hoc power of
representation to protect the interest of the deities. Thus, plaintiff no.
3 has rightly filed the suit on behalf of plaintiff nos. 1 and 2 , the
deities. I do not find any justification to hold that the decision of Full
Bench in the case of Jodhi Rai Vs. Basdeo Prasad 1911 (33)
Allahabad (ILR)( supra) requires any re-consideration for the reason
that Full Bench of this Court considered a number of decisions
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including earlier Full Bench decision of different High Courts.
The decision is correct on the ground that Hon'ble Apex Court
in Bishwanath and another Vs. Shri Thakur Radhabhallabhji
and others AIR 1967 Supreme Court page 1044 also
considered the position of idols as minors. I do not find any flaw on
the part of the plaintiff no. 3 to file the suit as next friend for the
deities, plaintiffs no. 1 and 2. Action of plaintiff no. 3 is further
justified by a Full Bench decision of Madras High Court as reported
in AIR 1971 Madras page 1( Full Bench) Manathu Maitha
Desikr Vs. Sundaralingam where their Lordships took the view
that the deity, who is owner of the property, suffers from physical
disability as a minor and its interest had to be looked after in
perpetuity Thus, in the instant case plaintiff no. 3 ,who is next friend
and senior Advocate and retied Judge of the High Court has filed the
suit alleging that deities, who are minor, under physical disability are
juridical persons and can maintain the suit for declaration and
injunction .
In view of the discussion referred to above , I hold that plaintiff
nos. 1 and2 are juridical persons and deities can be represented
through plaintiff no. 3, as next friend, who is worshipper and he is
also entitled and is competent to act on their behalf.
Issue nos. 1,2 and 6 are decided in favour of plaintiffs and
against the defendants.
ISSUE NO. 5
Is the property in question properly identified and
described in the plaint ?
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FINDINGS
The property, in question, is said to have been not properly
identified and described in the plaint. On behalf of the plaintiffs, the
attention of this Court was drawn on paras 1,2,14, 18,20 and 24 of
the plaint coupled with the statement of plaintiff No. 3, Sri Devki
Nandan Agrwal, whose statement was recorded under Order X Rule 2
C.P.C. On 30.4. 1992. On 10.9.1992 the Court has also passed the
order on Application No. 110-0 of 1992. Thus, the details of the
property in suit have already been given and property is identified.
Thus, at the time of filing of the suit the property was not vested in
the Central Government. Undisputedly, the plaintiffs have clearly
mentioned the land which is identifiable . The plaintiffs have
attached the map along with the plaint. Out of such maps , the map
prepared by Vakail Commissioner Sri Sheo Shanker Lal in Original Suit
No. 2 of 1950, has also been attached. Thus, the land in question is
identifiable. Issue No. 5 is decided in favour of the plaintiffs and
against the defendants.
ISSUE NOS. 7 & 8
7. Whether the defendant no. 3, alone is entitled to
represent plaintiffs 1 and 2, and is the suit not
competent on that account as alleged in paragraph 49 of
the additional written statement of defendant no. 3 ?
8. Is the defendant Nirmohi Akhara the Shebait of
Bhagwan Sri Rama installed in the disputed structure ?
FINDINGS
Since these issues are inter related, they can be conveniently
77
decided at one place.
On behalf of the defendant no. 3, it has been claimed that
plaintiff no. 3 is not entitled to file present suit on behalf of the
plaintiff nos. 1 and 2 and in view of para 49 of additional written
statement plaintiff no. 1 can only be represented by defendant no.3
and, therefore, plaintiff no. 1 should be transposed as defendant to be
represented by defendant no. 3. It has further been submitted that
defendant no. 3 Nirmohi Akhara has not come out with a case that
they are Shabait of Bhagwan Shri Ram installed in the disputed
property. In this context the attention of this Court was drawn to the
averments of Original Suit No. 26 of 1959 Nirmohi Akhara Vs. Priya
Dutt Ram which has been re-numbered as O.O.S.No. 3 of 1989. In the
instant suit it has been stated that Nirmohi Akhara is of public
character and Mahant Raghunath Das was the head and its Mahant
and Sarvarakar. Thus, the case of the plaintiff in O. O.S.No. 3 of 1989,
who is at present defendant no.3, before this Court is that they have
claimed ownership of the property in suit as religious denomination .
It has further been averred at paras 4-A and 4-B of the plaint of O.O.S.
No.3 of 1989 that Nirmohi Akhara owned several temples and was
managing the same. Thus, it is established that defendant no. 3
claimed his right over the disputed property as an owner. They have
not contested the suit as Sarvarakar or Shebait of any deity referred
to in O. O.S.No. 3 of 1989. It further transpires from the averments of
plaint in O.O.S.No. 3 of 1989 that they have referred to the temple of
Janambhumi which does not situate in the place in dispute where
deities are installed. In O.O.S.No. 5 of 1989, the plaintiffs no. 1 and
2 are the deities and plaintiff no.3 as a next friend and worshipper
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has filed the suit in which defendant no. 3 has filed written statement
to this effect that the suit should be dismissed. He has also
requested that the plaintiff no. 1 should be transposed as defendant
as stated in para 49 of additional written statement. Thus, in the
property in suit, defendant no. 3 does not claim any interest or has
not shown any inclination to protect the interest of infant deities, who
are in the eyes of law minors . Thus, assertion of defendant no. 3 that
the plaintiff no. 3 was not competent to sue on behalf of plaintiff
nos. 1 and 2 appears to be misconceived. The defendant no. 3 has
failed to adduce any evidence in support of his claim. He has not
even referred to anywhere in the written statement or additional
written statement filed before this Court in O.O.S.No. 5 of 1989 that
he is Sarvarakar or Shabait of the deities and he is alone competent
to contest the case. On the other hand, he claims ownership of a
temple which is not in existence where the deities , the plaintiffs no. 1
and 2 are not installed. As regards the existence of plaintiff no. 2 is
concerned, defendant no. 3 denies the existence. Even if for the
argument sake it is presumed that he is Sarvarakar, he is Shabait or
the Manager, even then it can safely be presumed that under the
above circumstances he has ignored the interest of the idols and he
has refused to act for the idols and he has acted as a Shabait against
the interest of the idols. Thus, his action can be deemed to be pre
judicial to the interest of the idols. Consequently, in such a situation in
the light of the decision of Hon'ble the apex court in A.I.R.1967
Supreme Court 1044 Bishwanath and another Vs. Shri Thakur
Radhaballabhji and others , the plaintiff no. 3 alone is competent
to represent plaintiff nos. 1 and 2 as a worshipper . The worshipper
can also be permitted to institute the suit as idol or its beneficiaries
79
in spiritual sense and its transpires from the averments of the plaint
that plaintiff no. 3 has claimed himself to be the devotee of plaintiff
nos. 1 and 2 and had shown deeper interest in plaintiff nos. 1 and 2
as worshipper and without any pecuniary advantage from plaintiff
nos. 1 and 2. There are circumstances in which the interest of the idol
can be protected even by appointing any disinterested person by the
Court to represent the idol apart from Shabait, if his conduct is pre
judicial to the deities. Hon'ble the Apex Court has clarified this
situation in paras 8,9,10 and 11 of the view taken in Bishwanath
and another Vs. Shri Thakur Radhabhallabhji and others
(Supra). For convenience para 10 is reproduced as under :
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 in the 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
80
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; see Radhabai v. Chimnaji (1878)ILR 3
Bom 27, Zafaryab Ali v. Bakhtawar Singh, (1883),ILR 5 All 497,
Chidambaranatha Thambiran vs. P. S. Nallasiva Mudaliar, 6
Mad LW 666: (AIR 1918 Mad 464), Dasondhay vs. Muhammad
Abu Nasar, (1911) ILR 33 All 660 at p. 664: (AIR 1917 Mad
112) (FB), Sri Radha Kirshnaji v. Rameshwar Prashad Singh :
AIR 1934 Pat 584, Manmohan Haldar v. Dibbendu Prosad Roy
Choudhury, AIR 1949 Cal 199.
Thus, defendant no. 3 Nirmohi Akhaa is not Shebait of
Bhagwan Shri Ram installed in the disputed structure and also not
competent to maintain the present suit in which as per his request
plaintiff no. 1 should be transposed as defendant . On the contrary,
the plaintiff no. 3 has proved before this Court that he may be
permitted to represent the idols ,plaintiffs no. 1 and 2 as he is
worshipper and idols are in the position of a minor and their interest
cannot be left in a lurch. Opposite Party No. 3 is a person
interested in the worship of the idols .Thus, at least he has ad hoc
power of representation to protect the interest of the deities . Thus, in
view of the submissions , plaintiff no. 3 is entitled to maintain the suit
and defendant no. 3 is not competent to represent plaintiffs no. 1 and
2, the deities.
In view of the discussion referred to above issue nos. 7 and 8
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are decided against the defendant no. 3 and in favour of the plaintiff
nos. 1 to 3.
ISSUE NO. 19
Whether the suit is bad for non-joinder of necessary
parties, as pleaded in paragraph 43 of the additional
written statement of defendant no. 3 ?
FINDINGS
it has been urged on behalf of the defendant no. 3 that in view
of the contentions raised in para 43 of the additional written
statement, the suit is bad for non-joinder of the necessary party. Para
43 of the additional written statement is reproduced as under ;-
That outer portion consisting of Bhagwan Ram Lala on Sri Ram
Chabutra along with other deities, Chathi Pujan Sthan and Bhandar
with eastern outer wall carrying engraved image of Varah Bhagwan
with southern and northern wall and also western portion of wall
carries the present municipal No. 10/12/29 old 506, 507 and older 647
of Ram Kot ward of Ayodhya City had been a continuous referred in
main litigation since 1885 till Reg. Suit No. 239/82 of the Court of Civil
Judge, Faizabad and in every case Nirmohi Akhara was held always in
possession and ianagement of this temple so the Bhagwan Ram Lalaji
installed by Nirmohi Akhara on this Ram Chabutra is a distinct legal
entity owned by defendant no.3. That suit is bad for want of
impleadment of necessary party as mentioned above.
In view of the contentions in para 43 it transpires from it that
defendant no. 3 has come out with case that Nirmohi Akhra always
remained in possession and management of the temple of Bhagwan
Shri Ram Lala installed by Nirmohi Akhara and the deities are distinct
82
legal entity at Ram Chabutra. It is also claimed by defendant no. 3
that he contested the suit in the year 1885 and also contested the
case no. 237/82 before Civil Judge, Faizabad.
In this context it transpires that this Court has already recorded
finding on issue nos. 1,2,6,7 and 8. In view of the findings it
transpires that plaintiff no. 3 was found entitled to represent plaintiff
nos. 1 and 2 as next friend and defendant no. 3 was not found to be
the Shabait of plaintiff nos. 1 and 2.
On the contrary, it transpires that in view of the decision of
Hon'ble the apex court in AIR 1967 Supreme Court 1044 Bishwanath
and another Vs. Shri Thakur Radhabhallabhji and others and
the law laid down by the apex court at para nos. 11 and 12 of the
aforesaid ruling, the defendant no. 3 acted against the interest of the
minor and file O.O.S.No. 3 of 1989 which is connected case in which
he claims himself to be the owner of the property in suit and as
referred to another temple of Ram Lala. Thus, he has not taken
proper care for the interest of minor deities, plaintiff nos. 1 and 2.
Thus, it is not open for him to raise a plea that he alone is competent
to institute the suit on behalf of the plaintiff no. 1 Defendant No. 3
has even declined plaintiff no. 2 as a deity and thus, apparently he is
not entitled to protect the interest of plaintiff no.2. Thus, from all or
any angle the suit is not bad for non-joinder of defendant no 3. The
plaintiff no. 3 as a worshipper has right to maintain the suit.
Issue no. 19 is decided accordingly.
ISSUE NO.20
Whether the alleged Trust, creating the Nyas defendant
83
no. 21, is void on the facts and grounds stated in
paragraph 47 of the written statement of defendant no.
3 ?
FINDINGS
On behalf of defendant no. 3 it is submitted that in view of the
averments in para 47 of the written statement no valid trust could be
created and thus, the alleged trust cannot maintain the suit. It is
further submitted that plaintiff no. 3 is associated with Vishwa Hindu
Parishad and he is not worshipper of plaintiff nos. 1 and 2. At para 16
of the written statement it is submitted that alleged trust has no
relevance at all to the present dispute. Mahant Ram Kewal Das is a
simple Sadhu and he has been made as a trustee. Due to malicious
plan of the alleged Trust he encroached upon the rights and interest
of Nirmohi Akhara which is Pandhayati Akhra and is governed by
panches of Akhara. The trust came into existence in 1985 to damage
the interest of Akhara, defendant no. 3. The trust is not directly
interested in the welfare interest and worship of Bhagwan Shri Ram
and Nyas is not proper party. On the other hand, on behalf of plaintiff,
it is suggested that in order to improve the temple administration
and to re-construct a new temple at Ram Janam Bhumi and also Seva
Archana and puja plaintiffs-deities and to protect their interest the
trust has been created by the Hindus,who reposed the trust in
Ramanand Sampradaya and Jagat Guru Mahant Ram Kewal Das is
looking after the trust and the deed is also enclosed as Annexure No.
4 to the plaint. A perusal of annexure no. 4 to the plaint reveals that
the trust was created for the betterment and for the protection of
interest of deities and for the construction of the temple also to
expand religious thoughts among the masses and also to provide
84
proper facilities to the pilgrims. The deed is registered. Nirmohi
Akhara has not filed any suit challenging the validity of the trust
created in the year 1985. They have also not agitated before any
competent court for the formation of the trust. Thus, the trust which
came into existence in the year 1985 has filed the suit in 1989. In this
reference it is pertinent to refer that defendant no. 3 now cannot
challenge before this Court the formation of the trust. Unless trust
deed is cancelled, it has to be presumed as registered document
and no inference can be drawn that the deed was registered
maliciously against the interest of defendant no. 3. Thus, no
declaration can be given in this suit that trust deed is void on the
ground referred to in para 47 of the additional written statement.
There is no evidence worth the name that the plaintiff was
illegally playing in the hands of Vishwa Hindu Parishad and
maliciously wants to usurp the property of defendant no. 3. Thus,
looking to the averments of the plaint specially paras 15,16 and 17
and annexure no. 4 of the plaint, it transpires that trust deed may be
created by Hindus for lawful purpose .
Thus, the object of the trust is not forbidden by law and the
trust is valid. Issue no. 20 is decided in favour of the plaintiffs and
against the defendant no.3.
ISSUE NO. 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 no. 4 and in
paragraph 1 of the written statement of defendant no.
5 ?
85
FINDINGS
On behalf of the defendants, it is suggested that idols in
question cannot be treated as a deity. In this reference written
statements filed by defendant no. 4 and defendant no. 5 have been
relied upon. The attention of this Court was drawn of paras
1,11,12,21,22,27 and 41 of written statement of defendant no. 4 and
para 1 of the written statement of defendant no. 5.
I have gone through the averments made in the aforesaid
paragraphs. It transpires that defendant nos. 4 and 5 have denied
the contents of plaint. It has been averred that plaintiff nos. 1 and 2
cannot be treated as deities as the idols were kept inside the mosque
in the night of 22/23 rd December, 1949. Thus, the idols were not
placed in accordance with the tradition and ritual of Hindu law. It is
further submitted that there is no comparison of Kedar Nath ,
Vishnu Pad temple of Gaya with plaintiff no. 2. It is also mentioned
that Sita Rasoi and Charan situate outside the premises of the
mosque. Ram Chandra Ji as divine Lord cannot be said to reside at
any place or in any idols kept inside the said mosque. Such idols and
the place inside the mosque cannot be said to be deity. They have
denied the contents of para 27 of the plaint and averred that no
Pranprathistha or purification of the alleged Asthan was done. The
instant suit is not maintainable as plaintiff nos. 1 and 2 are neither
deities nor they can be treated as juristic persons. On behalf of the
plaintiffs it is submitted that according to concept of Hindu Law the
deity is based on faith. The deity is is the image of Supreme Being.
The temple is the home of the deity. It is enough that Supreme Being
is installed in the temple. The worship of such images of Supreme
86
Being is acceptable in Hindu Law. The Hindus have also the belief that
idols represent deity. Reliance has been placed on a book The Hindu
Law of Religious and Charitable Trust by B.K.Mukharjee on para 1.33
pages 26 and 27.
The traditional and classical legal literature relating to
Hindus has also duly sanctified such belief and faith which
has been exalted to a juristic status requiring legal
recognition. In this connection, the Hindu Law of
Religious and Charitable Trusts by B.K. Mukherjea
lays down some of the relevant concepts relating to deity
and the temple along with concerned page number which are
consistently being recognized as judicial authorities, not only
in India but also abroad. The concept mentioned therein
along with concerned page numbers are being quoted below:
Page 26-27 Para 1.33: Idols representing same
divinity One thing you should bear in mind in connection
with image worship viz. That the different images do not
represent separate divinities; they are really symbols of the
one Supreme Being, and in whichever name and form the
deity might be invoked, he is to the devotee the Supreme
God to whom all the functions of creation, preservation and
destruction are attributed. In worshipping the image
therefore the Hindu purports to worship the Supreme Deity
and none else. The rationale of image worship is thus
given in a verse which is quoted by Raghunandan:
Chinmayasyaadwitiiyasya Naskalashariirina
Saadhakaanaam Hinaathayi Brahmanii Roopakalpanaa.
87
It is for the benefit of the worshippers that there is
conception of images of Supreme Being which is
bodiless, has no attribute, which consists of pure
spirit and has got no second.
Temples and mutts are the two principal religious institutions
of the Hindus. There are numerous texts extolling the merits
of founding such institutions. In Sri Hari Bhaktibilash a
passage is quoted from Narsingha Purana which says that
whoever conceives the idea of erecting a divine temple,
that very day his carnal sins are annihilated; what then shall
be said of finishing the structure according to rule ......... He
who dies after making the first brick obtains the religious
merits of a competed Jagna.
Other kinds of religious and charitable
benefactions.- A person consecrating a temple, says
Agastya, also one establishing an asylum for ascetics also,
one consecrating an alms house for distributing food at all
times ascend to the highest heaven.
Besides temples and mutts the other forms of religious and
charitable endowments which are popular among the Hindus
are excavation and consecration of tanks, wells and other
reservoirs of water, planting of shady trees for the benefit of
travellers, establishment of Choultries, satras or alms houses
and Dharamsala for the neefit of mendicants and wayfarers,
Arogyasalas or hospitals, and the last though not the least,
Pathshalas or schools for giving free education. Excavation of
tanks and planting of trees are Purtta works well known from
the earliest times. I have already mentioned that there is a
88
mention of rest houses for travellers even in the hymns of
the Rigveda. The Propatha of the Vedas is the same thing as
Choultrie or sarai and the name given to it by subsequent
writers is Pratishraygrih. They were very popular during the
Buddhist tie. In Dana Kamalakara, a passage is quoted from
Markandeya Puran which says that one should make a house
of shelter for the benefit of travellers; and inexhaustible is his
religious merit which secures for him heaven and liberation.
There are more passages than one in the Puranas
recommending the establishment of hospitals. One must
establish a hospital furnished with valuable medicines and
necessary utensils placed under an experienced physician
and having servants and rooms for the shelter of patients.
This text says further that a man, by the gift of the means of
freeing others from disease, becomes the giver of
everything. The founding of educational institutions has been
praised in the highest language by Hindu writers. Hemadri in
his Dankhanda has quoted a passage from Upanishad
according to which gifts of cows, land and learning are said
to constitute Atihaan or gifts of surpassing merit. In another
text cited by the same author, it is said that those excluded
from education do not know the lawful and the unlawful;
therefore no effort should be spared to cause dissemination
of education by gift of property to meet its expenses.
Page 38-Para 1.50. The idol as a symbol and
embodiment of the spiritual purpose is the juristic
person in whom the dedicated property vests:- The
Privy Council have held uniformly that the Hindu idol is a
89
juristic person in whom the dedicated property vests. A
Hindu idol, the Judicial Committee observed in one of its
recent pronouncements, is according to long established
authority founded upon the religious customs of the Hindus
and the recognition thereof by Courts of Law, a juristic entity.
It has a juridical status with the power of suing and being
sued. You should remember, however, that the juridical
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 by the Pran Pratistha
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 idol as representing
and embodying the spiritual purpose of the donor is the
juristic person recognized by law and in this juristic person
the dedicated property vests.
Page 38-39-Para 1.51. Deity owner in a secondary
sense.-The discussions of several Hindu sages and
commentators point to the conclusion that in case of
dedicated property the deity is to be regarded as owner not
in the primary but in the secondary sense. All the relevant
texts on this point have been referred to by Sir Asutosh
Mookerjee in his judgment in Bhupati v Ramlal and I will
reproduce such portions of them as are necessary for my
present purpose.
Sulapani, a reputed Brahminical Jurist, in his discourse on
Sraddha thus expresses his views regarding the proper
significance of gift to God:- in 'Donation' having for its
90
dative case, the Gods like the Sun, etc., the term 'donation'
has a secondary sense. The object of this figurative use
being extension to it of the inseparable accompaniment of
that (gift in its primary sense), viz., the offer of the sacrificial
fee etc. it has already been remarked in the chapter on the
Bratis that such usage as Devagram, Hastigram, etc., are
secondary. Sree Krishna in commenting on this passage
thus explains the meaning of the expression Devgram:
Moreover, the expression cannot be used here in its primary
sense. The relation of one's ownership being excluded, the
possessive case affix (in Devas in the term Devagram)
figuratively means abandonment for them (the Godsputed
structure). Therefore, the expression is used in the sense of
a village which is the object of abandonment intended for
the Godisputed structure. This is the purport. According to
Savar Swami, the well-known commentator on Purba
Mimansa, Devagram and Devakhetra are figurative
expressions. What one is able to employ according to one's
desire is one's property. The Gods however do not employ a
village or land according to their use.
Page 39-Para 1.52. These discussions are not free from
obscurity but the following conclusions I think can be safely
drawn from them:-(1) According to these sages the deity or
idol is the owner of the dedicated property but in a
secondary sense. The ownership in its primary sense
connotes the capacity to enjoy and deal with the property at
one's pleasure. A deity cannot hold or enjoy property like a
man, hence the deity is not the owner in its primary sense.
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(2) Ownership is however attributed to the deity in a
secondary or ideal sense. This is a fiction (Upchaar) but not a
mere figure of speech, it is a legal fact; otherwise the deity
could not be described as owner even in the secondary
sense. (3) The fictitious ownership which is imputed to the
deity is determined by the expressed intentions of the
founder; the debutter property cannot be applied or used for
any purpose other than that indicated by the founder. The
deity as owner therefore represents nothing else but the
intentions of the founder. Although the discussions of the
Hindu Jurists are somewhat cryptic in their nature, it is clear
that they did appreciate the distinction between the spiritual
and legal aspects of an idol. From the spiritual standpoint
the idol might be to the devotee the very embodiment of
Supreme God but that is a matter beyond the reach of law
altogether. Neither God nor any supernatural being could be
a person in law. 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 and
the correct view is that in the capacity alone the dedicated
property vests in it.
Thus, the Hindu concept of deity is worship of his image. It is
an admitted case that deities were installed and are being worshiped.
The time of installation has been seen in another issue but the factum
is the same that the deities were available inside the structure and
the plaintiffs have sought the relief as a juristic person. The
defendants are not in a position to say that Pran Prathistha was not
performed.
92
Further I find that Svyambhu symbols of deities do not need
pratistha while pratistha of manmade symbols of deities can be
done by single mantra of the divine yajurved for following reasons:-
1. According to Shastric (Scriptural) injunctions Sri
Ramajanmasthan Sthandil, a Svayambhu Linga (Symbol)
brought into existence and established by the Lord of Universe
Sri Vishnu Himself as such in-spite of being decayed, or
damaged, or destroyed It shall forever remain sacred place of
Worship as it does not need purification or consecration or
change. Pratistha is required only in respect of man-made
Images/Idols/Symbols of Deities that can be done by chanting
single Mantra XXXI.1 or II.13 of the Holy Divine Sri Yajurved
(Vagasaneyee Samhita also known as Sri Shukla Yajurved ) .A
deity needs to be worshipped by providing all things which are
required for leading a healthy and excellent life.
2. Svayambhu i.e. Self-built or Self existent or Self-revealed
Lingas (symbols) of Devatas (Gods) or the Lingas (Symbols)
established by Gods structure, or by those versed in the highest
religious truths, or by Asuras, or by sages, or by remote
ancestors, or by those versed in the mantras need not to be
removed though decayed or even broken. Only decayed or
broken Pratisthita Images/Idols require to be replaced with new
one. In respect of renewal of the images Treatise on Hindu Law
celebrated Jurist Golapchandra Sarkar, Sastri reproduces the
Shastric injunction (Scriptural law) as follows:
Raghunandas Deva-Pratistha-Tantram, last paragraph
reads as follows:
8. Now (it is stated) the prescribed mode of Renewal of
Decayed Images. Bhagwan says I shall tell you briefly
93
the holy ordinance for renewing Decayed Images * * *
Whatever is the material and whatever size of the image
of Hari (or the God, the protector) that is to be renewed;
of the same material and of the same size, and image is
to be caused to be made; of the same size of the same
form (and of the same material), should be (the new
image) placed there; either on the second or on the third
day (the image of) Hari should be established; if, (it be)
established after that, even in the prescribed mode, there
would be blame or censure or sin; in this very mode the
linga or phallic symbol and the like (image) should be
thrown away; (and) another should be established, of the
same size (&c.) as already described, - Haya-Sirsha.
9. God said, -
I shall speak of the renewal in the prescribed mode of
lingas or phallic symbols decayed and the like &c * * *. (A
linga) established by Asuras, or by sages or by remote
ancestors or by those versed in the tantras should not be
removed even in the prescribed form, though decayed or
even broken.
(Agnipuranam Chapter 103 Poona Edition of 1900 AD.
p.143)
[There is a different reading of a part of this sloke noted
in the foot-note of the Poona Edition of this Puran as one
of the Anandashram series of sacred books: according to
which instead of or by remote ancestors or by those
versed in the tantras
the following should be substituted, namely].
Or by Gods or by those versed in the highest religious
truths.
10. Now Renewal of Decayed (images is considered);
that is to be performed when a linga and the like are
burnt or broken or removed (from its proper place). But
this is not to be performed with respect but a linga or the
like which is established by a Sinddha or one who has
become successful in the highest religious practice, or
which is anadi i.e. of which the commencement is not
known, or which has no commencement. But their
Mahabhisheka or the ceremony of great anointment
should be performed: - this is said by Tri-Vikrama
Nirnaya Sindhu Kamalakar Bhatta, Bombay Edition of
1900 p.264.
The author of the Dharma-Sindhu says as above in almost
the same words see Bombay Edition of 1988 p.234 of
that work.
[Treatise on Hindu Law by Golapchandra Sarkar, Sastri
(6
th
Edition, published by Easter Law House in 1927 at
p.745-748]
3. Alberuni who compiled his book India in or about 1030 A.D. on
94
page 121 of his book has written that the Hindus honour their
Idols on account of those who erected them, not on account of
the material of which they are, best example whereof is Linga
of sand erected by Rama. In his book on pages 117, 209, 306-
07 and 380 he has also narrated about the Lord Rama.
Relevant extract from page 121 of his book Alberunis India
Translated by Dr. Edward C. Sachau. Reprint 2007 of the 1
st
Edn. 1910 published Low Price Publications, Delhi reads as
follows:
The Hindus honour their idols on account of those
who erected them, not on account of the material
of which they are made. We have already
mentioned that the idol of Multan was of wood.
E.g. the linga which Rama erected when he had
finished the war with the demons was of sand.
Which he had heaped up with his own hand. But
then it became petrified all at once, since the
astrologically correct moment for the erecting of
the monument fell before the moment when the
workmen had finished the cutting of the stone
monument which Rama originally had ordered.
(ibid page 121)
4. According to the Hindus Divine Holy & Sacred Scriptures there
are two types of images one Svayambhu (self-existent or self-
revealed or self-built) and other Pratisthita (established or
consecrated). Where the Self-possessed Lord of Universe Sri
Vishnu has placed himself on earth for the benefit of mankind,
that is styled Svayambhu and it does not require Pratistha. As
at Ramajanamasthan the Lord of Universe Sri Vishnu appeared
and placed Himself on said sacred place said sacred place itself
became Svayambhu for the reason that invisible power of the
Almighty remained there which confers merit and salvation to
the devotees. Consecrated artificial man-made Lepya images
95
i.e. moulded figures of metal or clay; and Lekhyas i.e. all kinds
of pictorial images including chiselled figures of wood or stone
not made by moulds are called Pratisthita. . B. K. Mukherjee in
his book on Hindu Law referring authorities describes
Svayambhu and Pratisthita artificial Images as follows:
4.5 Images their descriptions
images, according to Hindu authorities are two kinds; first
is known as Svayambhu or self-existent, while the other is
Pratisthita or established. The Padmapuran says : The
image of Hari (God) prepared of stone, earth, wood,
metal, or the like and established according to the rights
laid down in Vedas, Smritis and tantras are called the
established;
where the self possessed Vishnu has placed himself on
earth in stone, or wood for the benefit of mankind, that is
styled the self re-built. Svayambhu or self-built image is
a product of nature, it is anadi or without any beginning
and the worshippers simply discover its existence. Such
image does not require consecration or Pratistha. All
artificial or man made images require consecration. An
image according to Matsyapuran may properly be made
of gold, silver, copper, iron, bronze or bell metal or any
kind of gem, stone, or wood, conch shell, crystal or eve
earth. Some persons worship images painted on wall or
canvas says the says the Britha Puran and some worship
the spheroidical stones known as Salgran. Generally
speaking, the puranic writers classified artificial images
under two heads; viz. (1) Lepya and (2) Lekhya. Lepya
images are moulded figures of metal or clay, while
Lekhyas denote all kinds of pectoral images including
chiselled figures of wood or stone not made by moulds.
[Hindu Law of Religious and Charitable Trusts of B. K.
Mukherjea 5
th
Edition, Published by Eastern Law House at
page 154.]
5. According to the Holy Scripture Sri Narsingh Puranam (62.7-14
) Pratistha of the Lord of Universe Sri Vishnu should be done
by chanting 1
st
Richa of the Purush Sukta of Shukla Yajurved
[i.e. Vagasaneyee Samhita Chapter XXXI] and be worshipped
dedicating prescribed offerings by chanting 2
nd
to 15
th
Richas of the Purush Sukta. And if worshipper so wish after
completion of worship he may by chanting 16
th
Richas of the
Purush Sukta pray to Sri Vishnu for going to his His own abode.
96
Above-mentioned verses of Sri Narsingh Puranam and Hindi
translation thereof reads as follows:
97
(Sri Narsingh Puranam 62.7-14 )
Be it mentioned herein that in the above Sri Narsingh Puranam
62.13 Sloke enumerates Pradakshina i.e. Parikrama
(circumbulation) as 14
th
means of reverential treatment of the
Deity and thereby makes it integral part of the religious
customs and rituals of service and worship of a Deity.
6. 1
st
Holy Spells of Purush Sukta of the Holy Devine Shukla
Yajurved [i.e. Vagasaneyee Samhita Chapter XXXI] prescribed
by the Holy Sri Narsingh Puranam for Pratistha of the Lord of
Universe Sri Vishnu reads as follows:
(ibid as translated by Swami Karpatriji and
published by Sri Radhakrishna Dhanuka Prakasan
Samsthanam, Edn. Vikram samvat 2048)
Simple English translation whereof reads as follows:
The Almighty God who hath infinite heads, infinite eyes;
infinite feet pervading the Earth on every side and
transgressing the universe installed Him in sanctum as
knower of inner region of hearts.
Be it mentioned herein in the Mimamsa Darshan as commented
in Sanskrit by Sri sabar Swami and in Hindi by Sri Yudhisthir
Mimamsak and Mahabhasya meaning of Sahasra has also been
given infinite as also one apart from thousand and
98
according to context one or other meaning is adopted.
7. Nitya Karma Puja Prakash has prescribed a
Mantra of Yajurved [i.e. Vagasaneyee Samhita Chapter
II.13] for Pratistha of Lord Ganesh. Relevant portion of the
said book reads as follows;
[Nitya Karma Puja Prakash published by Gita Press
Gorakhpur 32
nd
Edn. 2060 Vikram Samvat at page
244]
8. The Holy Sri Satpath-Brahman interpreting said Mantra II.13 of
the Holy Sri Shukla Yajurved [i.e. Vagasaneyee Samhita] says
99
that Pratistha of all Gods should be done by said Mantra. Be it
mentioned herein that the Holy Sri Satpath-Brahman being
Brahmn Part of Divine Sri Shukla Yajurved, interpreting Mantras
of said Vagasaneyee Samhita tells about application of those
Mantras in Yajnas (Holy Sacrifices). Said Mantra II.13 of the
Divine Sri Shukla Yajurved (Vagasaneyee Samhita) as well as
Sri Satpath-Brahman (I.7.4.22) with original texts and
translations thereof read as follows:
(ibid Hindi Translation of Padmbhushan Sripad Damodar
Satvalekar,1989 Edn. Published by Swayadhyay Mandal
pardi)
English translation of the above noted Hindi Translation reads
as follows:
May your mind Delight in the gushing (of the ) butter.
May Brihaspati spread (carry through) this sacrifice ! May
he restore the sacrifice uninjured. May all the Gods rejoice
here. Be established/seated here.
Sanskrit text of Sri Satpath-Brahman (I.7.4.22) as printed in Sri
Shukla Yajurvediya Satpath Brahman Vol. I on its page 150,
Edn. 1988 Published by Govindram Hasanand, Delhi 110006 is
reproduced as follows:
100
English translation of Sri Satpath-Brahman (I.7.4.22) as printed
in Volume 12 of the series The Sacred Books Of The east
under title The Satpath - Brahmana Part I on its page 215,
Edn. reprint 2001 Published by Motilal Banarasidass, Delhi
110007 is reproduced as follows:
(Sri Satpath-Brahman I.7.4.22)
9. 19
th
Holy Spells of Nasadiya Sukta of the Holy Devine Shukla
Yajurved [i.e. Vagasaneyee Samhita Chapter XXIII] is also widely
applied by the Knower of the Scriptures to invoke and establish
a deity. Said Mantra reads as follows:

English Translation of this Mantra based on Hindi Translation of
Padmbhushan Sripad Damodar Satvalekar,1989 Edn. Published
by Swayadhyay Mandal pardi reads as follows:
101
O, Lord of all beings we invoke Thee. O, Lord of beloved
one we invoke Thee. O, Lord of Wealth we invoke Thee. O
abode of all beings Thou are mine. O, Sustainer of Nature
let me know Thee well because Thee the sustainer of
Universe as embryo are Creator of All.
[Shukla Yajurved Chapter XXIII Mantra 19]
10. The vivified image is regained with necessaries and
luxuries of life in due succession changing of clothes, offering of
water, sweets as well as cooked and uncooked food, making to
sleep, sweeping of the temple, process of smearing, removal of
the previous days offerings of flowers, presentation of fresh
flowers and other practices are integral part of Idol-worship.
These worships in public temple in olden days were being
performed by Brahmins learned in Vedas & Agamas. B. K.
Mukherjea in his book on Hindu Law writes as follows:
4.7 Worship of the idol after a deity is installed it
should be worshipped daily according to Hindu
Shastras. The person founding a deity becomes
morally responsible for the worship of the deity even if
no property is dedicated to it. This responsibility is
always carried out by a pious Hindu either by personal
performance of the religious right or in the case of
Sudras by the employment of a Bramhin priest. The
daily worship of a sacred image including the sweeping
of the temple, the process of smearing, the removal of
the previous days offerings of flowers, the presentation
of fresh flowers, the reciprocal obligation of rice with
sweets and water and other practices. The deity in
shout is conceived of as leaving being and is treated in
the same way as the master of the house would be
treated by him humble servant. The daily routine of
live is gone through, with minute accuracy, the vivified
image is regained with 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.
[Hindu Law of Religious and Charitable Trusts of B. K.
Mukherjea 5
th
Edition, Published by Eastern Law House
at page 156.]
102
In view of the discussions, referred to above, it transpires that
images, idols are the symbols of Supreme Being. They are worshipped
as Supreme deity. In these circumstances Ram Janm Bhumi is also a
deity. Thus, plaintiff nos. 1 and 2 are deities and the averments made
in the written statement by defendant nos. 4 and 5 , contrary to the
averments of the plaint, are not tenable in accordance with the
provisions of Hindu Law, Hidu rituals and other Hindu sacred books.
Thus, I hold that plaintiff nos. 1 and 2 are deities. Issue no. 21 is
decided in favour of the plaintiffs and against the defendants no. 4
and 5.
ISSUE NOS. 26 & 27
26. Whether the suit is bad for want of notice under Section
80 C.P.C. as alleged by the defendants 4 and 5?
27. Whether the plea of suit being bad for want of notice
under Section 80 C.P.C. can be raised by defendants 4
and 5 ?
FINDINGS
Since these issues are inter related , they can conveniently be
decided at one place.
On behalf of defendant nos. 4 and 5 it has been urged that the
suit is bad for want of notice under Section 80 C.P.C. This plea has not
been raised on behalf of defendant nos. 7,8,9 and 10, who have not
filed any written statement nor have contested the suit. It is not the
case of defendant nos. 7 to 10 before this court that they wanted to
any opportunity to re-consider the legal position or to settle the claim
without any litigation. In this case the above defendants were
proforma parties. No effective relief was claimed against them . Thus,
103
the defendant no. 4 and 5 are not in a position to raise the plea that
the suit is bad for want of notice under Section 80 C.P.C. Notice under
Section 80 C.P.C. was to be given by the plaintiffs to defendant nos.
7 to 10, who have not contested the case and have not raised plea
that the suit is bad for want of notice. Thus, legally defendant nos. 4
and 5 cannot raise the plea on behalf of defendant nos. 7 to 10 that
the suit is bad for want of notice under Section 80 C.P.C. Further it
has been urged on behalf of the plaintiffs that no application was ever
made during the pendency of the suit by the defendant nos. 4 and 5
for the rejection of the plaint. Thus, it is not open for them at the
stage of conclusion of the suit to raise the plea that the plaint should
be rejected.
At best, names of defendant nos. 7 to 10 may be expunged,
which is also not required for the reason that in the plaint itself it
has been mentioned that in the construction of the temple, the
defendants no. 7 to 10 were not causing any hindrance. Para 36 of
the plaint is reproduced as under;
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 Communal.ists.
Thus, neither it is possible for defendant nos. 4 and 5 to raise
the plea that the suit is bad for want of notice under Section 80 C.P.C.
nor is barred by Section 80 C.P.C.
For the reasons referred to above, issue nos. 26 and 27 are
decided against defendant nos. 4 and 5.
104
ISSUE NO. 25
Whether the judgment and decree dated 30
th
March
1946, passed in suit no. 29 of 1945, is not binding upon
the plaintiffs as alleged by the plaintiffs ?
FINDINGS
On behalf of the plaintiffs, it is submitted that according to the
documents filed by defendant nos. 4,5 and 6 Babri mosque was a
Sunni Waqf. O.O.S.No. 29 of 1945 was filed in the Court of Civil Judge,
Faizabad by Shia Central Waqf Board against Sunni Central Waqf
Board of U.P. The judgment dated 30.3.1946 shows that the plaintiffs
were not arrayed as parties . The plaintiff no.2 was already in
existence but no care was taken to implead plaintiff no.2. It further
transpires from reading of the above judgment and also from the
plaint of O. S.No. 12 of 1961 I..e, O.O.S.No. 4 of 1989 that waqf of
Babri mosque was Sunni waqf and its Mutwallis were Shias. This
position seems to be in comprehensible in law in as much as a waqf
created by Shia would be a Shia waqf and could not be a Sunni
waqf. According to the Muslims, the mosque was built by Mir Baki and
he was a Shia and that he being waqif, his heirs were Mutwallis .
Shia Central Waqf Board U.P. did not agitate the case in any
appellate court as the suit was collusive and this judgment is not
binding on the plaintiffs. It appears from the reading of the judgement
in O.O.S.No. 29 of 1945 that it was not in the capacity of the
representative suit. Accordingly the judgment was not in rem but in
personam. In view of the provisions of Section 41 and 43 of the Indian
Evidence Act relevancy of the judgment can be seen. Under Section
41 the judgments passed are judgment in rem and they are having
105
binding effect on every body including the persons, who were not
arrayed as parties. Under Section 43 of the Evidence Act any other
judgment which is not judgment in rem is a judgment in personam
and is binding between the parties. Accordingly judgment in O.O.S.
No. 29 of 1945 was not judgment in rem., accordingly it is not covered
under Section 41 of the Evidence Act but is covered under Section
43 of the Evidence Act and is also binding between Shia and Sunni
Central Waqf board and not on the plaintiffs, who were not arrayed
as parties.
Issue no. 25 is decided in favour of the plaintiffs against the
defendants.
ISSUE NO. 29
Whether the plaintiffs are precluded from bringing the
present suit on account of dismissal of suit no. 57 of
1978 (Bhagwan Sri Ram Lala Vs. state) of the Court of
Munsif Sadar, Faizabad.
FINDINGS
It has been submitted on behalf of the defendants that in view
of the dismissal of Suit No.57 of 1978 Bhagwan Sri Ram Lala Vs State
the instant suit ( O.O.S.No. 5 of 1989) cannot be filed by the plaintiffs.
I have gone through the plaint of suit no. 57 of 1978 in which plaintiff
no.1 was Bhagwan Ram Lala and plaintiff no. 2 was Sia Raghav
Sharan.The suit was filed against State of U.P., Sunni Central Waqf
Board against K.K.Verma, Receiver . The plaintiffs claimed relief
against defendant no. 6 that Receiver be directed to hand over the
possession of the property in suit . The suit was dismissed. It further
transpires that defendant no. 6 was appointed in O.S. No. 12 of 1961
that is O.O.S.No. 4 of 1989 pending before this Court and accordingly
106
Sunni Waqf board urged that the Receiver could only be removed by
the Court which appointed him .Suni Waqf Board had also referred
that the property earlier was attached in a proceeding under Section
145 Cr.P.C. It was claimed that the suit be dismissed. Thereafter in
non-compliance of the Court's order the suit was dismissed. In the
plaint itself at para 3 it was mentioned that earlier the City
Magistrate attached the property in the proceedings under Section
145 Cr.P.C.Thus, even if for argument sake, it is presumed that
plaintiff no.1 filed the suit, it does not make difference for the reason
that plaintiff no. 2 was not the party in the earlier suit and Trust was
also not in existence.
The cause of action in O.O.S.No. 5 of 1989 is different. In this
case injunction has been sought against the defendants not to
interfere in raising the constructions of the new temple. Thus, the
earlier suit was filed for removing the Receiver which has been the
subject matter of O.O.S.No. 4 of 1989 and the same was dismissed.
Consequently, O.O.S.no. 57 of 1978 was barred by Section 9 C.P.C.
and it was not maintainable and cognizable because the Receiver
was appointed by the Court in O.O.S.No. 4 of 1989. Thus, the suit no.
57 of 1978 was not decided and the judgment is not binding on the
parties. Sunni waqf Board was defendant no.5 in O.O.S.No. 57 of
1978. They have filed the written statement to this effect that the
suit was not maintainable and without recording any finding on
merits the suit was dismissed for want of prosecution. Accordingly the
suit does not fall within the ambit of Section 11 C.P.C. In view of
Section 11 C.P.C. it further transpires that parties are not the
same. The subject matter is not the same. The Court of Munsif
Faizabad which entertained the suit no. 57 of 1978 was not
107
competent to try the suit no. 57 of 1978 which was subsequently
filed after filing suit no. 12 of 1961 ( O. O.S.No. 4 of 1989 which was
already pending.) Thus, in this case no decision was rendered by the
Court and accordingly Section 11 C.P.C. does not come in play. Thus,
the matter was heard and finally decided in the former suit (O.S.No.
57 of 1978). The matter is also not directly and substantially in
issue. Thus, in view of the provisions of Section 11 C.P.C. the plea as
raised by the defendants that the plaintiffs are precluded from
bringing the present suit is not acceptable and they have failed to
demonstrate before this Court the reasons that may preclude the
plaintiffs from filing the present suit. They have also failed to establish
that the case falls within the ambit of Section 11 C.P.C. Issue No. 29
is decided in favour of the plaintiffs and against the defendants.
ISSUE NO. 28
Whether the suit is bad for want of notice under Section
65 of the U.P. Muslim Waqfs Act, 1960 as alleged by
defendants 4 and 5 ? If so, its effect.
FINDINGS
On behalf of defendant no. 4 and 5 it has been submitted that
the suit is bad for want of notice under Section 65 of the Muslim Waqf
Act,1960. It has further been submitted that in the suit Waqf Board
has been arrayed as defendant. On behalf of defendant nos. 4 and 5
it has been urged that without giving notice under Section 65 of U.P.
Muslim waqf Act, 1960, the suit cannot be instituted. It is further
submitted that the plaintiff has not stated any where as to what was
the necessity to implead the Waqf Board as defendant without giving
any notice. Thus, the suit fails on this count.
108
On behalf of the plaintiffs it is submitted that the notice was
not required to be given and Waqf Board was formally joined in this
case . Waqf Board was the proforma defendants and no notice was
required to be given and at best the name can be expunged. I have
gone through the contents of the plaint and the relief claimed by the
plaintiff nos. 1 to 3. It transpires that the plaintiffs have not claimed
any relief against the Waqf Board. They have been arrayed as party
simply because of the fact that the plaintiffs have referred O.O.S.No.
4 of 1989 in the plaint. These suits have to be decided together.
Consequently, whatever has to be said by the Waqf Board has to be
said by the plaintiffs in O.O.S.No. 4 of 1989, the same can be led in
this case also. The object of the notice is not required under this
Section to give the Waqf Board a notice so that an opportunity may
be provided to re-consider the legal position and to make amendment
or to settle the claims even without litigation. The whole object of
serving notice is to give sufficient warning and the case proposed to
be instituted and matter can be settled by the Sunni Waqf Board.
The plaintiffs have filed the suit subsequent to the filing of the suit
by the plaintiff Sunni Waqf Board (OOS No. 4 of 1989) with the
assertion that he was compelled to file the suit because the deities,
who are minors, could not contest the case as they have not been
arrayed as party by Sunni Waqf Board. It was further submitted that
no valid Waqf was ever created or could have been created about
the Janmbhumi which is plaintiff no. 2 and is a deity. It was further
averred in the plaint that the deities are in possession of the property
in suit and they are not party to any of the litigation. In para 31 of the
plaint reference has been given to O.S No. 12 of 1961 filed by Sunni
Central Waqf Board. It was further mentioned in the plaint that on
109
account of delay in disposal of the case rights and duties are
affected. Initially the plaintiffs claimed the relief that opposite parties
be restrained not to interfere in the construction of the temple of
Ram Lala. Thus, in this case the deities have come forward through
next friend, alleging that Sunni Waqf Board was guilty of not arraying
them as a party. Issue No. 21 in OOS No. 4 of 1989 was framed and
was decided by this Court. Thus , looking to the case from all or any
angle ,it transpires that without any valid notification under Section
17 the Waqf could not be registered,accordingly ,even if waqf has
been arrayed as a party, the suit is not bad for want of any notice as
no valid waqf could be created about the property in suit in which
plaintiff no. 2 is a deity. Waqf Board was guilty in not arraying the
plaintiff nos. 1 and 2 as party in O.S.No. 12 of 1961 Thus, in this case
notice under Section 65 of Muslim Waqf Act was not required. Issue
No. 28 is decided in favour of the plaintiffs and against defendants no.
4 and 5.
ISSUE NO. 18
Whether the suit is barred by Section 34 of the the
Specific Relief Act as alleged in paragraph 42 of the
additional written statement of defendant no. 3 and also
as alleged in paragraph 47 of the written statement of
defendant no. 4 and paragraph 62 of the written
statement of defendant no. 5 ?
FINDINGS
It has been averred in additional written statement of defendant
no. 3 at para 42 and also as alleged in para 47 of the written
statement of defendant no. 4 and para 62 of the written statement of
defendant no. 5 that the suit is barred by Section 34 of the Specific
110
Relief Act. On behalf of defendant no. 3 it is submitted that Nirmohi
Akhara owns the property.
It is further submitted on behalf of defendant no. 3 that
plaintiffs no. 1 and 2 had never been the subject matter of any suit
in OOS No. 4 of 1989. It has further been submitted that as per
revenue record also the property does not belong to plaintiff nos. 1
and 2. The property has already been attached and OOS No. 4 of
1989 was filed by Sunni Waqf Board and for the same properties the
plaintiff no.3 cannot maintain the suit as it is barred by Section 34 of
the Specific Relief Act.
On behalf of the plaintiff it is submitted that plaintiff nos. 1 and
2 are juridical persons and they have right to file the suit and they
acquired the legal character. I have already referred while deciding
issue nos.1 and 2 that plaintiffs no. 1 and 2 are juridical persons and
plaintiff nos. 3 is the next friend, who can maintain the suit. Thus, the
plaintiff nos. 1 and 2 have acquired the legal character as they are
juridical persons and because of the legal character they can file the
suit. It has been urged on behalf of the plaintiff nos. 1 and 2 that if
there is cloud on the legal character of the parties against the law and
defendants are restraining the plaintiffs for execution of any legal
duty, the suit can be filed. In this case the plaintiffs have sought the
relief of declaration and injunction. Thus, the plaintiff nos. 1 and 2
have the legal character and they have also proved that they are
entitled to act as their rights are denied by the defendants. The
plaintiffs have established that their right subsist on the date of filing
of the suit . The defendants have failed to establish that the plaintiffs
are not entitled for declaration and they have no legal character or
right to hold property.
111
The plaintiffs have field the suit for declaration, claiming right
to property and further sought relief of injunction on the ground that
the defendants are denying the legal character or rights of the
plaintiffs over the property in suit. This is a case in which the
defendants deny a legal character and right of property of plaintiffs
no. 1 and 2 with rival claims. Thus, in view of the provisions of Section
34 of Specific Relief Act there is no bar in filing the present suit and
the defendants have failed to establish that the plaintiff is not
entitled to legal character or any right to hold the property . The
defendants have also failed to establish as to why the plaintiffs are
not entitled to maintain the suit and the plaintiffs have not filed suit
with clean hands. Thus, according to sound principles of law the
grant of declaration and injunction under Section 34 is discretionary.
Having regard to the circumstances of the case, the defendants
have failed to demonstrate that the suit is barred by Section 34 of
the Specific Relief Act. Issue no. 18 is decided in favour of the
plaintiffs and against the defendants.
ISSUE NOS. 3-a, 3- b, 3-c , 3-d & 4
3a. 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 on 30.4.92 in their statement under order 10
Rule 2 C.P.C. ?
3b. Whether the same idol was reinstalled at the same place
on a chabutra under the canopy.
3c. Whether the idols were placed at the disputed site on or
after 6.12.92 in violation of the courts order dated
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14.8.1989, 7.11.1989 and 15.11. 91 ?
3d. If the aforesaid issue is answered in the affirmative,
whether the idols so placed still acquire the status of a
deity?
Issue as it stands now'
4. Whether the idols in question had been in existence
under the Shikhar prior to 6.12.92 from time
immemorial as alleged in paragraph-44 of the additional
written statement of defendant no. 3 ?
FINDINGS
Since these issues are inter connected, they can conveniently
be decided at one place.
O.O.S. No. 4 of 1989 was filed in the year 1961 bearing R.S. No.
12 of 1961. This case was transferred for adjudication to High Court
by an order of a Division Bench of this Court and the Hon'ble Chief
Justice constituted the Full Bench which passed several orders
including the orders dated 14.8.1989, 7.11.1989 and 15.11.1991 and
directed to maintain status quo.
It has come in evidence and also this is the plaint case in para
27 that the idols in question were installed under the central dome
of the disputed building ( since demolished) in the intervening night
of 22/23 rd December,1949. In O.O.S. No. 4 of 1989 the plaintiffs have
also come out with this case that deities were installed under the
central dome in the intervening night of 22/23 rd December, 1949.
There is no dispute between the parties about the identity of the
idols which amount to the deity also. It is also admitted to the
plaintiffs in OOS No. 5 of 1989 that same deities were reinstalled at
same place and Chabutra under the canopy. In this regard oral
113
evidence was also adduced. O.P.W1 Param Hans Ram Chandra Das in
his statement has stated that the same idols which were installed
under the Central dome of the disputed building, which was
demolished on 6.12.1992, were installed at the same place on
Chabutra under the canopy on 6.12.1992 by certain worshippers. The
names of worshippers have not been stated in the cross-
examination and also no effort was made on behalf of the opposite
parties to ascertain the names of those worshippers. There is no other
evidence available on record to contradict or corroborate the
statement of O. P.W.1, referred to above. It further transpires from
the reading of the plaint that at para 27 of the plaint of OOS No. 5 of
1989 that the plaintiffs have come out with a case that the deities
were installed with ceremonies under the central dome of the
building with religious ceremonies and after purification of the place
by Akhand Path and Jap by thousand of persons of the area. Thus, it is
admitted to the plaintiffs of OO.S. No. 5 of 1989 that idols which were
placed earlier were again reinstalled as per the manner referred to
above. At para 35 J of the plaint it has been referred that at about 11
a.m. On 6.12.1992 after acquiring the debris at the same place ,i.e,
surrounded previously by Central dome on Chabutra the deities
were immediately re-installed and the place was enclosed by brick
boundary wall and canopy was erected for the protection of the deity
and Puja was continued as of yore.
In view of the aforesaid circumstances it transpires that deities
were placed definitely in violation of the orders of the Court dated
14.8. 1989,7.11.1989 and 15.11.1991 by the Karsevaks, who were
not the parties in any of the proceedings and plaintiffs of OOS No. 4
of 1989 have also not filed any application of contempt against them .
114
The plaintiffs of OOS No. 4 of 1989 have also not adduced any
evidence to rebut the assertion that the deities were re-installed on
the Chabutra after the demolition of the disputed structure on
6.12.1992. Thus, it is established from the record that the deities
were installed under the Central Dome in the intervening night of
22/23-12-1949 or at the early hours of 23.12.1949 and the same idols
were re-installed at the same place on the Chabutra under the
canopy on 6.12. 1992.
It further transpires from the record that deities which were
shifted from Ram Chabutra on 23.12.1949 were movables and the
movable deities were re-installed at the disputed site, that is, on
Chabutra under the canopy on 6.12.1992 to a place which was
earlier known as central dome of the disputed building. Thus, the
deities which were worshipped earlier and moved from one place to
another have to be presumed as deities and their divinity cannot be
presumed to be changed.
On behalf of defendant no. 3 it has been urged that attachment
which was made in the year 1949 is only in respect of the main
building of Garbh Grih carrying Shikhars wherein deity of Bhagwan
Sri Ram was installed by Nirmohi Akhara from the times beyond
human memory and since then is under the management and
possession of defendant no. 3. It appears not to be based on record.
Firstly, for the reasons that Sunni Waqf Board and others have filed
O.O.S. No. 4 of 1989 alleging that the mosque was attached and
deities were installed in the intervening night of 22/23/12/1949 and
secondly, there is overwhelming evidence to this effect that in the
disputed structure there was no deity installed at any point of time
prior to 22/23/12/1949.
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I have already perused the oral evidence of the witness D.W.3/
to D.W.3/ 20 on the basis of their testimony. They do not support the
case of defendant no. 3. Thus, the defendant no. 3 has failed to
establish that idols in question had been in existence under the
Shikhar prior to 22/23.12.1949. It further transpires from the written
statement of defendant no. 3 that he has set up different case in his
written statement and has further failed to establish his claim alleged
in para 44 before this Court.
Issue Nos. 3(a), 3(b), 3(c) 3(d) and 4 are decided accordingly in
favour of the plaintiffs and against the defendants.
ISSUE NO. 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 is as a mosque ?
FINDINGS
The plaintiffs have come out with a case that Ram Janm Bhumi
is a deity. It has been worshipped throughout from the time
immemorial and the place belongs to the deity. No valid Waqf can
be created by Muslims as they were not owners of the property in
suit and trespassed over the property. Accordingly no title could vest
in any body except the deities at Ram Janam Bhumi and no valid
Waqf could be created about it. The attention of this Court was drawn
on following facts and law by Sri M.M. Pandey Advocate ;
Classification as SUNNI Wakf/Mosque and SHIA Wakf/Mosque:
Statutory classification of Sunni & Shia Wakf is set out in
U.P.Wakfs Act 13 0f 1936, Section 4(3)(a), to be decided
principally on the basis of contents of the deed of Wakf.
Section 6(2)(a) of U.P.Muslim Wakfs Act 1960 also speaks of
116
Shia Wakfs & Sunni Wakfs, and the Proviso thereof says that
'clear indications in the recital of the deed of Wakf as to the
sect to which it pertains' shall be the basis of classification.
Both Wakf Acts of 1936 & 1960 carry significant provisions that
anything required or permitted by the Act to be done in
respect of Shia or Sunni Wakfs shall be done by the Shia
Central Board of Wakf or Sunni Central Board of Wakf, as the
case may be. For the purposes of our case, Babri Masjid Wakf
(besides being Un-Islamic) is Shia Wakf, hence Sunni Central
Board of Wakf is not be entitled to file/maintain OOS 4 of 1989.
If it is held in these suits that Babri Masjid was a Shia Wakf (if
at all it was a valid Wakf), then OOS 4 of 1989 must fail
because: (1) Plaintiff Sunni Central Board of Wakf would have
no locus standi, (2) rest of the Plaintiffs have not sued for
enforcement of their right, if any, of worship (3) and cannot
seek relief (a) of Declaration or (b) & (c) of possession because
those rights belong only to Mutawalli and none of them is
Mutawalli. The Sunni Central Board of Wakf cannot be said to
be a "Muslim Person having a right of worship" while all other
functions which belong to it under the Wakf Act of 1960 (in
force when OOS 4 of 1989 was filed) could be enforced by it
only if the Babri Masjid could be held to be Sunni Wakf.There is
no deed of Wakf relating to Babri Masjid; hence its nature shall
have to be determined on the basis of evidence. To establish
Shia or Sunni sect of a Wakf, it will be necessary for the parties
to lead evidence: 2000 SC 1751, A.P.State Wakf Board
Hyderabad Vs. A.I.Shia Conference. The Civil Judge had
recorded at page 7 of the Judgment dt. 30.4.1946 mentioned
in Para 88 below, that "It was also common ground between
the Counsel of both sides that the determining factor whether
the Mosque in suit was a Shia or Sunni Wakf would be the
religion of its founder as neither Wakf Act 13 of 1936 nor the
Muslim Law laid down any distinction between the two" It
has been held in 1957 SC 882, U.O.I Vs. T.R.Verma that the
statement of a Court, recorded in a judgment, is generally
taken to be correct. This admission is binding upon Sunni Waqf
Board in these cases; it can, therefore, be safely held that the
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Sect of Babri Mosque will depend upon the fact whether it was
constructed by Mir Baqi or by Babar.
It has been held in 1988 All 1, Shah Abdul Bagi & Others
Vs. State of U.P.& Others that Members of any sect of Muslim
Community can file a suit for enforcement of their right to
Worship in the Mosque of the other sect; but that would be a
suit only for worship, and not for possession which belongs only
to Mutawalli. No Mutawalli is a Plaintiff, and the Sunni Board
cannot be said to be worshipper.
It is further urged by Sunni Waqf Board that certain
Reports of the Wakf Commissioner under U.P.Wakf Act of 1936
are binding in these suits to establish that disputed structure is
Babri Majid built by Babar and made Wakf for all Muslims. The
Act, therefore, needs a close examination. The Preamble aims
at providing better governance and administration of certain
classes of Wakfs and supervision of Mutawalli's management. S.
3(1) does not create any 'new' class of Wakf and recognises
only those known to the Mahommedan Law; the Statement of
Objects & Reasons also says so and addisputed structure that
the Act "is not intended to deprive the Mutawallis of any
authority lawfully vested in them, nor it aims at defining all the
powers, duties and liabilities of the Mutawallis" S. 4(1)
provides for appointment of a District Commissioner of Wakf
"for the purpose of making survey of all wakfs". Procedural
powers of Civil Court are conferred on the Commissiioner for
summoning witnesses, production of documents, local
inspection/investigation u/s 4(4) while making inquiries, but
there are no guidelines how to 'initiate' an inquiry, what notices
are required to be issued and to whom. S. 4(3) confers power
on him to make 'such inquiries as he consider necessary'; there
is no guideline for the manner in which he should proceed. This
seems to be 'arbitrary' and violates the Constitutional
requirement of fairness. The word 'necessary' will make Wakf
Commissioner's discretion to be objective and open to judicial
review. The Act does not provide for framing Rules of procedure
for the Wakf Commissioner to observe before initiating an
inquiry. If on particular facts or situation, Notice to a particular
118
person is essential in the interests of justice and fairness, the
Wakf Commissioner cannot plead that he had unrestricted
discretion whether or not to issue Notice; in law, every fair
procedure is permissible unless specifically probited. The Act
does not prohibit the Wakf Commissioner to issue notices for
giving opportunity to persons interested while conducting the
inquiry. The proceeding before the Wakf Commissioner is quasi
judicial as held in the case of Board of Muslim Wakfs, Rajasthan
Vs. Radha Kishen (1979)2 SCC 468 (para 25). Further the SC
has held in paras 37 to 39 that where a stranger who is a non -
muslim is in possession of a certain property, his right, title
and interest therein cannot be put to jeopardy merely because
the property is included in the list prepared by the Wakf
Commissioner under the U.P. Wakf Act. Although this decision
concerns Section 6(1) of the Wakf Act of 1960, the SC has
observed in para 35 that that Section "is based on Sub-section
(2) of Section 5 of U.P. Muslim Wakf Act of 1936". This
distinguishes the decision from that in 1959 SC 198, Sirajul Haq
Khan Vs Sunni Central Board of Wakf where both Plaintiff and
Defendants were Muslims. Thus Hindus, Nirmohi Akhara and
any of the Defdts in OOS 4 of 1989, cannot be treated to be a
'person interested in a wakf' u/s 5(2) of the Wakf Act of 1936. It
will also be appreciated that if Nirmohi Akhar & others were to
be treated to be 'person interested in a wakf', it was incumbent
upon the Wakf Commissioner to issue notices at that very time
before deciding the issue. Even if it be treated to be
administrative, an opportunity of hearing ought to have been
given to Nirmohi Akhara & Hindu Community as held, after
considering several decisions of Supreme Court, in the case of
Muzaffar Hussain Vs. State of U.P, 1982 Allahabad Law Journal
909 (DB).
Wakf Commissioner submits his report of inquiry to State
Government u/s 4(5). The State Govt. has to 'forward a copy' of
the report to Shia as well as Sunni Board of Wakf u/s 5(1) and
commanding the Board, as soon as possible, to 'notify in the
Gazette the Wakfs relating to the particular sect to which,
according to such report, the provisions of this Act apply'. This
119
signfies that Shia & Sunni Board are required to publish notices,
in the Gazette, of only those Wakfs which relate respectively to
Shia and Sunni Wakfs; further, only the particulars of the Wakf,
without the report, are required to be published. Mere
publication of the particulars of Wakf without the report cannot
constitute notice of Wakf Commissioner's finding/report to
Public, much less to any particular individual.
Over and above the procedure contained in Ss 4 & 5 for
the Wakf Commisioner in making survey and preparing lists of
Wakfs and their publication by concerned Wakf Board, u/S. 38
authorises the Wakf Board concerned also to register a Wakf at
its Office. This registration may be made on an application by
Mutwalli under sub-section (2), or by wakif, his descendants,
beneficiary or any Muslim of the sect under sub-section (3) or
by 'any person other than the person holding possession' of
wakf property under sub-section (6). In an application under
sub-section (6), the Wakf Board is required to give notice of the
application to the person in possession and hear him. The Board
will make an inquiry and pass final orders. The question is that
since the Act specifically provides for issue of notice by Wakf
Board to a person in possession of wakf property (whoever he
may be even a stranger), why no provision is made for Wakf
Commissioner to issue similar notice to person in possession for
the purpose of inquiry u/ss 4 & 5? An essential distinction is
that while Wakf Commissioner is an officer of the State, the
Wakf Board is not; hence while Wakf Commissioner may be
presumed to act in a fair and just manner, the Wakf Board may
not be presumed so to act, hence specific procedural
methodology is prescribed for it in the matter of deciding a
matter. As mentioned above, the proceedings before the Wakf
Commissioner are quasi-judicial. 'Natural justice' would require
such notice to be given to person in possession; failure to do so
would render Wakf Commissioner's findings and list of Wakfs to
be ineffective against strangers. In this case, Wakf
Commissioner did not issue notice to Nirmohi Akhara who were
admittedly in possession of Eastern half of the platform of
disputed structure itself as settled by the British Administration
120
in 1885, in addition to Ram Chabutra, Sita Rasoi Chabutra and
other portions of DA within the campus of disputed structure.
Admittedly, in 1934 during Hindu-Muslim riots, Hindus had
demolished certain portions of disputed structure, thereby
exerting their rights over the property to the knowledge of
everyone concerned with disputed structure. The Govt. of U.P.
even imposed punitive fine on Hindus for demolishing portions
of disputed structure which was repaired by the Govt. Thus the
Hindu public in general (in addition to Nirmohi Akhara) was
interested in disputed structure, and a general public notice for
Hindu worshippers too was called for. None was given, hence
the entire proceeding of the Wakf Commissioner, declaring
disputed structure to be Sunni Wakf, was illegal.
Then follows the provision which is most important for the
purposes of these cases: S. 5(2) and 5(3). According to S. 5(2),
the Mutawalli of a Wakf, or any person interested in a Wakf may
bring a suit in a Civil Court for a declaration that any
transaction held by the Commissioner of Wakfs to be Wakf is
not Wakf, but no such suit by a person interested in the Wakf
shall be instituted "after more than one year of the notification
referred to in subclause (1)". Sub-section (3) provides that
subject to the final result of such suit "the report of the
Commissioner of Wakfs shall be final and conclusive".
Subsection (4) commands that the Commissioner shall not be
made a Defendant to the suit and no suit shall be instituted
against him for anything done by him in good faith under colour
of this Act. This bar cannot be made applicable to Plaintiffs of
OOS 5 of 1989. Firstly, there is no valid Wakf of disputed
structure. Secondly, the Plaintiffs were neither Parties to the
proceedings before, nor were given an opportunity by Wakf
Commissioner to contest the claim of declaration of disputed
structure to be Wakf. Thirdly, neither Nirmohi Akhara, who were
admittedly in possession of almost half portion of Platform
(Chabutra) of disputed structure lying towards East of a grilled
partition wall erected by British administration in 1855 in
addition to considerable portions of campus of disputed
structure, including Ram Chabutra, was given notice of the
121
proceedings, nor Hindu devotees/community were given
general notice although since 1934 riots they were admittedly
asserting rights over it. If the requirements of Section 5 of the
Wakf Act of 1936 applied to Nirmohi Akhara/Hindu devotees on
the ground that they were 'persons interested in the wakf', then
that was all the more reason for the Wakf Commissioner to have
given notice to these persons. The action and decision of Wakf
Commissioner, or by Sunni Central Board of Wakf on its basis,
therefore, could not be binding on Plaintiffs, Nirmohi Akhara or
Hindu devotes/community.
Facts regarding action taken under U.P.Muslim Wakf Act
1936 may now be considered. Ext. A4 (filed by Muslim Defdts 1
to 5 in OOS 1 of 1989) is report dt. 16.9.1938 of Mohd Owais,
District Wakf Commissioner Faizabad addressed and submitted
to Chief Commissioner of Wakfs, U.P., and Ext. A5 is report dt.
8.2.1941 of A. Majeed, District Wakf Commissioner. Ext. A5
records that Ext A4 was returned in January 1939 to District
Wakf Commissioner because before action thereon could be
taken, the post of Chief Commissioner of Wakfs had been
terminated. There is no evidence to show what action the Govt.
took before 'returning' the report to Wakf Commissioner and
what the latter was expected to do further. Thus, Ext. A4
became a 'dead letter'. Ext. A4 mentions that vide Cl (e) of WS
of Syed Mohd Zaki, the Mutawalli, to which Flag 1C2 was
attached, 'it appears that in 935 AH, Emperor Babar built this
mosque and appointed one Syed Abdul Baqi as Mutawalli and
Khatib of the Mosque'. So, the source of this inference of the
Wakf Commissioner was Flag 1C2 to WS of Mohd Zaki; but that
document, which was the primary evidence of those facts, has
not been filed by Sunni Waqf Board, hence the basis of that
finding is not established here. The report further mentions that
the Wakf Commissioner had heard that Mohd Zaki was an
opium addict and the Mosque had not been kept in proper
repairs; this indicates a probability that the Mutawall was not
taking due care of the affairs of the Mosque. In any case, Ext A4
stood rejected.
Neither Ext. A5, nor the record shows how A. Majeed, the
122
new Wakf Commissioner, opened and proceeded with the
inquiry; it is plain enough that inquiry by him should have been
de novo. In the first paragraph of his report, he mentions that
he made 'further inquiries and examined the pesh-namaz who
filed certain papers'; but he has not mentioned a word about
pesh-namaz's papers. In the same paragraph, he recorded: "I
entirely agree with the findings of my predecessor and I submit
my report". Indeed, A. Majeed has basically reproduced the
findings of Mohd Owais verbatim, including the final
recommendation; the only change is addition of substance of
statement of Abdul Ghaffar, the pesh-namaz. Ext A5 therefore
suffers from the vice of non-application of mind. Certain
interesting features of the statement of Abdul Ghaffar,
mentioned in the report, are significant. Firstly, having admitted
that Mohd Zaki, the Mutawalli, was Shia, he added that the
'ancestors of Mohd Zaki were Sunnis who later on converted to
Shia'. The Civil Judge held in 1945-suit of Shia Central Board
against Sunni Central Board and held that Abdul Baqi was Shia.
This means that some descendant of Abdul Baqi must have
converted to Sunni and again some later descendant must have
converted to Shia so that Mohd Zaki could be Shia. Prima facie,
this is highly improbale, specially when Mohd Zaki was not
given an opportunity by the Wakf Commissioner to meet that
allegation. Secondly, Abdul Ghaffar admitted that 'he did not
receive his pay during the last 11 years. In 1936, the Mutawalli
executed a pronote promising to pay the arrear of pay, by
instalments, but up to this time nothing actually was done.' The
bias of Abdul Ghaffar aginst Mohd Zaki is obvious. The
proceeding before the Wakf Commissioner is quasi judicial as
held in the case of Board of Muslim Wakfs, Rajasthan Vs. Radha
Kishen (1979)2 SCC 468 (para 25), and even if it be treated to
be administrative, notice of hearing to affected persons was
absolutely essential as indicated above in para 81. The entire
proceeding leading to Ext. A5, thus, also stands vitiated.
Further it is apparent from the Notification (following Ext
A5) of entry of Babri Masjid at Serial No. 26 of Faizabad-Wakfs,
that no mention of the particulars or details of disputed
123
structure has been made in the notification-column meant for
the purpose; the column has been left blank. Thus, the
Notification fails to establish the identity of disputed structure
on its own. That omission could have been deliberate because
Nirmohi Akhara and Hindus had been in possession not only of
substantial portion of DA (the Campus inside the boundaries)
but also the Eastern part of the Chabutra which had been part
of disputed structure.
Next are the proceedings of Civil Judge in a suit between
Shia & Sunni Central Boards of Wakf. It is necessary to consider
findings and Judgment dt. 30.4.1946, Ext. 20 in OOS 4 of 1989
(also Ext A42 in OOS 1 of 1989), by Civil Judge Faizabad in R.S.
NO. 29 of 1945; the suit was filed by Shia Central Board of Wakf
against Sunni Central Board of Wakf (Plaintiff in OOS 4 of 1989).
Shia Board claimed a right to manage disputed structure on the
ground that disputed structure was a Shia Wakf because the
Mosque was built by Abdul Baqi who was a Shia; Sunni Waqf
Board contested the claim on the ground that it was Sunni Wakf
because the Mosque was built by Babar who was a Sunni. The
Civil Judge made a local inspection of disputed structure, Ext 53
in OOS 4 of 1989, in presence of Counsel for both Parties on
26.3.1945. The Judge recorded that the 1st Inscription fixed
near the pulpit bore the construction year to be 923 Hijri, while
the 2nd Inscription at the Central arch facing courtyard
mentioned the year to be 935 Hijri. He also recorded that both
Parties admitted that the 1st inscription 'was replaced anew in
place of the original tablet which was demolished during the
communal riots in 1934'. Obviously the 1st Inscription seen by
the Civil Judge was not the original one; indeed the erroneous
year 923 Hijri therein is inherent proof of that fact. The
numberings of the Inscriptions correspond to Buchanan's
numbering, but Buchanan's rendering was from the original,
hence deserves greater weight than the one seen by the Civil
Judge; the year in Buchanan's rendering is 935 Hijri, which is
correct. The Civil Judge held (at pages 11-12) that inscriptions
'are inconclusive'. He observed in the Judgment that the 2nd
inscription does not say that the Mosque was built by the order
124
of Babar and only refers to the reign of Babar, whereas the 1st
inscription 'clearly supports the theory that Babar had ordered
the building of the Mosque as stated in the Gazetteer and
settlement report'. On these premises, the Civil Judge held that
the 'Mosque was founded by Babar and not by Abdul Baqi'. The
Civil Judge clearly considered the mentioned 'order' to be
enough proof of its erection by Babar. This is unacceptable for
reasons recorded. It is also significant that at page 10 he
recorded that the Gazetteer (on which he placed reliance)
mentioned that Babar 'destroyed the Janmasthan Temple and
its site built a Mosque using largely the materials of the old
structure'. As shown earlier in these Arguments, erection of the
Mosque by demolishing a Temple at its site is un-Islamic, hence
the disputed structure is illegal abinitio and non-est (See Para
52), but this aspect did not figure before the Civil Judge.
The Civil Judge further held that Babar was Sunni while
Mir Baqi was a Shia, hence the Mosque was a Sunni Wakf on the
position agreed by both Parties that the Sect of the Wakf of
Mosque depending structure upon the Sect of the Founder (vide
page 7 of the Judgment). The SC has held that facts recorded by
the Court (as admitted by the Parties there) must be held to be
correctly recorded: 1957 SC 882, U.O.I Vs. T.R.Verma. The
Hindu Parties case, here, is that the Mosque was built by Mir
Baqi who was a Shia, hence the Sect of disputed structure is a
Shia Wakf. The decision of the Civil Judge is that disputed
structure was erected by Mir Baqi but under orders of Babar. As
already pointed out, 'order' to Mir Baqi was only Babar's
'consent' and 'approval' to erect the Mosque as pleaded last by
Sunni Waqf Board referred to above; the so-called 'order' could
not constitute Wakf of the Mosque by Babar. The view of the
Civil Judge, thus, that disputed structure is a Sunni Wakf is
incorrect (without prejudice to the position that the Mosque was
un-Islamic, hence ab initio illegal & non-est).
The contention of Sunni Waqf Board, further is that the
decision of Civil Judge that disputed structure was founded by
Babar, hence it is Sunni Wakf, is binding in these suits. It seems
that the decision is binding between Shia & Sunni Central Board
125
of Wakf, but is not binding upon the Hindu Parties to these suits.
It must be appreciated that the Suit between the Shia & Sunni
Central Boardof Wakf was instituted in a Civil Court under
Section 9 CPC and not under any special Statute like Wakf Acts.
In 1945, the relevant Wakf Act in force was UP Muslim Wakfs Act
XIII of 1936; that Act did not provide for a special adjudicatory
body to settle disputes relating to Wakfs. In contrast to 1936
Act, U.P.Muslim Wakfs Act XVI of 1960 provided for a Tribunal to
settle disputes relating to Wakfs; Chapter IX provided for
"Tribunals Their Constitution, Powers and Functions". Section
75 lays down 'Bar to suits in matter to be decided by Tribunals'
and says that 'No person shall institute any suit or other
proceeding in any Civil Court with respect to any dispute or
question or matter which is required or permitted under this Act
to be referred to a Tribunal for adjudication'. There is no similar
provision in Wakf Act of 1936. The decision dt. 30.3.1946 by
Civil Judge Faizabad in the Suit between Shia Central Board of
Wakf and Sunni Central Board of Wakf, therefore, has no
binding effect upon persons who were not Parties to that suit,
hence it is not binding upon Plaintiffs of OOS 1 of 1989, 3 of
1989 and 5 of 1989.
It is also important that Civil Judge Faizabad has held in
these very suits while deciding Issue No 17 of OOS 4 of 1989
that the Notification published by the Wakf Commissioner under
the Wakf Act of 1936 is invalid. That finding (dt. 21.4.1996) is
final against Sunni Waqf Board. An attempt to get over the
finding has been made by framing Issue No 18 to consider the
effect of Supreme Court Judgment in the case of Ghulam Abbas
& others Vs. State of U.P. & others, 1981 SC 2198 on the finding
of the Civil Judge. It may be mentioned that the Civil Judge had
also answered Issues No. 5(a) and 5(c) against Sunni Waqf
Board. It does not appear to be open to Sunni Waqf Board to
challenge these findings of the Civil Judge in the present suits;
they will be open only before SC in Appeal. The High Court is
not exercising any Appellate jurisdiction nor can enter upon a
Review of the findings.
The decision in Ghulam Abbas's case may be considered.
126
In respect of Doshipura Mosque and other properties, the Wakf
Commissoner, after survey & inquiry, made a report dt
28/31.10.1938 u/s 4(5) of Wakf Act 1936 with Appendix VIII of
Sunni Wakfs, excluding the Mosque, and Appendix X of Shia
Wakfs including the Mosque; copies of the report were sent to
both Shia & Sunni Boards of Wakf. On receipt of the report, Shia
Board published Notification dt. 15.1.1954 of Appendix X in
Gazette dt. 23.1.1954 u/s 5(1). Neither Sunni Board nor any
person interested in the Wakf filed suit u/s 5(2), within the
period prescribed, to challenge the omission of disputed
properties from Appendix VIII. However, Sunni Board published
Notification dt. 26.2.1944, u/s 5(1), including disputed
properties, obviously not based on Appendix VIII (which had
excluded the properties). Supreme Court held Sunni Board's
Notification dt. 26.2.1944 to be invalid on the ground that it was
not based on Appendix VIII while S.5(1) required the Notification
to be 'in accordance with' Commissioner's report and that Wakf
Commisioner's report with Appendix X became 'final and
conclusive' in favour of Shia Wakf.
When Wakf Act of 1960 came into force, the Sunni Board
made 'Registration' of some of the disputed properties as Sunni
Wakf u/s 29 of 1960-Act. Supreme Court held that any Survey
report made and Registration of Wakf thereon was "futile and of
no avail" because Registration of Wakf under 1936-Act had
been kept alive by 1960-Act and the latter Act permitted
Registration of only those Wakfs which were 'other than' those
already Registered under 1936-Act. The claim of Shia
community was upheld and Sunni Community were restrained
permanently from interfering with exercise of rights by Shias.
Now, there is absolutely nothing in common between Ghulam
Abbas' case and the present case.
Since there was not valid notification under the Waqf Act before
registration, the procedure was not adopted in the manner prescribed
under the law.
127
In the Premier Automobiles Ltd. Vs. Kamlakar Shantaram
Wadke and others, AIR 1975 SC 2238, Apex Court at paragraph
No. 10 held that where Act creates an obligation, it should be
enforced in a specified manner;
Para-10 In Doe V. Bridges, (1831) 1 B & Ad. 847 at page 859 are
the famous and oft quoted words of Lord Tenterden, C.J. saying:
Where an Act creates an obligation and enforces the
performance in a specified manner, we take it to be a general rule
that performance cannot be enforced in any other manner.
This passage was cited with approval by the Earl of HalSunni
Waqf Boardury, L.C. In Pasmore V. The Oswaldtwistle Urban Disteict
Council 1898, AC 387 and by Lord Simonds at ;. 407 in the case of
Cutler V. Wands Stadium Ltd. 1949 AC 398.
Thus, in view of the decision of the Hon'ble Apex Court, it
transpires that United Provinces Muslim Waqf Act, 1936 is an Act,
which creates an obligation and enforces the performance in a
specified manner. Thus in view of Section 5 of the aforesaid Act, it
was necessary to make a publication before making any registration.
Thus, it was incumbent upon the authorities to act in accordance with
law and should have performed the duties in the manner provided
under the law.
Thus, in this case the procedure as contemplated under Section
5(1) of Waqf Act was not complied with and the registration was made
ignoring the provision, accordingly registration has no significance
under the law. It may further be clarified that it makes no difference
whether the registration was challenged or not. When it is apparent
that the obligation to enforce the Act was not performed in the
manner provided under the law by complying the provisions of
128
Section 5 by the Board, in that event the registration has no effect
and it does not bind the parties. It may further be clarified that once
the Board had tried to get the Waqf registered and after enquiry the
registration was not completed, it makes no difference whether two
other modes were applied or not for registration. Other modes of
registration could have been applied in accordance with law only. It is
not the case where it has been urged that besides two other modes,
the 3
rd
mode was adopted. The sole mode that was adopted to
register this Waqf as Sunni Waqf by holding an enquiry and without
making any publication. Thus in view of the decision of the Apex
Court, the registration is not in accordance with law.
On the contrary defendant nos. 4 and 5 have come out with a
case that Waqf was registered . In this context I find that on
21.4.1966 learned Civil Judge has already decided issue no. 17 that
no valid notification was made in respect of the property in dispute.
Thus, without any valid notification the requirement of law was not
complied with. Thus, in this case notification was not done which was
required to be done under the Waqf Act before registration. Without
any notification compliance of law shall not be presumed.
It further transpires that in O.O.S. No. 4 of 1989 the issue
relating to waqf was also taken into consideration and attention of
this court was drawn to the provisions of Section 87 of the Waqf
Act,1985.
There is a bar of Section 87 of the Waqf Act to the
enforcement of right on behalf of unregistered waqf which has been
dealt while deciding issue nos. 5-F and 5-C of O.O.S. No. 4 of 1989 .
Since the registration of the waqf was made in contravention of the
provisions of Waqf Act, 1936 and there was no valid notification,
129
accordingly the submissions of learned counsel for the plaintiffs are
in accordance with law that no valid Waqf was created or could be
created regarding the property of deities or about the deities as Ram
Janm Bhumi, plaintiff no. 2 itself is a deity. Thus, no valid waqf could
be created or was ever created with respect to the disputed property.
Issue no. 11 is decided accordingly against the defendants and in
favour of the plaintiffs.
ISSUE NO. 13
Whether the suit is barred by limitation ?
FINDINGS
The instant suit is for declaration and injunction. Plaintiffs no.
1 and 2, namely, Bhagwan Sri Ram Virajman at Sri Ram Janma
Bhumi, Ayodhya also called Sri Ram Lala Virajman and the Asthan Sri
Ram Janm Bhumi, Ayodhya with other idols and places of worship
situate there have claimed themselves as juridical persons with
Bhagwan Sri Ram as the presiding deity of the place. Plaintiff no. 3 is
a Vaishnva Hindu worshipper and seeks to represent the deity and
the Asthan as a next friend.
It has been urged on behalf of plaintiffs no. 1 and 2 that
they are the deities and it has been urged on behalf of the plaintiffs
that it is settled proposition of law that deities are like infant and they
are not subject to limitation laws. The attention of this Court was
drawn by Sri Ravi Shanker Advocate on this aspect while arguing in
connected cases. Sri Ravi Shanker Advocate has relied upon
following case;
(i) AIR 1925 Privy Council, Page 139, at Page 140
Pramatha Nath Mullick Vs. Pradyumna Kumar Mullick: One of
130
the questions emerging at this point, is as to the nature of such an
idol and the services due thereto. A Hindu idol is, according to long
established authority, founded upon the religious customs of the
Hindus, and the recognition thereof by Courts of Law, a juristic entity."
It has a juridical status with the power of suing and being sued. Its
interests are attended to by the person who has the deity in his
charge and who is in law its manager with all the powers which would,
in such circumstances, on analogy, be given to the manager of the
estate of an infant heir. It is unnecessary to quota the authorities; for
this doctrine, thus simply stated, is firmly established.
(ii) AIR 1937 Calcutta, 338 (Division Bench) Bimal
Krishna Ghosh v. Shebaits of Sree Sree Ishwar Radha
Ballav Jiu at Page 340 - This observation is entitled to
the highest respect and it is necessary, therefore, to look
into the facts of the case closely to find out what their
Lordships actually meant. It is clear from the facts set out in
that judgment that in this case there was no gift of the idols
but the property was given to one Udoy who was made a
trustee in the legal sense of the word and upon whom were
cast certain duties both religious and secular in their nature.
He was to perform the worship of a certain idol with the
income of a particular property and the remainder of the
income was given to three people whose names were given
in the will. In a case like this, where a private trust was
created not of a purely religious character and the
ownership of the property was vested in the trustee in the
legal sense of the word, the Court could not possibly frame
131
a scheme for the administration of the trust estate. In a
religious endowment, however, where the deity who is a
perpetual infant is the legal owner of the property and the
Shebaits occupy the position of managers or guardians, the
position is different. In Manohar Mookerjee v. Peary Mohan
Mookerjee AIR 1920 Cal 210, it was held by Asutosh
Mookerjee, J. sitting with Panton, J. that:
In respect of a Debutter in this country, the founder or his heirs
may invoke the assistance of a judicial tribunal for the proper
administration thereof on the allegation that the trusts are not
properly performed.
6. Mookerjee, J. invoked the analogy of the rule of
English law according to which in case of a charitable
corporation where the founder was a private person he and
his heirs became visitors in law and in case such heirs were
extinct or were incompetent the visitatorial powers devolved
on the crown. It is true that in England such trusts are
regarded as matters of public concern and the Attorney-
General who represents the Crown takes proceedings on his
behalf for protection of these charities: vide Att.Gen. v.
James Brown (1816) 1 Swans 265 at p. 291. In India, the
Crown is the constitutional protector of all infants and as the
deity occupies in law the position of an infant, the Shebaits
who represent the deity are entitled to seek the assistance
of the Court in case of mismanagement or
maladministration of the deity's estate and to have a proper
scheme for management framed which would end the
132
disputes amongst the guardians and prevent the debutter
estate from being wasted or ruined. This principle was
reiterated in Rabindra Nath v. Chandi Charan :
AIR1932Cal117 . The Privy Council itself directed the
framing of a scheme, in case of a private debutter in
Pramatha Nath v. Pradhyumna Kumar Mullick and the case
was remanded to the trial Court expressly for that purpose.
The same directions were given by this Court in the case in
Prasad Das Pal v. Jagannath Pal : AIR1933Cal519 which was
also a case of private debutter and we are unable to uphold
the extreme contention raised by Mr. Biswas that a civil
Court is incompetent to entertain a suit the object of which
is to have a scheme established for the administration of a
private debutter.
7. Mr. Biswas's second argument which he put forward in
the alternative is that even if such a suit was cognizable by
a Court of law, the deity is a necessary party to such a
proceeding and it should be represented by a disinterested
person as was done in Pramatha Nath v. Pradhyumna
Kumar Mullick referred to above.
(iii) 1911 (33) Allahabad (ILR), Page 735 (Full Bench)
Jodhi Rai v. Basdeo Prasad Page 737 Deity
described like a minor With great respect we are unable to
agree with the learned Judges. An idol has been held to be
a juristic person who can hold property. Therefore, when a
suit is brought in respect of property held by an idol, it is the
idol who is the person bringing the suit or against whom the
133
suit is brought, the idol being the person beneficially
interested in the suit. No doubt, in every suit the party
bringing it or the party against whom it is brought must,
when he is suffering from an incapacity, be represented by
some other person, as in the case of an infant or a lunatic.
Therefore, when a suit is brought on behalf of or against an
idol, there must be on the record a person who represents
the idol, such as the manager of the temple in which the
idol is installed. The manager of the idol is not personally
interested in the suit, any more than is the next friend or
guardian of a minor. As a suit by a minor should be brought
in the name of the minor and not of his next friend, so
should a suit on behalf of the idol be brought in the name of
the idol as represented by the manager, and in a suit
against the idol the defendant should be similarly..... It is
true that every pleading must be signed by a . being; but
this can be done by the manager, just in the same way as in
the case of an infant the pleadings are signed by his next
friend or guardian for the suit. The first defendant in this
suit was, therefore, properly described in the plaint, and the
view of the learned Judge in this respect is in our judgment
erroneous. If there is any defect in the description of the
defendants in suit of this kind, it is nothing more than an
irregularity or mis-description. If, for instance, a suit on
behalf of an idol is brought in the name of the manager of
the idol that would not warrant the dismissal of the suit; but
the plaint may be amended by correcting the description.
Similarly, in the case of a defendant. Such an amendment
134
would not have the effect to introducing a third party on the
record, and no question of limitation would, in our opinion,
arise.
(iv) AIR 1967 Supreme Court 1044, Vishwanath Vs.
Radha Pal, Paragraph 10, at Page 1047 An idol is in
the position of a minor and when the person representing it
leaves it in a lurch, a person interested in the worship of the
idol can certainly be clothed with an ad hoc power of
representation to protect its interest :
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 in the 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
135
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; see
Radhabai v. Chimnaji, (1878) ILR 3 Bom. 27, Zafaryab Ali v.
Bakhtawar Singh, (1883) ILR 5 All 497, Chidambaranatha
Thambiran v. P. S. Nallasiva Mudaliar, 6 Mad LW 666: (AIR
1918 Mad. 464), Dasondhay v. Muhammad Abu Nasar,
(1911) ILR 33 All 660 at p. 664 : (AIR 1917 Mad. 112) (FB),
Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat
584, Manmohan Haldar v. Dibbendu Prosad Roy, AIR 1949
Cal 199.
11. There are two decisions of the Privy Council, namely
Pramatha Nath Mullick v. Pradyumna Kumar Mullick , 52 Ind
App 245 : (AIR 1925 PC 139) and Kanhaiya Lal v. Hamid Ali ,
60 Ind App 263 : (AIR 1933 PC 198(1), wherein the Board
remanded the case to the High Court in order that the High
Court might appoint a disinterested person to represent the
idol. No doubt in both the cases no question of any deity
filing a suit for its protection arose, but the decisions are
authorities for the position that apart from a Shebait, under
certain circumstances, the idol can be represented by
disinterested persons. B. K. Mukherjea in his book "The
Hindu Law of Religious and Charitable Trust" 2nd Edition,
summarizes the legal position by way of the following
136
propositions, among others, at page 249 :
"(1) An idol is a juristic person in whom the title to the
properties of the endowment vests. But it is only in an ideal
sense that the idol is the owner. It has to act through human
agency, and that agent is the Shebait, who is, in law, the
person entitled to take proceedings on its behalf. The
personality of the idol might therefore be said to be merged
in that of the Shebait.
(2) Where, however, the Shebait refuses to act for the idol,
or where the suit is to challenge the act of the Shebait
himself as prejudicial to the interests of the idol, then there
must be some other agency which must have the right to
act for the idol. The law accordingly recognises a right in
persons interested in the endowment to take proceedings on
behalf of the idol.
This view is justified by reason as well as by decisions.
(v) In AIR 1971 Madras, Page 1 (Full Bench),
Manathu Maitha Desikar Vs. Sundaralingam it has
been held that since deity who is the owner of property
suffers form physical disability, its interests have to be
looked after in perpetuity. Paragraphs 19 and 20 are
reproduced as under :
19. In Rajah Vurmah Valia's case, (1876-78) ILR 1 Mad.
235 (PC) just now referred to, the Judicial Committee having
regard to the usage of the institution, would infer that the
founder prescribed a method of devolution under which the
137
senior most members for the time being of four different
families should be managers or trustees of the temple. If the
managership or the office of Urallars is regarded as right in
property manifestly the rule of devolution prescribed goes
against the principle laid down in Tagore case, 1872-73 Ind
App Supp Vol. 47 and the succession to the office provided
for is not according to the ordinary law of descent of private
property. Mrishnaswami Pillai v. Mookayi Ammal, 31 Ind Cas
35 = (AIR 1916 Mad. 1143 (1) is a case where this court
recognized the validity of an arrangement with reference to
a charity wherein the family had no beneficial interests for
the management of the charity by the head of the family in
each branch, females being excluded.
20. What strikes us as the governing principle behind
these decisions is that in the scheme of devolution of the
office for administration of a public, religious or charitable
institution when the dedication of property is of the
completed character, no rights in the property are dealt
with, the Dharmakartha or manaver provided thereunder
having no proprietary interest in the dedicated property or
profits therefrom. Else it must be held that Hindu Law by
usage invests the founder with power to lay down the
scheme of succession he considers it best in the interests of
the foundation he endows. The founder when the dedication
is complete divests himself of all proprietary rights in the
property endowed. The deity, a juristic entity is the
proprietor who never dies but labours under physical
disability which renders it necessary that its interests should
138
be looked after in perpetuity. As a concomitant a power has
been recognised in the founder to appoint and provide for a
manager to look after the affairs of the deity which has
become the owner of the property. The office which he
creates for attending to the affairs of the deity is a thing of
his own creation and if it is bare office without perquisites,
there is no property in it in the Hindu Law sense of the term.
There is one observation of their Lordships of the Judicial
Committee in Tagore case, 1872-73 Ind App. Supp. Vol 47,
which is significant in this context they stated:-
The power of parting with property once acquired, so
as to confer the same property upon another, must take
effect either by inheritance or transfer, each according to
law.
22. In 71 Mad. LJ 740 = (AIR PC 318) the Judicial
Committee referred to the Full Bench decision with approval.
Their Lordships said:-
In (1900) ILR 23 Mad 271 it was held by this Board
that the second ruling in the Tagore case, 1872-73 Ind App.
Supp Vol. 47 above referred to is applicable to a hereditary
office and endowment as well as to other immoveable
property. This decision was followed in ILR 60 Cal. 452 =
(AIR 1932 Cal. 791)
In Manohar Mukerji's case, ILR 60 Cal., 452 = (AIR Cal. 791) the
question involved was as to the right to the shebaitship of two family
deities and the validity of the Will of the founder who dies in 1840
providing for a life of succession providing for a life of succession to
139
the shebaitship at variance with the ordinary Hindu law of inheritance.
The case is clearly distinguishable as it proceeds on the premise that
Shebaitship is property.
Mr. Bhat Senior Advocate has made following submissions ;
Suit No.5/1989 is for obtaining a declaration that the entire
premises of Shri Ram Janmabhumi at Ayodhya described and
delineated in Annexures I, II and III belong to the plaintiff deities. The
prayer is now restricted to the land occupied by the disputed
structure Babri Masjid that was demolished.
The suit filed in July 1989 is governed by the Limitation Act,
1963 and Art.58 is relevant. It deals with to obtain any other
declaration. The period of limitation is three years and the time from
which the period begins to run is when the right to sue first
accrues.
The period prescribed is subject to the provisions contained in
Sections 4 to 24. The plaintiffs are seeking the protection of Section
6(1) which deals with legal disability and the relevant provision reads:
Where a person entitled to institute a suit at the time from which
the prescribed period is to be reckoned is a minorhe may institute
the suitwithin the same period after the disability has ceased.
The expressions minor, insane or idiot have not been defined
in the Limitation Act. Even the General Clauses Act does not define
these expressions. Insanity may be for an indefinite period of time
and so is the case with an idiot. Can a person lying in a coma
following a stroke or accident be regarded as insane he has lost his
sanity. A state of coma can last for many years. The person surely is
under a disability, but can he be brought under the protection of S.6
140
or is he to be denied the protection altogether? The dictionary
meaning of any of these expressions may provide some guidance but
do not provide tests for determining whether a person is insane or an
idiot.
In the case of a minor, the dictionary meaning is a person under the
age of full legal responsibility. The Majority Act of 1875 S.3 defines
the age of majority as 18 years. S.2 thereof makes some exceptions.
However, the Legislature has the power to change this age. It is
possible that the competent legislature may reduce the age of
majority, say to 15 years, in which case the protection given under
Sec.6 of the Limitation Act is reduced by that many years. In other
words, the undefined expression minor occurring in Sec.6 cannot
operate by its own force. Its meaning may depend upon sources
outside the Limitation Act.
The expression minor for the purpose of Order 32 does not depend
upon the age alone. The commentaries have noted that : But if
before the expiry of the age of eighteen a guardian for the person or
for the property or for both, of the minor has been appointed or
declared by a Court of Justice (apart from the provisions of O.32 of the
Code), or the minors property is taken charge of by a Court of Wards,
then the period of minority is extended till the completion of the age
of twenty-one vide (1907) 29 All.672 (FB), AIR 1976 Mad.235 (236)
(DB), (1907) 31 Bom. 590 (603), ARI 1925 Cal.513 (514) (DB) (See
AIR Manual 6
th
Ed. Page 1045).
It is also pointed out that a Muslim girl who has attained
puberty can sue for dissolution of marriage without a next friend. A
Muslim girl who is major according to her personal law, but is not a
major according to the Majority Act may institute a suit, without a
141
next friend, for a declaration that she is not the wife of the defendant
vide AIR 1964 J&K p.60.
Once the Supreme Court has declared in the case of
Vishwanath and Anr. V. Shri Thakur Radhaballabhji and Ors.
AIR 1967 SC 1044, that an idol or a deity is in the position of a
minor, that idol or deity is entitled to all the benefits that the minor
gets under the laws including the Limitation Act. It may be noted that
under many of the special Acts, the expression minor is defined. For
example, the Hindu Minority and Guardianship Act defines a minor
as a person who has not completed the age of 18 years. However, the
definitions under special Acts are meant for the purpose of those Acts.
The expressions insane and idiot also do not have any
particular definition and the Courts will have to decide whether a
person is insane or an idiot based upon external aid. The Law Lexicon
by T.P. Mukherjee, 4
th
Ed. under the term lunatic based on a
judgment of the Andhra Pradesh High Court defines the term as
follows:-
The words idiot and unsoundness of mind both indicate an
abnormal state of mind as distinguished from weakness of mind
or senility following old age. A man of weak mental strength
cannot be called an idiot or a man of unsound mind. The
intellectual competency of the human mind is of varying
degrees. It fluctuates between brilliance and dullness.
Sometimes in the same individual brilliance in one field
surprisingly appears in juxtaposition with sub-normal practical
apprehension in an allied field. The Act is not intended to
protect dull witted people but only those who suffer from a
mental disorder on derangement of the mind. (See Lunacy Act,
1912, Sec.3(5)) Ganga Bhavanamma v. Somaraju, AIR 1957
A.P. 938 at 939.
Lunacy Act of 1912 had some attempted definition of a lunatic
or insane. However, that Act has been repealed by the Mental Health
Act of 1987 the new Act has no fresh definitions. In any case, as
already stated, the special definitions in any of these Acts are
142
intended for the purpose of that particular Act.
Article 141 of the Constitution of India is categorical that the law
declared by the Supreme Court is binding on all courts and tribunals.
In Bishwanath v. Shri Thakur Radhaballabhji, AIR 1967 SC 1044, the
Court has laid down as a matter of law the following proposition: 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 the 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. The law
declared, therefore, is that an idol is in the position of a minor. In that
particular case it was for the purpose of permitting the worshipper to
file a suit as a guardian or next friend - to safeguard the interest of
the deity. It is submitted that by extending the benefit under Section
6 to a deemed minor ie a deity - the cause of justice is not
prejudiced; but only advanced. In a situation where the expression
minor is not defined, the deity who is in the position of a minor
should receive the protection of S.6 as if the deity is a minor. It may
be that the duration of the disability could be long and indefinite - in
the case of a insane or an idiot it could be life long.
There are no special provisions in the Limitation Act to deal with
recognized juristic persons like a deity. Can it be the intention of the
legislature not to apply the Limitation Act to a deity? Extending the
benefit available to a minor to a deity can do no injustice to the world
at large. It may be noted that in the majority of cases there is a
143
shebait to take care of the idol or deity in such cases S.6 does not
come in to play. Cases dealing with the applicability of O.32 CPC have
found that the said set of provisions may not be sufficient to protect
the interest of a deity.
Thus, deity is a minor for the purpose of S.6 of the Limitation
Act.
In the case of Maharaja Jagadindra Nath Roy Bahadur v. Rani
Hemanta Kumari Debi 31 IA 203, p.210, it was held :
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.
It may be that the plaintiffs adoptive mother, with whom the
settlement of 1877 was made as sebait, might have maintained a suit
on his behalf and as his guardian. This is very often the case when a
right of action accrues to a minor. But that does not deprive the minor
of the protection given to him by the Limitation Act, when it
empowers him to sue after he attains his majority.
Similarly, the law declared by a Division Bench of this Honble
Court Musi Imran v. Collector of Bijnore AIR 1934 All.434, Sulaiman,
CJ, held at p.435 as under : Now, if time began to run against the
lunatic from the 29
th
of August, 1920, when the defendant was
discharged, then the three years would certainly have expired before
the institution of the present suit. But it is admitted that the lunatic is
still under a disability, and it must, therefore, be held that he is
protected under Section 6 of the Indian Limitation Act. The mere fact,
144
that there was a guardian on his behalf who could have sued earlier,
would not deprive him of the protection given by that Section.
In a decision reported in the Electricity Board, U.P. State v. Sheo
Nath Singh AIR 1976 All. 118, it has been held : The plaintiff Sheo
Nath Singh was a minor both on the date of the accident and the
date of the institution of the suit. Hence unless the provisions of
Section 7 of the Limitation Act were applicable, the suit filed on his
behalf during the continuance of the disability but after the expiry of
the ordinary period of Limitation will be saved under the provisions of
Section 6.
In the case reported in AIR 1938 Pat.92, it has been held as
follows : Section 6 applies to every minor whether he has a
guardian or not, and the existence of a guardian competent to sue
is immaterial. Under S.6(1) a minor is entitled to institute a suit or
make an application for the execution of a decree within the statutory
period of three years after attaining his majority and it was never
intended by the Legislature to restrict the protection given to
a minor by the acts of his guardian in the matter of making an
application for execution.[P 93 C2]
Where therefore a guardian for minor applies for execution of a
decree obtained on behalf of the minor, and the application is held to
be barred by limitation, the minor is not precluded from applying for
execution of the decree within the statutory period of three years
from the date of attaining majority and the order in the previous
execution proceedings is not binding on him : 7 CWN 594 and 32 Cal.
129 (PC), Rel. on; AIR 1935 Pat. 526
The above sample decisions have been cited to show that even
if there was a guardian during the period when the plaintiff was a
145
minor, he is entitled to protection of Sec.6 of the Limitation Act.
Under Art.58 of the Limitation Act, the period of three years is
to start when the right to sue first occurs; in the long history of this
case on what date according to the defendants the period began to
run?. Unless the defendants prove otherwise the plaint averments as
to the cause of action should be the basis for applying the provisions
about limitation. Plaint paragraph 18 explains why the present suit
was filed despite the pendency of several other suits. In paragraph
30, it is pleaded, among others, that the Hindus were publicly
agitating for the construction of a grand temple in the Nagar style.
Plans and a model of the proposed Temple have already been
prepared by the same family of architect who built the Somnath
temple. The active movement is planned to commence from
September 30, 1989 and foundation stone of the new temple
building, it has been declared, shall be laid on November 9, 1989.
The plaint also sets out the details fo the pending proceedings under
Sec.145 Cr.P.C. and before any of the steps mentioned in paragraph
30 could be taken like laying of the foundation stone, the title of the
plaintiffs had to be declared. That is why on July 1, 2989, the suit was
filed. Paragraph 36 of the plaint has to be read along with the other
relevant averments. The defendant No.4 in response to the above
paragraphs have asserted that the whole Rama temple was
imaginary. It is no longer imaginary. It is a matter of public knowledge
that the agitation for building a temple at the disputed area had
gathered momentum throughout India, particularly from about the
year 1989 culminating in the destruction of the structure on
December 6, 1992. The averment that in 1989, there was a particular
reason why the suit had to be filed is properly pleaded and justified.
146
Therefore the suit is within the prescribed period of limitation.
Shri M.M. Pandey Advocate on behalf of the plaintiffs has
submitted that plaintiff nos. 1 an 2 are juristic persons. They are
infant in perpetuity and they are not subject of law of limitation. It is
settled proposition of Hindu law that deities cannot be deprived of
their properties and their claim cannot be barred by time and thus
their title can not extinct by dispossession also. His submissions are
as under;
Sri M.M. Pandey, counsel for the plaintiffs submitted as under:-
1. As a Juristic Person, the 'Hindu Deity' is a Class by Himself with
no exact parallel. "The Deity in short is conceived of 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 necessities and luxuries of life in due
succession even to the changing of clothes, the offering of
cooked and uncooked food and retirement to rest" [p. 156; 36
CLJ 478= 1923 Cal 60 (Mookerjee J.), Ram Bramh Chatterji Vs.
Kedar Nath Banerjea this observation was approvingly quoted
by PC in 1925 PC 139, Pramatha Nath Vs Pradyumna Kumar;
see also, ILR 8 Bom 432, Thackersay Vs. Harbhum].
2. Endowment in favour of Deity is a perpetual estate; it is capable
of receiving and holding property, but it does not possess a
power of alienation, hence endowment in favour of Deity is
necessarily a tied up or perpetual estate; absolute gifts of lands
or money perpetually to an Idol or for other religious purposes
have been held to be valid in Hindu Law from early times
(p.137). In Thyrammal Vs.Kanakammal (2005) 1 SCC 457
(para 15,16 & 17), the Supreme Court has held that a religious
endowment does not create title in respect of the dedicated
property in any body's favour, and property dedicated for
religious charitable purpose for which the owner of the property
or donor has indicated no administrator or manager, a property
dedicated for general public use is itself raised to the
147
category of a Juristic Person and such a property vests
in the property itself as a Juristic Person. This special legal
status squarely applies to Asthan Ram Janma Bhumi, Plaintiff
No.2 in OOS 5 of 1989; the spot where Ram was born, and all
properties appurtenant thereto belong to and vest in the spot
itself as juristic person. No body else, not even the Shabait can
become owner of the Deity or property of Deity (p. 248-249; ILR
12 Bom 247, Manohar Ganesh Tambekar Vs. Lakhmiram
Govindram relied upon in ILR (1896) 23 Cal 645, Girijanand Vs.
Shailja (at pages 655-656).
3. Since such vesting of the property is a perpetual estate and the
Deity itself does not possess the power of its alienation
(Prosonno Kumari Vs. Golab Chand LR 2 IA 145 at 150-151, &
Palaniappa Vs. Devasikamony, 44 IA 147)), it follows that no law
can divest the Deity of its property under any circumstance
whatsoever. A Temple is the 'house' of the Deity (p.153 of
B.K.Mukherjea's book); by destroying the house, neither the
Deity nor Deity's property, on which the house stood, could
cease to belong to Deity. Indeed, Section 18 of Transfer of
Property Act recognises that the rule against perpetuity under
that Act, does not apply to transfer of property for the benefit of
public; such exclusion is in-built in Hindu Law itself.
4. Vide, page 19-20 of Mulla's "Principles of Hindu Law, 1958 Edn,
some of the important recognised Dharmashastras are known
as Smritis of Manu (200 BC), Yajnavalkya (1st Century AD p.
24)), Narad (200 AD p. 26)), Parashara, Brihaspati, Katyayana
(4th-5th Century AD p.32) etc; they are of universal
application, not in substitution for another but all treated as
supplementary to each other (-p.20). At page 33, Mulla records:
"Katyayana maintains unimpaired the distinctive qualities of
Smriti of Brahaspati to which he freely refers. His exposition is
authoritative and remarkable for its freshness of style and
vigorous approach. There can be little doubt that this Smriti
must have been brought into line with the current law. It must
have commanded a wide appeal as may readily be gathered
from the profuse manner in which it has been quoted in all
leading commentaries..The arduous task of collecting
148
all the available texts of Katyayana from numerous
commentaries and digests was accomplished by
Mahamahopadhyaya Kane who collated and published in 1933
about one thousand verses of the Smrtiti on Vyavahara
(Procedure) with an English translation". As shall appear
hereafter, statement of law in Katyayana Smriti is of special
significance in these suits. The force, sanctity and King's duty
relating to Temples has been strongly emphasised in the Hindu
Law from ancient times. Apararka [held to be an Authority
under Hindu Law by PC in Buddha Singh Vs. Laltu Singh, 42 I.A.
208 = ILR (1915) 37 All 604, see Mulla p.51-52 acknowledged
by Banares School] says that King should not deprive Temples
of their properties ( History of Dharam Shastra Government
Oriental Series - by P.V. Kane, Volume II Part II page 913). At
page 911 Kane quotes Yagnavalkya that it is part of King's duty
to prosecute and fine persons interfering with or destroying the
property of Temples; he cites Manu (IX/280) requiring the King
to pronounce death sentence on who breaks a Temple, and him
who breaks an image to repair the whole damage and pay a
fine of 500 pannas. The Deity and Temple not only served the
object of Worship of Divine, but also served social purpose.
Historian Romila Thapar writes in 'A History of India' Vol.I
(Pelican Books 1990, 13th Impression 2001), at Page 279 that
the Temple had long been the centre of Hindu social life in the
village, place where Hindus congregated; it 'was the Bank, the
Landowner, the administrative centre for the village and place
of major entertainment in the form of festivals'. Mentioning
Katyayana (4th-5th Century AD vide Mulla at page 14) on
judicial process, Romila Thapar writes at page 154 that
Judgments were based either on legal texts or social usage or
edict of the King which could not contradict the legal text or
Usage; at page 160, she writes Social Law based on man-made
Tradition had already become the sacred law. That is why
Temples were immune from influence of the King. Page 28 of
B.K.Mukherjea's authority mentions Yajnavalkya: 'Customary
Law as well as Usages established by Kings should be carefully
upheld, if not inconsistent with the revealed law'. Vijnaneswara
149
commented upon this text as follows: Duties arising under any
Custom, such as preservation of pastures for cow and of water
and management of Temples (Devgriha) and the like should
also be carefully observed without infringing the duties
prescribed by Shrutis and Smritis .. The same view finds
expression in Shukra-Niti where the duty of protecting
endowments has been spoken of as one of the primary duties
of the King. Thus the duty of Kings to protect endowments
rested on the basis of immemorial customs which were as
sacred as written texts". In Appendix I (Summary of Pran Nath
Saraswati's "Hindu Law of Endowments") at page 507, mention
is made that "On conquest the Temples should be respected".
In D.F.Mulla's 'Principles of Hindu Law', Chapter II on Sources of
Hindu Law, Text No. 3 mentions: "Whatever Customs, Practices
and Family Usages prevail in a Country shall be preserved intact
when it comes under subjection by (conquest) Yajnavalkya I,
343". At page 81 of "Yajnavalkyasmriti", translated by
Manmatha Nath Dutt, published by Parimal Publications Delhi
(1st Edn 2005), verse no.343 reads as follows: 'When a foreign
kingdom is brought under subjection, he should observe the
conduct, law and family practices obtaining in the same
kingdom'. In Chapter 7 of the "Laws of Manu" (Penguin Classics,
Edn 2000) at page 149, Manu's edicts nos. 201 to 203 lay down
that on conquest, the King-conqueror "should make
authoritative their own laws (i.e. of the vanquished) as they
have been declared" In a very early decision, PC held: "The
important principle to be observed by Courts in dealing with
constitution and rules of religious brotherhoods attached to
Hindu Temples is to ascertain, if possible, the special laws and
usages governing the particular community whose affairs have
become subject of litigation": Raja Muttu Ramalinga Setupati
Vs. Perianayagum Pillai, 1 IA 209; at page 234, it goes on to
say: "The subject of devastanum lands is of a great importance
to the happiness of the people, and the attention paid to the
interest of the pagodas .. has been attended with most
beneficial consequences to the people in different parts of
peninsula" (i.e India).
150
5. Such has been the Hindu Law since ancient times. There has
been no change of that law either by any Emperor or by any
Legislature, hence the law as found originally in India relating to
Hindu Deity must be applied. In the case of S. Darshan Lal Vs.
Dr. R.S.S Dalliwall, 1952 All 825 (DB), it is stated in para 16: "In
an inhabited country, obtained by conquest or cessation, law
already prevailing therein continues to prevail except to the
extent English Law has been introduced, and also except to the
extent to which such law is not civilised law at all." The
Court reiterated that view in para 18. This dictum which was
laid down in the context of applicability of English Law in Indian
territories conquered/ceded, constitutes a reasonable premise
for application of then prevailing Hindu law at the time of
conquest by Babar. Indeed, Privy Council held in Mosque known
as Masjid Shahid Ganj Vs. Shiromani Gurdwara Prabandhak
Committee, Amritsar, 1940 PC 116 at page 120 Col. 2, that
"There is every presumption in favour of the proposition that a
change of sovereignty would not affect private rights to
property". It is nobody's case nor any evidence that during the
Muslim rule commencing from late 12th/early 13th Century
(Mohd Ghauri/Qutubbin Aibak who established 'Slave Dynasty'
from 1206 AD) modified any of these laws. Similarly, it is
nobody's case nor any evidence that during Mughal rule from
Babar till the advent of governance by East India Company
(from 1757 with the Battle of Plassey) or that of British rule
from 1858 (with Queen's Proclamation), any modification in
these provisions of Hindu Law was made. The British had
established regular COURTS to administer justice; it was by
OUDH LAWS ACT 18 of 1876 that the British provided what laws
were to be administered in OUDH which includes Ayodhya and
Faizabad; that Statute holds good even today by virtue of
Article 372(1) of Constitution of India. A number of Acts were
framed governing various relationships and situations in the
Hindu Society, like Hindu Women's Right to Property Act, Hindu
Succession Act, Hindu Marriage Act, Hindu Minority &
Guardianship Act etc., both during the British times and post-
independence of India, but none was framed to set out the
151
rights, obligations and antecedents of Hindu Deity; hence Hindu
Law as known to Dharma Shastras continue to apply to Hindu
Deities. The Code of Civil Procedure covers a variety of Suits,
e.g. relating to persons of Unsound Mind, Minors, Corporations,
State Agencies but is totally silent on Hindu Deities.. The
general provisions of Limitation Act could not over-ride the
special & clear Hindu Law found in the Dharma Shastras which
had ensured the rights of Deity to hold good in perpetuity,
without interference by the State (King). Only those provisions
of period of limitation laid down by Dharma Shastras could be
affected by Limitation Act which were modified by any statute
law on specific subjects of Dharma Shastra provisions; there
has never been any statute law governing Hindu Deity & Deity's
property including the Temple which is 'His house'. The rights of
Deities, Ram Janma Bhumi and Bhagwan Shri Ramlala, have to
be determined exclusively/solely on the basis of the Hindu
Law as known to Dharma Shastras and not imperfect analogies
drawn from imperfect comparisons. In Bhyah Ram Singh Vs.
Bhyah Ujagar Singh, 13 MIA 373, PC ruled firmly that where
there is a text of Hindu Law directly on a point, nothing from
any foreign source should be introduced into it, nor should
Courts interpret the text by application to the language of
strained analogies ( p. 41 of Mukherji).
6. It is pointed out at pages 67 to 69 of Mulla's "Principles of Hindu
Law" that in a very early decision (4 MIA 97-98) Privy Council
conceded that 'it is quite impossible for us to feel any
confidence in our opinion.founded upon authorities
(Hindu Dharmashastras) to which we have access only through
translations, and when the doctrines themselves, and the
reasons by which they are supported or impugned, are drawn
from religious traditions, ancient usages and more modern
habits of Hindoos, with which we cannot be familiar". These
suits are very different from any litigation which figured in the
past; they are admittedly of National importance and must be
dealt with on a thorough scrutiny of what the true law is. With
the adoption of Constitution of India, with promises contained in
Articles 13, 14 and Preamble, the decisions of PC have only
152
'persuasive' rather than 'binding' effect: See 1968 SC 1165,
Nair Service Society Vs. K.C.Alexandar. Full effect must be
given to Hindu Dharmashastras, specially in the light of Oudh
Laws Act in these cases.
7. Preamble to Oudh Laws Act of 1876, "declares and amends the
laws to be administered in Oudh" and only in Oudh (Section1).
So far as it goes, therefore, it is exhaustive of the Laws which
the Courts of Oudh must apply in matters covered by the Act.
This position continues even today by virtue of Article 372(1) of
the Constitution of India. Section 3(b)(1) lays down what laws
are to be applied in questions regarding 'any religious usage or
institution, and requires the Courts to apply "any custom
applicable to the parties concerned which is not contrary to
justice, equity or good conscience, or has not been by this or
any other enactment, altered or abolished and has not been
declared to be void by any competent authority". Section 3(b)
(2) requires to apply "the Muhammadan law in cases where
parties are Muhammadans, and the Hindu law in cases where
parties are Hindus, except in so far as such law has been, by
this or any other enactment, altered or abolished, or has been
modified by any such custom as is above referred to". Reading
the two clauses together, the Section sets out the laws which
must be applied to 'parties concerned'. In rights/obligations
concerning Muhammadans, the Muslim law must be applied; in
those concerning Hindus, the Hindu Law must be applied and
after determination of those rights/obligations, if rights/equities
have to be judged between Muhammedans and Hindus, then
Equity, Justice and Good Conscience have to be applied for
determination of the 'Relief'. Section 3(f) requires to apply
".all enactments for the time being in force and expressly,
or by necessary implication, applying to .. Oudh or
some part of Oudh". This demands that the Statute Law in force
for the time being must be applied. It would be appreciated that
this provision itself is Statutory, so that the provision makes the
Hindu/Mohammedan Law, so to say, to be a Statutory Law akin
to 'referential legislation'. Instead of incorporating specific
provisions of Hindu/Mohammedan Law into the Oudh Laws Act,
153
it simply requires those laws to be applied, wherever they may
be found. In the case of Bajya Vs. Gopikabai, 1978 SC 793, two
categories of referential incorporation are recognised: (1)
provision of another Statute is incorporated and (2) the 'law
concerning a particular subject as a genus' is incorporated; in
case (2), the legislative intent is to include all subsequent
amendments made from time to time in the general law on the
adopted subject. Oudh Laws Act belongs to 2nd category; the
important point is that there has never been any legislation on
Hindu Deities, hence the original Dharmashastra law continues
to apply.
8. Section 3(g) requires that "in cases not provided for by the
former part of this section, or by any other law for the time
being in force, the Courts shall act according to justice, equity
and good conscience". Section 4 says that "all local customs
and mercantile usages shall be regarded as valid, unless they
are contrary to justice, equity or good conscience.." Simply
put, the provision accords primacy to 'personal law' (subject to
any other law for the time being in force) and applies justice,
equity and good conscience only when there is no personal law
and that although local custom shall be deemed to be valid, yet
Custom will have to stand the test of justice, equity and good
conscience. Fundamentally, therefore, Hindu Law has to be
applied on the rights/property and incidental matters
concerning Hindu Deity and Temples unless such law has been
modified by any statute or Custom; no such statute was ever
enacted and no case of any modifying Custom ever arose in
these cases.
9. However, Section 16 of Oudh Laws Act lays down the "Rule of
Limitation" and applies Act XIV of 1859 to Oudh with effect from
4.7.1862. Act XIV of 1859 provided for one uniform law of
limitation for all Courts in British India, but had not provided for
extinction or acquisition of rights/title on the basis of
possession. Section 16 of Oudh Laws Act goes no further. Even
so, Section 3(f) mentioned that "all enactments for the time
being in force and expressly or by necessary implication
applying to the territories.of Oudh or some part of Oudh"
154
will be applied by the Courts; Limitation Act of 1871 could fall
within this category but for its exclusion as shall appear shortly.
Extinction/acquisition of rights came to be provided for the first
time by Sections 27 to 29 of Limitation Act IX of 1871 (vide
page 8 of Vol. 1 of "Obhrai's Limitation and Prescription" on
Limitation Act IX of 1908 published by Eastern Law House,
Lahore and page 7 of Vol. 1 of Sanjiva Row's "Limitation Act
1963" Edn 1987 published by Law Book Co, Allahabad). Since
the substantive rights of Deity under Hindu Law clearly
provided that its rights are perpetual and cannot be
extinguished under any circumstance, it must be treated to be
a Statute Law under the Oudh Laws Act; it has only to be found
out whether the provision for extinction under Act IX of 1871 is
such as falls within the restrictive clauses of Section 3(b)(2) of
the Oudh Laws Act. The only restrictive stipulation in that
clause is: "except insofar as such law has been, by this or any
other enactment, altered or abolished". Firstly, an Act of 1871
cannot alter or abolish any provision of 1876 Act. It is also
significant that although Limitation Act 1871, which had
provided for extinction/acquisition of ownership right on the
basis of possession, was already on the Statute Book when
Oudh Laws Act was enacted 4 years later and gave Statutory
status to Hindu Law by 'referential legislation', Oudh Laws Act
did not make a specific provision to curtail the substantive right
of the Deity under Hindu Law. Secondly, the provision of
'altering/abolishing' enactment must alter or abolish the Hindu
Law, it is not enough to provide for alteration/abolition of rights
'generally.' Limitation Acts of 1877 and 1908 similarly contained
provison for extinction of rights similar to Act of 1871, which is
not enough to alter or abolish the Hindu Law regarding Hindu
Deities. The Hindu Law of Deities and law of limitation under
these enactments need to be harmoniously construed. In this
exercise, the procedure provided in a Statute for enforcement of
substantive rights conferred thereby should be construed as far
as possible so as to give effect to and not nullify those rights:
1941 Mad 158, Palani Goundan Vs. Peria Gounden. Procedural
enactments should be construed in such a manner as to render
155
the enforcement of substantive rights effective: 1959 SC 422
(426), Velluswami Vs. Raj Nainar; 1989 SC 2206, M.V.Vali Press
Vs. Fernandee Lopez. Finally, stipulations of Hindu Law
regarding Deity, recognised by Section 3(b)(2) of Oudh Laws Act
are 'particular' and 'special'; they shall over-ride the 'general'
stipulation of Limitation Acts. There is no essential
Jurisprudential or Constitutional requirement that for every
right/remedy a period of limitation must be enacted; more so in
respect of Hindu Deity which is conceived of by Hindu
Dharmashastra Law as Immortal, Indefeasible, Timeless,
Omnipresent & Eternal. After all, Transfer of Property Act or
Indian Trusts Act admittedly does not apply to Hindu Deity.
Hence, provisions of extinguishing rights under any of the
Limitation Acts would be ineffective over the perpetual rights of
Deity under Hindu Law. Here, notice may be taken of Manu's
edict no. 200 of Chapter 8 (at page 174 of "The Laws of Manu",
Penguin Classics, Edn 2000) which lays down: 'If a man is seen
to be making use of something, but no title at all is to be seen,
then the title is the proof (of ownership), not the use; this is a
fixed rule'. Thus, according to Hindu Law, 'title' not 'possession'
establishes ownership and that concept cannot be disturbed
summarily through vague interpretations of general provisions
relating to Limitation.
10. Same result seems to flow from the principle of Reading
Down a general provision in the context of the law as a whole,
vide All Saints High School Vs. Govt of A.P. (1980) 2 SCC 478
para 112. Since the plain meaning of Section 3(b)(2) of Oudh
Laws Act specifically confines the laws of Hindu religious
institutions to the Hindu Personal Law, i.e., the Dharmashastra
Law, which unmistakably confers absolute perpetual and
indefeasible rights on Deity and His property, a mere general
provision that the law of limitation would apply to any suit
instituted in respect of 'any' property which may also include
Deity and/or His property, thereby denying right of suit after
expiry of a certain period of limitation will have to be 'Read
Down' to prevent deprivation of Deity's clear perpetual rights.
156
Sri M.M Pandey, Advocate, further submitted that Ram
Janmabhumi continued to exist as a Swayambhu Deity, owning Itself
and the Temple, hence no question of extinction of title by Limitation
or dispossession could arise. The important aspect of Hindu Law
relating to Deities, thus, is that the Deity is never divested of its rights
in its property; in the case of self-revealed Idol, coupled with the faith
of its followers, there is no independent consecration and the real
owner of the property dedicated to a Temple, is deemed to be God
Himself represented through a particular Idol or Deity which is merely
a symbol: Gokulnath ji Maharaj Vs.Nathji Bhogilal, 1953 All 552.
Alternatively, from the angle of Limitation Act, since the Deity who is
the owner of the property, suffers from physical disability, its interests
have to be looked after in perpetuity, Manathu Naitha Desikar Vs.
Sundarlingam 1971 Mad 1(FB para 20). In a bunch of WPs, decided
by a DB of Rajasthan High Court, Ram Lal & another Vs. Board of
Revenue & Others, 1990 (1) RLR 161, the DB held in para 8: 'It will
not be out of place here to mention that there are series of
judgments of Hon'ble Supreme Court and the Hon'ble Supreme Court
has held that the Deity or Idol should ordinarily be considered as
minor in perpetuity'. In para 10, the High Court again said: 'For the
reasons mentioned above, we are of the view that the deity/idol
should be treated as a minor in perpetuityWhen the offerings
are offered to the deity, the offerings become the property of the
deity and not of the temple. Deity owns the offerings and the Pujari or
the Shebait shall not be the owner of the offerings and the property of
the deity'. This decision was followed in Temple of Thakurji Vs. State
of Rajasthan & others, 1998 Raj 85 (para 11). These decisions also
laid emphasis on the obligation of the State to protect the interests of
the Deity as a perpetual minor. In Sri Banamali Neogi & others Vs. Sri
Asoke Kumar Chattopadhyayay & others, 96 CWN 886 (para 10),
Calcutta High Court held Deity to be a perpetual minor. Similarly, in
Trilochan Das Adhikari & another Vs. Simanchal Rath & others,
1994(II) OLR 602, Orissa High Court held Deity to be perpetual minor.
In foot-note (j) at page 12 of Mulla's Principles of Hindu Law, it is
stated that grounds of disability were recognised in Hindu Law, for
instance there was exemption from limitation in case of minors,
property of King and deposits involving the element of Trust;
157
obviously, dedication to Deity involves "Trust"; Indian Trusts Act does
not apply, vide Section 1 of the Act. In Bishwanath Vs. Radha Ballabh
ji, 1967 SC 1044, it was held that an Idol is in the position of a minor
and when the person representing it leaves it in a lurch, a person
interested in the worship can certainly be clothed with an adhoc
power of representation to protect its interests.
11. According to Katyayana, Temple property is never lost
even if it is enjoyed by strangers for hundreds of years (P.V.Kane
Volume III page 327-328); even the king cannot deprive
temples of their properties (see para 43 above). In Ramareddy
Vs. Ranga (1925 ILR 49 Mad 543) it is held that managers and
even purchasers from them for consideration could never hold
the endowed properties adversely to the Deity and there could
be never adverse possession leading to acquisition of title in
such cases. The Idol/Deity which is an embodiment of Supreme
God and is a Juristic Person, represents the 'Infinite the
Timeless' cannot be confined by the shackles of Time.
Brihadaranakya Upanishad (referred to in Mulla's Principles of
Hindu Law at page 8) lays down: Om Purnam adah, purnam
idam, purnat purnam udachyate; purnasaya purnam adaya,
purnam evavasisyate ['That is Full, this is Full. From the Full
does the Full proceed. After the coming of the Full from the Full,
the Full alone remains' at page (v) of Brihadaranyaka
Upanishad by Krishnanand, pubished by the Divine Life Society,
P.O. Shivananadanagar, District Tehri-Garhwal UP- 1984 Edn.] In
Mahant Ram Saroop Das Ji Vs. S.P.Sahi, Special Officer-in-
charge of Hindu Religious Trusts, 1959 SC 951 (para10), it
recognised that "a Deity is immortal and it is difficult to
visualise that a Hindu private debutter will fail Even if
the Idol gets broken, or is lost or is stolen, another image may
be consecrated, and it cannot be said that the original object
has ceased to exist". In Idol of Thakurji Govind Deoji Maharaj
Jaipur Vs. Board of Revenue Rajasthan, Jaipur, 1965 SC 906
(para 6), it is laid down: "An Idol which is juridical person is not
subject to death because the Hindu concept is that the Idol lives
for ever " Timelessness, thus, abounding in the Hindu
158
Deity, there cannot be any question of the Deity losing its rights
by lapse of time. Jurisprudentially also, there seems to be no
essential impediment in a provision which protects the property
rights of disabled persons, like a Deity, to remain outside the
vicissitudes of human frailties for ensuring permanent
sustenance to it and therefore to keep it out of reach of human
beings, including the King. Every law is designed to serve some
social purpose; the vesting of rights in Deity, which serve the
social purpose indicated above since ancient times, is quite in
order to serve social good (See Para 43).
12. A significant recent decision of English Courts has
recognised the concept of Hindu Idol's disability and
representation by 'next friend', namely (1991) 4 All E.R. 638,
Bumper Development Corporation Ltd Vs. Commissioner of
Police of the Metropolis & Others (including Union of India and
other Indian Parties); a decision rendered by the Trial Court was
upheld by Court of Appeal and House Lords refused Leave to
Appeal against CA decision, popularly known as Nataraj Case. In
Tamil Nadu, near a 12th Century Temple which had laid in ruins
since 13th Century, (called Pathur Temple), and remained un-
worshipped since centuries (at pages 643 & 640), a bronze
Hindu Idol, known as Siva Nataraj, was found by a labourer,
Ramamoorthi, in 1976 during excavation of the ruins. The
Nataraj Idol was sold through several hands and ultimately
reached London market; criminal investigation for offence of
theft of Idol was started and London Metropolitan Police seized
it. Bumper Development Corporation laid claim to it as
purchaser and sued for its possession and damages. Several
other Claimants were impleaded to the suit: these included
Union of India, State of Tamil Nadu, Thiru Sadagopan (Claimant
No 3) as "the fit person" of the Temple and Temple itself
(Claimant No. 4) through Claimant No3. (The concept of "fit
person" is same as "Next Friend" at page 643). During
pendency of the proceedings, a Sivalingam (which too was
found buried in the ruins of the Temple) was reinstated as an
object of worship at the site of the Temple. The Trial Judge,
relying upon B.K.Mukherjea's Hindu Law of Religious and
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Charitable Trusts (page 646 of Report) held that Claimant No4
(Temple) suing through Claimant No. 3 as 'fit person, or
custodian or next friend' (page 643 of Report) had proved his
title superior to that of Bumper and 'the pious intention of 12th
Century notable who gave the land and built the Pathur Temple
remained in being and was personified by the Sivalingam of the
Temple which itself had a title superior to that of Bumper'. The
Court of Appeal upheld the finding of the Trial Court Judge that
under Hindu Law, the Temple was a juristic entity and Claimant
No. 3 (next friend Thiru Sadagopan) had the right to sue and be
sued on behalf of the Temple. The right of the Temple through
the Next Friend to possess the Nataraj Idol was upheld (page
648 of Report); House of Lords refused Leave to Appeal (page
649 of Report). This 20th Century decision of English Courts has
striking similarity with the present Ram Janmabhumi case: 12th
Century Temple remained in ruins & un-worshipped through
centuries (in our case it was 11th-12th Century Vishnu-Hari
Temple which was demolished in 1528 and Babri Mosque, DS
was erected at its place, so that the Temple/Deity 'remained in
ruins with existing foundations'). During the pendency of
Bumper Development Corporation case, a Shivalingam, found
buried in the ruins of the Temple was 'reinstated'. In our case,
ASI found an ancient 'Circular Shrine' embedded in disputed
area, DS was destroyed on 6.12.1992, and at its place a make-
shift Temple was erected at Ram Janma Bhumi with Bhagwan
Shri Ramlala installed in it; so both Deities Plffs 1 & 2 of OOS 5
of 1989 got into position. In Bumper case, the 'pious intention
of 12th Century' dedication was held by the Trial Court 'to
remain in being' as personified by the Sivalingam of the Temple,
a juristic entity, which was represented by 'Next Friend. The
same concept is laid down in the case of Adangi Nageswara
Rao Vs. Sri Ankamma Devatha Temple, 1973 Andhra Weekly
Reporter 379 (paras 6 & 8 see para 36 of these Arguments).
So also, in our case, Vishnu-Hari Temple of 11th-12th Century
must be deemed 'to remain in being' on erection of make-shift
Temple coupled with Circular Shrine and the Deity/Temple
Plaintiffs 1 & 2 must be held to be duly represented through
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Plaintiff No. 3 in OOS 5 of 1989 as Next Friend.
13. As mentioned earlier, a Hindu Deity is a Class by itself
(See Para 40), there is no exact analogy or parallel. Its affairs
are managed by a Shebait, but the Shebait is neither owner nor
trustee of the Deity or its property as known to Indian Trusts Act
(Section 1). 'Beneficiary' of the dedication (actual or assumed)
is the Deity and every Worshipper/Devotee; the latter has
interest enough to force the Shebait to perform his functions
duly even through a Court action, if necessary. Supreme Court
has held in the case of Bishwanath Vs. Sri Thakur Radha
Ballabhji (1967 SC 1044) that worshippers of an Idol are its
beneficiaries, though only in a spiritual sense, and 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;
it goes on to say: "That is why decisions have permitted a
worshipper in such circumstances to represent the Idol and to
recover the property for the Idol". It is the duty of the State
(King) to protect the Deity and its property a shade of this
duty is found in Section 92 CPC. [In para 40 of Guruvayur
Devasom Managing Committee Vs. C.K.Rajan, 2004 SC 561, the
Supreme Court has held, "In any event, as a Hindu Temple is a
juristic person, the very fact that S. 92 of the Code of Civil
Procedure, seeks to protect the same, for the self-same
purpose, Arts. 226 and 32 could also be taken recourse to."]
Shebait cannot alienate the property of the Deity. In
Thyrammal Vs.Kanakammal (2005) 1 SCC 457 (para 15,16 &
17), the Supreme Court has held that a religious endowment
does not create title in respect of the dedicated property in any
body's favour, and property dedicated for religious charitable
purpose for which the owner of the property or donor has
indicated no administrator or manager, a property dedicated for
general public use is itself raised to the category of a
Juristic Person and such a property vests in the property
itself as a Juristic Person. This special legal status squarely
applies to Asthan Ram Janma Bhumi, Plaintiff No.2 in OOS 5 of
1989; the spot where Ram was born, and all properties
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appurtenant thereto belong to and vest in the spot itself as
juristic person. In Acharya Maharaishi Narendra Prasad ji Vs.
State of Gujarat, (1975) 1 SCC 2098 (para 26), while upholding
the right of State to acquire the property of Deity under Article
31 of the Constitution, laid down an exception by holding: "If on
the other hand, acquisition of property of religious
denominations by the State can be proved to be such as to
destroy or completely negative its right to own or acquire
movable and immovable property for even the survival of a
religious institution, the question may have to be examined in a
different light". This dictum was reaffirmed by SC in Ismail
Farooqui's case, 1995 SC 605 (para 79); it was further held in
para 77: "The protection under Article 25 and 26 of the
Constitution is to religious practice which forms an essential
and integral part of the religion"; the law stated in para 78 is:
"While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential part of such religious practice unless
the place has a particular significance for that religion so as to
form an essential or integral part thereof. Places of worship of
any religion having particular significance for the religion,
stand on a different footing and have to be treated
differently and more reverentially". This decision of the
Supreme Court is in this very case and has to be respected
fully. In the summary contained in para 82, the Supreme Court
observed: "Obviously, the acquisition of any religious place is to
be made only in unusual and extraordinary situations for a
larger public purpose keeping in view that such acquisition
should not result in extinction of the right to practice
the religion, if the significance of that be such".
Undoubtedly, Asthan Ram Janma Bhumi , Plaintiff No. 2 of OOS
5 of 1989, belongs to this very category of Deity Class entirely
by itself; hence the State can not acquire either the Deity or its
property.
14. Oudh Laws Act has laid emphasis on application of
principles of equity, justice and good conscience; but it is
necessary to appreciate in what fields or areas, the Act requires
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those principles to be applied. Clause (g) of Section 3, lays
down the broad principle that "in cases not provided for by the
former part of this section or by any other law for the time
being in force", Court has to act in accordance with justice,
equity and good conscience. Section 3(b)(2) clearly stipulates
that in matters relating to Hindu religious institutions, the Hindu
Law shall apply; hence Clause (g) will not apply. Justice, equity
and good conscience is made applicable to 'Custom' under
Section 3(b)(1), but the law regarding Deity is part of 'personal
law' under Section 3(b)(2) as distinguished from 'customary
law'. Mulla mentions at page 65, that principles of Equity,
Justice & Good Conscience were invoked only in cases for which
no specific rules existed. In Gurunath Vs.Kamalabai 1955 S.C.
206, it has been held that in the absence of any clear Shastric
text, Courts have authority to decide on principles of justice,
equity and good conscience.
15. It is a settled principle that 'Equity' follows 'Law', i.e.
where Law is applicable, considerations of Equity do not come
into play (vide, Halsbury's Laws of England 4th Edn, Vol 16,
para 1204). Since Hindu Law specifically prescribes that the
rights of Deity are not destroyed by another's possession
howsoever long, 'equity' cannot be applied to deprive the rights
of Deity on the basis of possession.
16. On facts in these cases, justice, equity and good
conscience are in favour of Plaintiffs of OOS 5 of 1989 rather
than Plaintiffs of OOS 4 of 1989. In para 1204 of Halsbury's
Laws of England (supra) it is stated that 'equity implies a
system of law which is more consonant than the ordinary law
with opinions current for the time being as to just regulation of
mutual rights and duties of men living in a civilised society.
When Babar became Emperor as a conqueror and did not frame
any law governing Hindu Deities/Temples, the Hindu Law
prevailing at that time had to be applied by him as indicated
above.
17. In general, when the word 'conscience' was used, this
denoted the conscience of the Defdt., and the Court by decree
in personam prevented him making an unconscionable use of
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his rights at common law. The correction of Defendant's
conscience was the ground of the interference of equity in case
of fraud, breach of trust and 'wrong and oppression generally
(Ft.Note 1, HLE Supra). The special imperfections of medieval
common law, as to its administration were that its judgments
were not capable of being adapted to meet special
circumstances or were turned into a means of oppression. The
Court of Chancery, in so far as it remedied these defects,
afforded an improved system of attaining justice, but this was
the difference between law and equity. Law and equity have
both the same end, which is to do right. Where it differed from
the law, this was in order to moderate its rigour, to supply its
omissions, to assist the legal remedy, or to relieve against the
evasion of the law or the abuse of legal rights; it supplied its
omissions by exacting conscientious conduct from the
defendant when the law recognised no binding obligation (Ft.
Note 3, HLE Supra). Babar could not be permitted, in equity or
good conscience, arbitrarily to deprive the Deity of its rights
and possession at the DA. (See also paras 50, 51 and 52 of
these Arguments).
18. An application of these principles of equity to the present
suits, entitles the Plaintiffs of OOS 5 of 1989 to the relief
sought. The pith and substance of the plaint case in OOS 5 of
1989 is that DS/DA is the birthplace of Bhagwan Shri Ram, that
before Babar's invasion, a Temple stood there, that worship of
the birthplace and the temple by Hindu public had been going
on since ancient/immemorial time, that the temple was
destroyed by the hordes of Babar and at its site Babri Masjid
was constructed, that a structure raised by force of arms on
Deities' land after destroying their temple, could not be treated
to be a legal/valid mosque according to Islam, and the Quran as
shown above. In view of this command of Quran, conversion of
Temple into Mosque did not create a valid dedication of the
property to Allah in fact or in law (para 24 of Plaint). In reply to
these pleadings, Sunni Central Boards of Wakf, Defdt. No 4,
stated (in para 24 of WS) that the quotation of Quran was 'out
of context', 'not correct' 'nor complete'; but SB did not set out
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any context, nor the 'correct' or 'complete' quotation in WS or
anywhere in evidence. Regarding Plaintiff's case of failed
dedication to Allah, the reply is that Babar was the Emperor,
"the vacant land on which the Babri Masjid was built lay in the
State territory and did not belong to anyone and it could very
well be used for the purpose of the Mosque and specially so
when the Emperor himself consented and gave approval for
construction of the said Mosque". This is incorrect. Babar never
became Emperor See Para 33A. The land was a Hindu Deity as
birthplace of Bhagwan Shree Ram, hence was owned by the
Deity, whose Temple was standing thereat, as Deity's House in
possession of Bhagwan Shree Ram; therefore it could not vest
in the Conqueror/Emperor. As conqueror, it was Babar's duty to
protect the birthplace/temple. A significant fact stated by
Supreme Court in Ismail Farooqui's case, (1994) 6 SCC 360
(para 11) is that in the White Paper (Chapter II, para 2.8) of the
Central Government preceding the Acquisition of Certain Areas
at Ayodhya Ordinance No. 8 of 1993, re-enacted as Central Act
No. 33 of 1993, Muslim leaders had stated that if it was proved
that a Hindu Temple had existed on the site of the Disputed
Structure and was demolished on Babar's orders for
construction of Babri Masjid, the Muslims would voluntarily
hand over the disputed shrine to Hindus. It is also important
that according to para 4 of the Supreme Court Judgment, the
Acquisition "Bill was introduced in the Parliament leading to the
above enactment and the said Reference to this Court was
made in the historical background set out in the White paper".
The legal effect is that since these facts stand proved, the
Central Govt. itself would be estopped from denying the remedy
sought by the Plaintiffs in OOS 5 of 1989, and would have to
feed the estoppel by grant by the equitable doctrine of
Estoppel, vide, Renu Devi V. Mahendra Singh & Others (2003)10
SCC 200.
19. Further, these very established facts would amount to
"wrong and oppression" and "unconscionable use" of his rights
as Emperor, if at all, in as much as he violated settled
Usage/Custom of Hindu Community which Babar was bound to
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protect as 'conqueror' enjoined by Hindu Law (the Law of the
'Subject"). In the case of S. Darshan Lal Vs. Dr. R.S.S Dalliwall,
1952 All 825 (DB), it is stated in para 16: "In an inhabited
country, obtained by conquest or cessation, law already
prevailing therein continues to prevail except to the extent
English Law has been introduced, and also except to the extent
to which such law is not civilised law at all." Earlier, PC
had ruled in Mosque known as Masjid Shahidganj Vs. Shiromani
Gurdwara Parbandhak Committee, 1940 PC 116 at page 120,
'There is every presumption in favour of the proposition that a
change of sovereignty would not affect private rights to
property'. It also constituted violation of injunctions of Babar's
own religion contained in the Quran, and equity would require
Babar to purge his own conscience of the 'wrong, oppression,
and violation of Holy Laws of his own Subjects and those of his
own religion'. Similar equities would prevail between the
present parties to these suits in as much as 'wrongs' committed
by Babar, could not become 'right' by mere lapse of time, and
would continue to be wrongs even today. The 'general law' of
extinction of rights contained in the Limitation Act is not enough
to over-ride the substantive rights of the Deity under 'special'
Hindu Law; no law of limitation can apply to the rights and
property of Deity as discussed earlier.
As an independent special Class of person, there is no constitutional
impropriety or illegality in having laws exclusively applicable to the
Plaintiff-Deities of OOS 5 of 1989. A recent analogy is provided by The
Public Waqfs (Extension) of Limitation Act, 1959 which accords a
privilege to all the Muslim Public Waqfs in the period of limitation for
certain types of civil suits upto 31
st
day of December 1970 for the
only reason that in the wake of the partition of India Mutawallis of
certain properties had migrated to Pakistan or those who stayed
behind could not institute civil proceedings for recovery of possession
of these properties. On this basis limitation has been extended in
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respect of all Public Waqfs. Similarly, laws exclusively applicable to
Hindu deities could be had and read in the light of Oudh Laws Act,
1876, could apply the Hindu Dharma Shastra Law, which contains
substantive as well as provisions relating to Limitation qua Hindu
Deities. The legal position under the Hindu Dharma Shastra Law being
as the one indicated above, destruction of Hindu Temple at the site of
DS or erection of Babri Masjid over it could never deprive the two
Deities, Ram Janma Bhumi & Bhagwan Shri Ramlala of their
ownership of the disputed property/area; the Indian Law of Limitation
is not applicable at all. Decision of Supreme Court in Shah Bano's
case was upset by the Parliament on the ground of sensitivities of
Muslim Community for Muslim Personal Law. Muslim Personal Law
(Shariat) Application Act, 1937 was framed to apply personal law to
Muslims. Sensitivities of Muslims stand even today in the way of
adoption of a Common Civil Code for India envisaged by Article 44 of
Directive Principles of State Policy in our Constitution. The
Constitutional protection, if any, for such laws should also support
special laws in the case of Hindu Deity, on principles of equality,
particularly in view of Oudh Laws Act 1876 and Article 372(1) of the
Constitution.
On behalf of the defendants only this much has been said that
plaintiff nos. 1 and 2 are not the deities. They are not infants. The
suit for limitation has been filed beyond limitation and Section 6 of
Limitation Act does not come in operation in this case. Accordingly
the suit is liable to be dismissed being barred by limitation. In this
regard.
At the cost of repetition, I would crave to refer that while
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deciding issue nos. 1 and 2 I have given findings that plaintiff nos. 1
and 2 are juridical persons. I have already referred extracts of Hindu
Law on Religious and Charitable Trust on the point of Hindu idols, the
deity and religious faith. In this regard certain cases have also been
referred to establish that Asthan and Chabutra and deities,the
plaintiffs (no. 1 and 2) are juristic persons and they will be deemed
under the law law as child and for the reasons that deity is a child. It
is not disputed that in view of the decision, referred to above, the
idols are minors. Thus, I am referring the finding on issue nos. 1,2
and 6 for the sake of brevity. Thus, in view of the findings of this Court
on issue nos. 1,2 and 6, plaintiff nos. 1 and 2 are the juridical persons.
I agree with the view of Sri Ravi Shanker and Sri Bhat Senior
Advocates that no limitation runs against deities which are perpetual
minors. In this context, I have also to add that the deities are
perpetual infants and Hindu idol being juridical person is capable of
holding properties. Thus, the benefit of Section 6 of Limitation Act is
all the time available to minors I.,e, deities in this case. They are
considered to be under disability . Under Section 6 of the Limitation
Act the ground for extension of limitation are minority, lunacy, and
idiocy of the person . In the instant case plaintiff nos. 1 and 2 will be
deemed to be disable on account of of their minority. Even in England
church has been regarded as under age. Right from 1903 to 1967
and thereafter also the Indian Courts have always treated idols as
infants perpetually. In this regard decision of Hon'ble the apex court in
AIR 1967 S.C. Page 1044 Bishwanath and another Vs. Shri Thakur
Radhaballabhji and others which has considered the earlier decisions
of Privy Council and different High Court of this country held that an
168
idol is in a position of minor. Consequently, in view of Section 6 of
Limitation Act for the purpose of Limitation Act provisions of Section
6 would be made applicable. In this case benefit of Section 6 is not
limited to the period after the cessation of the disability but applies
also to the period during which disability exists. The plaintiff can
only sue through next friend . During the continuance of the disability
whether the period of limitation expired or not, Section 6 applies to
every minor including the deities. It is a settled proposition of law
that a person entitled to bring the suit can claim benefit of Section 6.
The plaintiffs have claimed this benefit. Section 6 of the Limitation Act
prescribes that the plaintiff or applicant must be under the disability
on the date from which the period of limitation is reckoned. In this
case the defendants have not pointed out and have not opposed the
claim of deities,i,e, plaintiff nos. 1 and 2 that they were not under the
disability. Once it is proved that plaintiffs no. 1 and 2 are the deities,
they are required to sue on behalf of the next friend either he may be
Shebait or worshipper vide AIR 1967 Supreme Court 1044
Bishwanath and another Vs. Shri Thakur Radabhallabhji and others .
Accordingly the worshipper P.W.3 , the next friend filed the suit on
behalf of the deities. Thus, the disability is starting point of limitation.
In this regard it would also be expedient to mention as a general rule
the infancy is a personal privilege of which no one can take
advantage but the infants themselves. In this context AIR 1956
MADRAS 15 (V. 43 C. 6 JAN.), Thayammal vs. Rangaswami
Reddy and others,para 9 is reproduced as under;
It is well established that the special provision of Section 6,
Limitation Act confers a purely personal exemption on a certain class
169
of persons, and the exemption as such cannot be taken advantage of
by the transferee from the person under disability. It is sufficient to
refer to two of the leading authorities, the decision of the Full Bench
of the Calcutta High Court in 'Rudra Kant Surma Sircar vs. Nobo
Kishore Surma Biswas', 9 Cal. 663 (FB) (A), and the decision of our
Court in 'Rangaswami Chetti vs. Thangavelu Chetti, AIR 1919 Mad
317 (B).
Further AIR 1962 PATNA 182 (V. 49 C 43), Lalji Sah &
Others Vs. Sat Narain Bhagat & Others Para 22 is reproduced as
under. This view is based on the decision of Privy Council.
This section provides that the period of limitation
prescribed for a person who does not suffer from any legal disability
shall be computed in the case of a minor, from the date of cessation
of his minority : see Batuk Prasad vs. Rudra Das, AIR 1950 Pat 206. It
is also well settled that the privilege given to a minor under this
section is not one that could be availed of by him only, but while the
minor's disability lasts his guardian or next friend also can bring a suit
or make an application though the ordinary period of limitation for
such a suit or application has run out (see Phoolbas Koonwar vs. Lala
Jogeshwar Sahay, ILR 1 Cal 226 (PC): Khodabux vs. Budree Narain
Singh, ILR 7 Cal 137; Jagadindra Nath Roy vs. Hementa Kumari Devi,
ILR 32 Cal 129 (PC) and Satyendra Narain Sinha vs. Pitamber Singh,
AIR 1938 Pat 92). Hence the plea of limitation fails.
AIR 1971 MADRAS 1 (V 58 C 1), K. Manathunainatha
Desikar Vs. Sundaralingam (Minor represented by his next
friend M. Swaminathan) & Ors. Para 20 is reproduced as under:-
The founder, when the dedication is complete divests
himself of all proprietary rights in the property endowed. The deity, a
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juristic entity, is the proprietor who never dies but labours under
physical disability which renders it necessary that its interests should
be looked after in perpetuity. As a concomitant a power has been
recognised in the founder to appoint and provide for a manager to
look after the affairs of the deity which has become the owner of the
property. The office which he creates for attending to the affairs of the
deity is a thing of his own creation and if it is bare office without
perquisites, there is no property in it in the Hindu law sense of the
term. There is one observation of their Lordships of the Judicial
Committee in Tagore case, 1872-73 Ind App. Supp. Vol.47, which is
significant in this context. They stated:-
The power of parting with property once acquired, so as to confer
the same property upon another, must take effect either by
inheritance or transfer, each according to law.
On the basis of the aforesaid proposition of law the deities are
entitled to the benefit of Section 6 by their next friend in this case and
the suit will not be deemed to be barred by limitation.
Personal privilege given to the minor under Section 6 of
Limitation Act has been availed in this case by the next friend,
plaintiff no. 3. I further find that the defendants have failed to point
out any circumstance under which the benefit of Section 6 should not
be given to plaintiff nos. 1 and 2.
Hon'ble the apex court in Bishwanath and another Vs. Shri
Thakur Radhabhallabhji and others AIR 1967 S.C. 1044 recognized
the rights of a worshipper and a person interested in the worship of
idol was found to be clothed with an ad hoc power of representation
to protect its interest. Thus, plaintiff no. 3 has come out with a case
171
that as per trust deed the worshippers have decided in the interest
of worship of idol to remove the disability of the idols as there is
dereliction of deities by the person responsible not managing the
affairs of the idols in their interest. Consequently, in view of the
decision of the apex court in AIR 1967 SC 1044 (Supra) referred to
above even this Court is competent to appoint a next friend to look
after the interest of plaintiff nos. 1 and 2 by appointing next friend
to safeguard the interest of the deity as some human being is
required to represent the deity before the court of law. Thus,
definitely plaintiff nos. 1 and 2 , the deities,the idol in person have
properly been represented by next friend, plaintiff no.3 and plaintiff
nos. 1 and 2 have proved their disability and sufficient cause of not
filing the case within the time and have further proved that their case
is not barred by Secretion 6 of the Limitation Act and against them
being infants according to the principle of personal privilege the
provisions of period of limitation do not apply.
To sum up I hold that plaintiff nos. 1 and 2 are infant juridical
persons and they are entitled for the benefit of Section 6 of the
Limitation Act. Accordingly the suit is not barred by limitation.
Issue no. 13 is decided in favour of the plaintiffs and against
defendants.
ISSUE NO. 30
To what relief, if any, are plaintiffs or any of them
entitled ?

FINDINGS
In view of my findings on issues nos. 1 to 29, it transpires that
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in leading O.O.S. No. 4 of 1989 and also in this case it is manifestly
established by public record, gazetteers, history accounts and oral
evidence that the premises, in dispute, is the place where Lord Ram
was born as son of Emperor Dashrath of solar dynasty. According to
the traditions and faith of devotees of Lord Ram, the place where
He manifested Himself has ever been called as Sri Ram
Janmbhumi by all and sundry through ages. Thus, the Asthan, Ram
Janmbhumi, plaintiff no. 2 has been an object of worship as a deity by
the devotees of Lord Ram as it personifies the spirit of divine
worshipped in the form of Ram Lala or Lord Ram, the child. I have
already observed that Ram Janmbhumi is also a deity and a juridical
person. I am also of the opinion that the Hindus worship the divine
place in the form of an incarnation and, therefore adopt the form of
incarnation as their Ishtdeo. The Hindus can mediate upon the
formless and shapeless divine, I,e, plaintiff no. 2. The spirit of Divine
is indestructible. Birth place is sacred place for Hindus and Lord Ram,
who is said to be incarnation of God, was born at this place.The
Hindus since times immemorial and for many generations constantly
hold in great esteem and reverence the Ram Janmbhumi where they
believe that Lord Ram was born. It is established by tradition and
classical legal literature relating to the Hindus and according to their
belief and faith that the place is regarded as a deity. This place,
according to Hindu religion is symbol and embodiment of spiritual
purpose and the property is dedicated and vested with plaintiff no.
2. This place being worshipped as idol from times immemorial and
dedicated property vests in idol as juristic person. According to the
religious customs of Hindus and recognition established by courts of
law, plaintiff no. 1 is a juristic entity and it has juridical status. Its
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interests are attended by the person ,i.e, next friend. According to
the Smirit, if an image is broken or lost another may be substituted in
its place; when so substituted it is not a new personality but the
same deity and properties vested in the lost or mutilated idol
becomes vested in the substituted deity .Thus, the place according to
the Smirit have to be considered as a deity like Agni and Vayu being
worshipped. They are shapeless and formless but they attain the
divinity. If the public go for worship and consider that there is divine
presence then it is temple which has already been held by Hon'ble
apex court in 1999(5) SCC page 50 Ram Janki Deity Vs. State of
Bihar.
In view of the findings referred to above and the assertions in
the plaint, the plaintiff no. 2 is the deity and public is going for
worship from times immemorial with a feeling of presence of deity
divine. Therefore, it is deemed to be a temple. Even if the temple is
destroyed, it would not change the character of the deity and the
place will remain a juridical person. Nature of Hindu religion is
monism. It believes in one supreme being , who manifests Himself in
many form. This is the reason why Hindus start adoring in
deity.According to Hindu notion, what is worshipped in a temple , it is
not stone image or image made of wood. It is the God behind image
which is the object of worship. The real owner of the property
dedicated to a temple is deemed to be God himself represented
through a particular idol or deity which is merely a symbol vide
Gokul Nath Ji Mahraj Vs. Nathji Bhogilal AIR 1953 Allahabad
552. Thus, after the length of time it is impossible to prove byl
affirmative evidence that there was any consecration ever by faith
and belief. It is believed that the place is the place which was
174
considered by all time as a deity and is being worshipped like a deity.
Accordingly Asthan is personified as the spirit of divine worshipped
as the birth place of Ram Lala or Lord Ram as a child . Spirit of divine
ever remains present every where at all times for any one to invoke
at any shape or form in accordance with his own aspirations .
In view of the aforesaid circumstances, the plaintiffs are entitled
for the relief claimed.
Order
Plaintiffs' suit is decreed but with easy costs. It is hereby
declared that the entire premises of Sri Ram Janm Bhumi at Ayodhya
as described and delineated in annexure nos. 1 and 2 of the plaint
belong to the plaintiff nos. 1 and 2, the deities. The defendants are
permanently restrained from interfering with, or raising any objection
to, or placing any obstruction in the construction of the temple at
Ram Janm Bhumi Ayodhya at the site , referred to in the plaint.
(D.V. Sharma)
S.P.Tripathi/Tanveer/Akhilesh
Padam P. Srivastava/Raghvendra
I N D E X
ANNEXURE-I
S. No. Particulars Page no.
1 Judgment in Dr. M. Ismail
Faruqui and others Vs. Union of
India and others (Transferred
Case (C ) No. 41, 43 and 45 of
1993) connected with three other
transferred Cases.
1 to 50
2 Plaint in O.O.S. No. 4/89 51 to 63
3 W.S. in O.O.S. No. 4/89 64 to 184
4 Replication in O.O.S. No. 4/89 185 to 194
5 Map 194-A
6 Statement under Order 10 Rule 2
C.P.C. in O.O.S. No. 4/89
195 to 206
7 Issues in O.O.S. No. 4 of 1989 207 to 214
8 Plaint in O.O.S. No. 5 of 1989 215 to 239
9 WS in O.O.S. No. 5 of 1989 240 to 311
10 Maps prepared by Sri Shiv
Shanker Lal, Pleader
Commissioner
311-A &
311-B
11 Statement under Order X Rule 2
C.P.C. in O.O.S. No. 5 of 1989
312
12 Issues in O.O.S. No. 5 of 1989 313 to 316
I N D E X
ANNEXURE-II
S. No. Particulars Page No.
1 Plaint in O.O.S. No. 3 of 1989 . 1 to 6
2 Map 6-A
3 Additional W.S. in O.O.S. No. 3
of 1989
7 to 14
4 Replication in O.O.S. No.3 of
1989
15 to 26
5 Statement under Order 10 Rule 2
C.P.C. in O.O.S. No. 3 of 1989
27
6 Issues in O.O.S. No. 3 of 1989 28 to 29
7 Plaint in O.O.S. No. 1 of 1989 30 to 33
8 W.S. in O.O.S. No. 1 of 1989 34 to 44
9 Replication in O.O.S. No. 1 of
1989
45 to 48
10 Statement in O.O.S. No.1 of 1989
under Order 10 Rule 2 C.P.C.
49 to 56
11 Issues in O.O.S. No. 1 of 1989 57 to 59
12 Proceedings under Section 145
Cr.P.C. (Vol-I)
60 to 119
13 Proceedings under Section 145
Cr.P.C. (Vol-II)
120 to 193
I N D E X
ANNEXURE-III
S. No. Particulars Pages
1 Order dated 01.08.2002 of the Hon. High
Court regarding Excavation.
01 to 04
2 Order dated 05.03.2003 of the Hon. High
Court regarding Excavation.
05 to 15
3 Report of Archaeological Survey of India. 16 to 25
4 Orders dated 3.2.2005 and 04.12.2006 of
the Hon. High Court disposing of the
objections/additional objections against
the report of Archaeological Survey of
India.
26 to 52
5 Objection against the report of
Archaeological Survey of India filed on
22.8.2003 by plaintiff No.1, Sunni Central
Board of Waqfs, U.P.
53 to 127
6 Objection against the report of
Archaeological Survey of India filed on
22.8.2003 by plaintiff No.9, Mahmood
Ahmad.
128 to 163
7 Examination in Chief of O.P.W. 17, Dr. R.
Nagaswamy on affidavit under order 18,
Rule 4 C.P.C.
164 to 167
8 Statement of O.P.W. 17, Dr. R.
Nagaswamy in support of ASI report.
168 to 210
9 Statement of O.P.W. 18, Arun Kumar
Sharma in support of ASI report.
211 to 225
10 Statement of O.P.W. 19, R.D. Trivedi in
support of ASI report.
226 to 278
11 Affidavit of D.W. 20/5, Jayanti Prasad
Srivastav under Order 18 Rule 4 C.P.C.
279 to 281
12 Statement of D.W. 20/5, Jayanti Prasad
Srivastav in support of ASI report.
282 to 350
(1994) 6 Supreme Court Cases 360
(Before M.N. Venkatachaliah, C.J. And A.M. Ahmadi,
J.S. Verma, G.N. Ray, and S.P. Bharucha, JJ.)
Transferred Case (C) Nos. 41, 43 and 45 of 1993
Dr. M. Ismail Faruqui and Ors. ..... Petitioners
Vs.
Union of India and Ors. ..... Respondents
With
Writ Petition (Civil) No. 208 of 1993
Mohd. Aslam ....... Petitioner
Vs.
Union of India and others ....., Respondents
With
Special Reference No. 1 of 1993 with I.A. No. 1 of 1994 in
T.C.No. 44 of 1993
Hargyan Singh ..... Petitioner
Vs.
State of U.P. And Ors. ..... Respondents
With
Transferred Case (C) No.42 of 1993
Thakur Vijay Ragho Bhagwan
Birajman Mandir and Another .... Petitioners
Vs.
Union of India and Others .... Respondents
1
J. S. VERMA, J. (for Venkatachaliah, C.J., himself and Ray, J)- "We have
just enough religion to make us hate, but not enough to make us love one
another."
- Jonathan Swift
Swami Vivekananda said -
"Religion is not in doctrines, in dogmas, nor in intellectual
argumentation; it is being and becoming, it is realisation."
This thought comes to mind as we contemplate the roots of this controversy.
Genesis of this dispute is traceable to erosion of some fundamental values of
the plural commitments of our polity.
2. The constitutional validity of the Acquisition of Certain Area at
Ayodhya Act, 1993 (No. 33 of 1993) (hereinafter referred to as "Act No. 33
of 1993" or "the Act") and the maintainability of Special Reference No. 1 of
1993 (hereinafter referred to as "the Special Reference") made by the
President of India under Art. 143(1) of the Constitution of India are the
questions for decision herein. The background in which these questions are
to be answered is contained in the facts stated in the White Paper on
Ayodhya, February 1993, issued by the Government of India.
3. Certain undisputed facts emerging at the hearing may also have
relevance for this purpose. These questions are answered on this basis,
eschewing facts which are in the area of controversy and have yet to be
adjudicated.
BACKGROUND
4. The Bill was introduced in Parliament leading to the above enactment
and the said Reference to this Court was made in the historical background
set out in the White Paper. Indeed, the two simultaneous acts are an
2
indication of the legislative intent for enactment of the statute, the reference
being made as a part of the same exercise with a view to effectuate the
purpose of the enactment. This is how, they have to be viewed.
5. The "Overview" at the commencement of the White Paper in Chapter
1 states thus:-
"1.1 Ayodhya situated in the north of India is a township in District
Faizabad of Uttar Pradesh. It has long been a place of holy pilgrimage
because of its mention in the epic Ramayana as the place of birth of Shri
Ram. The structure commonly known as Ram Janma Bhoomi-Babri Masjid
was erected as a mosque by one Mir Baqi in Ayodhya in 1528 A. D. It is
claimed by some sections that it was built at the site believed to be the birth-
spot of Shri Ram where a temple had stood earlier. This resulted in a long-
standing dispute.
1.2 The controversy entered a new phase with the placing of idols in
the disputed structure in December, 1949. The premises were attached under
S. 145 of the Code of Criminal Procedure. Civil suits were filed shortly
thereafter. Interim orders in these civil suits restrained the parties from
removing the idols or interfering with their worship. In effect, therefore,
from December, 1949 till December 6, 1992 the structure had not been used
as a mosque."
6. The movement to construct a Ram temple at the site of the disputed
structure gathered momentum in recent years which became a matter of great
controversy and a source of tension. This led to several parleys the details of
which are not very material for the present purpose. These parleys
involving the Vishva Hindu Parishad (VHP) and the All India Babri Masjid
Action Committee (AIBMAC), however, failed to resolve the
3
dispute. A new dimension was added to the campaign for construction of the
temple with the formation of the Government in Uttar Pradesh in June 1991
by the Bhartiya Janata Party (BJP) which declared its commitment to the
construction of the temple and took certain steps like the acquisition of land
adjoining the disputed structure while leaving out the disputed structure itself
from the acquisition. The focus of the temple construction movement from
October 1991 was to start construction of the temple by way of 'kar-sewa' on
the land acquired by the Government of Uttar Pradesh while leaving the
disputed structure intact. This attempt did not succeed and there was
litigation in the Allahabad High Court as well as in this Court. There was a
call for resumption of kar sewa from 6th December, 1992 and the
announcement made by the organisers was for a symbolic kar sewa without
violation of the court orders including those made in the proceedings
pending in this Court. In spite of initial reports from Ayodhya on 6th
December, 1992 indicating an air of normalcy, around mid-day a crowd
addressed by leaders of BJP, VHP, etc., climbed the Ram Janma Bhumi-
Babri Masjid (RJB-BM) structure and started damaging the domes. Within a
short time, the entire structure was demolished and razed to the ground.
Indeed, it was an act of "National shame". What was demolished was not
merely an ancient structure; but the faith of the minorities in the sense of
justice and fair play of majority. It shook their faith in the rule of law and
constitutional processes. A five hundred year old structure which was
defenceless and whose safety was a sacred trust in the hands of the State
Government was demolished.
7. After referring to the details on this tragedy, the White Paper in Chapter 1
on "OVERVIEW" concludes thus :-
4
"1.35. The demolition of the Ram Janma Bhoomi-Babri Masjid
structure at Ayodhya on 6th December, 1992 was a most reprehensible act.
The perpetrators of this deed struck not only against a place of worship, but
also at the principles of secularism, democracy and the rule of law enshrined
in our Constitution. In a move as sudden as it was shameful, a few thousand
people managed to outrage the sentiments of millions of Indians of all
communities who have reacted to this incident with anguish and dismay.
1.36 What happened on December 6, 1992 was not a failure of the
system as a whole, nor of the wisdom inherent in India's Constitution, nor
yet of the power of tolerance, brotherhood and compassion that has so
vividly informed the life of independent India. It was, the Supreme Court
observed on that day, "a great pity that a Constitutionally elected
Government could not discharge its duties in a matter of this sensitiveness
and magnitude." Commitments to the Court and Constitution, pledges to
Parliament and the people, were simply cast aside. Therein lay the failure,
therein the betrayal.
1.37 Today India seeks to heal, and not reopen its wounds; to look
forward with hope, and not backwards with fear; to reconcile reason with
faith. Above all, India is determined to press ahead with the National
Agenda, undeterred by aberrations."
8. It may be mentioned that a structure called the Ram-chabutra stood
on the disputed site within the courtyard of the disputed structure. This
structure also was demolished on 6th December, 1992 (Appendix-V to the
White Paper). Worship of the idols installed on the Ram-chabutra by Hindu
devotees in general, it appears, had been performed for a considerable period
of time without any objection by the Muslims to its worship at that place,
5
prior to the shifting of the idols from the Ram-chabutra to the disputed
structure in December 1949. As a result of demolition of Ram-chabutra also
on 6th December 1992, the worship by Hindus in general even at that place
was interrupted. Thereafter, the worship of idols is being performed only
by a priest nominated for the purpose without access to the public.
9. A brief reference to certain suits in this connection may now be made.
In 1950 two suits were filed by some Hindus; in one of these suits in January
1950, the trial court passed interim orders whereby the idols remained at the
place where they were installed in December 1949 and their Puja by the
Hindus continued. The interim order was confirmed by the High Court in
April 1955. On 1st February, 1986, the District Judge ordered the opening of
the lock placed on a grill leading to the sanctum-sanctorum of the shrine in
the disputed structure and permitted Puja by the Hindu devotees. In 1959, a
suit was filed by the Nirmohi Akhara claiming title to the disputed structure.
In 1961, another suit was filed claiming title to the disputed structure by the
Sunni Central Wakf Board. In 1989, Deoki Nandan Agrawal, as the next
friend of the Deity filed a title suit in respect of the disputed structure. In
1981, the aforementioned suits were transferred to the Allahabad High Court
and were ordered to be heard together. On 14th August, 1989, the High Court
ordered the maintenance of status quo in respect of the disputed structure
(Appendix-I to the White Paper). As earlier mentioned, it is stated in para 1.2
of the White Paper that :
".....interim orders in these civil suits restrained the parties from
removing the idols or interfering with their worship. In effect, therefore,
from December, 1949 till December 6, 1992 the structure had been used as a
mosque."
6
10. Prior to December 1949 when the idols were shifted into the disputed
structure from the Ram-chabutra, worship by Hindu devotees at the Ram-
chabutra for a long time without any objection from Muslims is also beyond
controversy. A controversy, however, is raised about use of the disputed
structure as a mosque from 1934 to December 1949. One version is that after
some disturbances in 1934, the use of the disputed structure as a mosque had
been stopped from 1934 itself and not merely from December 1949. The
other side disputes the alleged disuse of the mosque for prayers prior to
December 1949. The stand of the Uttar Pradesh Government in the suits was
that the place was used as a mosque till 1949.
11. As a result of the incidents at Ayodhya on 6th December, 1992, the
President of India issued a proclamation under Art. 356 of the Constitution
of India assuming to himself all the functions of the Government of Uttar
Pradesh, dissolving the U.P. Vidhan Sabha. The White Paper in Chapter II
mentions the "BACKGROUND" and therein it is stated as under :
"2.1 At the centre of the RJB-BM dispute is the demand voiced by
Vishwa Hindu Parishad (VHP) and its allied organisations for the restoration
of a site said to be the birth place of Sri Ram in Ayodhya. Till 6th December,
1992 this site was occupied by the structure erected in 1528 by 'Mir Baqi'
who claimed to have built it on orders of the first Mughal Emperor Babar.
This structure has been described in the old Government records as Masjid
Janmasthan. It is now commonly referred to as Ram Janma Bhumi-Babri
Masjid.
2.2 The VHP and its allied organisations base their demand on the
assertion that this site is the birth place of Sri Ram and a Hindu temple
commemorating this site stood here till it was destroyed on Babar's
7
command and a Masjid was erected in its place. The demand of the VHP has
found support from the Bhartiya Janata Party (BJP). The construction of a
Ram temple at the disputed site, after removal or relocation of the existing
structure, was a major plank in BJP's campaign during elections held in 1989
and 1991. Other major political parties, however, had generally opposed this
demand and had taken the stand that while a temple should be built, the
issues in dispute should be resolved either by negotiations or by orders of the
Court.
2.8 During the negotiations aimed at finding an amicable solution to
the dispute, one issue which came to the fore was whether a Hindu temple
had existed on the site occupied by the disputed structure and whether it was
demolished on Babar's orders for the construction of the Masjid. It was
stated on behalf of the Muslim organisations, as well as by certain eminent
historians, that there was no evidence in favour of either of these two
assertions. It was also stated by certain Muslim leaders that if these
assertions were proved, the Muslims would voluntarily handover the
disputed shrine to the Hindus. Naturally, this became the central issue in the
negotiations between the VHP and AIBMAC.
** ** ** ** **
2.12 The historical debate has thus remained inconclusive although
much progress has been made in identifying the areas of agreement and
difference. Conclusive findings can be obtained only by way of reference to
a competent authority. However, as brought out elsewhere in this Paper the
negotiations were disrupted at a crucial phase. Now, the entire evidence has
disappeared along with the disputed structure. It is tragic and ironical that the
Ram-chabutra and Kaushalya Rasoi, which continued as places of
8
worship during periods of Muslim and British rule have disappeared along
with the RJB-BM structure at the hands of people professing to be 'devotees'
of Lord Ram.
PLACING OF IDOLS IN THE DISPUTED STRUCTURE
2.13 As has been mentioned above, Hindu structures of worship
already existed in the outer courtyard of the RJB-BM structure. On the night
of 22nd/23rd December, 1949, however, Hindu idols were placed under the
central dome of the main structure. Worship of these idols was started on a
big scale from the next morning. As this was likely to disturb the public
peace, the civil administration attached the premises under Section 145 of
the Code of Criminal Procedure. This was the starting point of a whole chain
of events which ultimately led to the demolition of the structure. The main
events of this chain have been summarised in Appendix-I.
2.14 Soon after the installation of the idols two civil suits were filed by
Hindu plaintiffs seeking to restrain the Administration from removing the
idols from the disputed structure or placing any restrictions in the way of
devotees intending to offer worship. Interim injunctions were issued by the
civil court to this effect. These injunctions were confirmed by the Allahabad
High Court in 1955.
2.15 The Hindu Idols thus continued inside the disputed structure since 1949.
Worship of these idols by Hindus also continued without interruption since
1949 and the structure was not used by the Muslims for offering prayers
since then. The controversy remained at a low ebb till 1986 when the District
Court of Faizabad ordered opening of the lock placed on a grill leading to
the sanctum-sanctorum of the shrine. An organisation called the Babri
Masjid Action Committee (BMAC), seeking restoration of the
9
disputed shrine to the Muslims came into being and lunched a protest
movement. The Hindu organisations, on the other hand, stepped up their
activities to mobilise public opinion for the construction of a Ram temple at
the disputed site."
12. After the imposition of President's rule in the State of Uttar Pradesh as
a consequence of the events at Ayodhya on 6th December, 1992, action taken
by the Central Government is detailed in Chapter VIII of the White Paper
with reference to the communal situation in the country which deteriorated
sharply following the demolition of the RJB-BM structure on 6th December,
1992 and spread of communal violence in several other States. Para 8.11 in
Chapter VIII relating to the "ACTION TAKEN BY THE CENTRAL
GOVERNMENT" is as under :-
"8.11 Mention has been made above (Overview) of the decisions
taken on 7th December by the Government to ban communal organisations,
to take strong action for prosecution of the offences connected with the
demolition, to fix responsibilities of various authorities for their lapses
relating to the events of December 6, to rebuild the demolished structure and
to take appropriate steps regarding new Ram Temple. The last two decisions
were further elaborated on 27
th
December as follows :
"The Government has decided to acquire all areas in dispute in the
suits pending in the Allahabad High Court. It has also been decided to
acquire suitable adjacent area. The acquired area excluding the area on
which the disputed structure stood would be made available to two Trusts
which would be set up for construction of a Ram Temple and a Mosque
respectively and for planned development of the area.
10
"The Government of India has also decided to request the President to
seek the opinion of the Supreme Court on the question whether there was a
Hindu temple existing on the site where the disputed structure stood. The
Government has also decided to abide by the opinion of the Supreme Court
and to take appropriate steps to enforce the Court's opinion. Notwithstanding
the acquisition of the disputed area, the Government would ensure that the
position existing prior to the promulgation of the Ordinance is maintained
until such time as the Supreme Court gives its opinion in the matter.
Thereafter the rights of the parties shall be determined in the light of the
Court's opinion."
In pursuance of these decisions an Ordinance named 'Acquisition of
Certain Area at Ayodhya Ordinance' was issued on 7th January, 1993 for
acquisition of 67.703 acres of land in the Ram Janma Bhoomi-Babri Masjid
complex. A reference to the Supreme Court under Art. 143 of the
Constitution was also made on the same day. Copy of the Ordinance is at
Appendix-XV and of the Reference at Appendix-XVI."
13. The Acquisition of Certain Area at Ayodhya Ordinance, 1993 (No. 8 of
1993) has been replaced by the Acquisition of Certain Area at Ayodhya Act,
1993 (No. 33 of 1993), the constitutional validity of which has to be
examined by us.
14. The said Ordinance, later replaced by Act No. 33 of 1993, and the
Special Reference under Art. 143(1) of the Constitution of India were made
simultaneously the same day on 7th January, 1993. It would be appropriate at
this stage to quote, in extenso, the Statement of Objects and Reasons for this
enactment, the said Act No. 33 of 1993, and the Special Reference under Art.
143(1) of the Constitution:
11
"STATEMENT OF OBJECTS AND REASONS
There has been a long-standing dispute relating to the erstwhile Ram Janma
Bhumi-Babri Masjid structure in Ayodhya which led to communal tension
and violence from time to time and ultimately led to the destruction of the
disputed structure on 6th December, 1992. This was followed by wide-
spread communal violence which resulted in large number of deaths, injuries
and destruction of property in various parts of the country. The said dispute
has thus affected the maintenance of public order and harmony between
different communities in the country. As it is necessary to maintain
communal harmony and the spirit of common brotherhood amongst the
people of India, it was considered necessary to acquire the site of the
disputed structure and suitable adjacent land for setting up a complex which
could be developed in a planned manner wherein a Ram temple, a mosque,
amenities for pilgrims, a library, museum and other suitable facilities can be
set up.
2. The Acquisition of Certain Area at Ayodhya Ordinance, 1993 was
accordingly promulgated by the President on 7th January, 1993. By virtue of
the said Ordinance the right, title and interest in respect of certain areas at
Ayodhya specified in the Schedule to the Ordinance stand transferred to, and
vest in, the Central Government.
3. The Bill seeks to replace the aforesaid Ordinance.
S. B. CHAVAN.
NEW DELHI,
The 9th March, 1993."
SPECIAL REFERENCE
12
WHEREAS a dispute has arisen whether a Hindu temple or any
Hindu religious structure existed prior to the construction of the structure
(including the premises of the inner and outer courtyards of such
structure), commonly known as the Ram Janma Bhumi-Babri Masjid, in the
area in which the structure stood in village Kot Ramachandra in Ayodhya, in
Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad
of the State of Uttar Pradesh;
2. AND WHEREAS the said area is located in Revenue Plot Nos. 159 and
160 in the said village Kot Ramchandra;
3. AND WHEREAS the said dispute has affected the maintenance of public
order and harmony between different communities in the country;
4. AND WHEREAS the aforesaid area vests in the Central Government by
virtue of the Acquisition of Certain Area at Ayodhya Ordinance, 1993;
5. AND WHEREAS notwithstanding the vesting of the aforesaid area in the
Central Government under the said Ordinance the Central Government
proposes to settle the said dispute after obtaining the opinion of the Supreme
Court of India and in terms of the said opinion;
6. AND WHEREAS in view of what has been hereinbefore stated it appears
to me that the question hereinafter set out has arisen and is of such a nature
and of such public importance that it is expedient to obtain the opinion of the
Supreme Court of India thereon;
7. NOW, THEREFORE, in exercise of the powers conferred upon me by
clause (1) of Art. 143 of the Constitution of India, I, Shanker Dayal Sharma,
President of India, hereby refer the following question to the Supreme Court
of India for consideration and opinion thereon, namely :
13
Whether a Hindu temple or any Hindu religious structure existed prior to the
construction of the Ram Janma Bhumi-Babri Masjid (including the premises
of the inner and outer courtyards of such structure) in the area on which the
structure stood?
Sd/-
President of India
New Delhi:
Dated 7th January, 1993."
THE ACQUISITION OF CERTAIN AREA AT AYODHYA ACT, 1993
(NO. 33 OF 1993)
(3rd April, 1993)
An Act to provide for the acquisition of certain area at Ayodhya and
for matters connected therewith or incidental thereto.
WHEREAS there has been a long-standing dispute relating to the
structure (including the premises of the inner and outer courtyards of such
structure), commonly known as the Ram Janma Bhumi-Babri Masjid,
situated in village Kot Ramachandra in Ayodhya, in Pargana Haveli Avadh,
in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar
Pradesh;
AND WHEREAS the said dispute has affected the maintenance of
public order and harmony between different communities in the country;
AND WHEREAS it is necessary to maintain public order and to
promote communal harmony and the spirit of common brotherhood amongst
the people of India;
AND WHEREAS with a view to achieving the aforesaid objectives, it
is necessary to acquire certain areas in Ayodhya;
14
BE it enacted by Parliament in the Forty fourth Year of the Republic of India
as follows :-
CHAPTER I
PRELIMINARY
1. Short title and commencement. -(1) This Act may be called the
Acquisition of Certain Area at Ayodhya Act, 1993.
(2) It shall be deemed to have come into force on the 7th day of January,
1993.
2. Definitions. -In this Act unless the context otherwise requires,-
(a) "area" means the area (including all the buildings, structures or other
properties comprised therein) specified in the Schedule;
(b) "authorised person" means a person or body of persons or trustees of any
trust authorised by the Central Government under S. 7;
(c) "Claims Commissioner" means the Claims Commissioner appointed
under sub-section (2) of Section 8;
(d) "prescribed" means prescribed by rules made under this Act.
CHAPTER II
ACQUISITION OF THE AREA IN AYODHYA
3. Acquisition of rights in respect of certain area. - On and from the
commencement of this Act, the right, title and interest in relation to the area
shall, by virtue of this Act, stand transferred to, and vest in, the Central
Government.
4. General effect of vesting.-(1) The area shall be deemed to include all
assets, rights, leaseholds, powers, authority and privileges and all property,
movable and immovable, including lands, buildings, structures, shops of
whatever nature or other properties and all other rights and interests in, or
15
arising out of, such properties as were immediately before the
commencement of this Act in the ownership, possession, power or control of
any person or the State Government of Uttar Pradesh, as the case may be,
and all registers, maps, plans, drawings and other documents of whatever
nature relating thereto.
(2) All properties aforesaid which have vested in the Central Government
under S. 3 shall, by force of such vesting, be freed and discharged from any
trust, obligation, mortgage, charge, lien and all other encumbrances affecting
them and any attachment, injunction decree or order of any court or tribunal
or other authority restricting the use of such properties in any manner or
appointing any receiver in respect of the whole or any part of such properties
shall cease to have any effect.
(3) If, on the commencement of this Act, any suit, appeal of other
proceeding in respect of the right, title and interest relating to any property
which has vested in the Central Government under S. 3, is pending before
any court, tribunal or other authority, the same shall abate.
5. Duty of person or State Government in charge of the management of
the area to deliver all assets, etc.- (1) The Central Government may take all
necessary steps to secure possession of the area which is vested in that
Government under S. 3.
(2) On the vesting of the area in the Central Government under S. 3, the
person or State Government of Uttar Pradesh, as the case may be, in charge
of the management of the area immediately before such vesting shall be
bound to deliver to the Central Government or the authorised person, all
assets, registers and other documents in their custody relating to such
vesting or where it is not practicable to deliver such registers or documents,
16
the copies of such registers or documents authenticated in the prescribed
manner.
6. Power of Central Government to direct vesting of the area in another
authority or body or trust.- (1) Notwithstanding anything contained in Ss. 3,
4, 5 and 7, the Central Government may, if it is satisfied that any authority or
other body, or trustees of any trust, set up on or after the commencement of
this Act is or are willing to comply with such terms and conditions as that
Government may think fit to impose, direct by notification in the Official
Gazette, that the right, title and interest or any of them in relation to the area
or any part thereof, instead of continuing to vest in the Central Government,
vest in that authority or body or trustees of that trust either on the date of the
notification or on such later date as may be specified in the notification.
(2) When any right, title and interest in relation to the area or part thereof
vest in the authority or body or trustees referred to in sub-sec. (1), such rights
of the Central Government in relation to such area or part thereof, shall, on
and from the date of such vesting, be deemed to have become the rights of
that authority or body or trustees of that trust.
(3) The provisions of Ss. 4, 5, 7 and 11 shall, so far as may be, apply in
relation to such authority or body or trustees as they apply in relation to the
Central Government and for this purpose references therein to the "Central
Government" shall be construed as references to such authority or body or
trustees.
CHAPTER III
MANAGEMENT AND ADMINISTRATION OF PROPERTY
7. Management of property Government.- (1) Notwithstanding anything
contained in any contract or instrument or order of any court, tribunal or
17
other authority to the contrary, on and from the commencement of this Act,
the property vested in the Central Government under S. 3 shall be managed
by the Central Government or by a person or body of persons or trustees of
any trust authorised by that Government in this behalf.
(2) In managing the property vested in the Central Government under S.
3, the Central Government or the authorised person shall ensure that the
position existing before the commencement of this Act in the area on 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 in village Kot Ramachandra in Ayodhya, in Pargana Haveli Avadh, in
Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar
Pradesh is maintained.
CHAPTER IV
MISCELLANEOUS
8. Payment of amount,- (1) The owner of any land, building, structure or
other property comprised in the area shall be given by the Central
Government, for the transfer to and vesting in that Government under S. 3 of
that land, building, structure or other property, in cash an amount equivalent
to the market value of the land, building, structure or other property.
(2) The Central Government shall, for the purpose of deciding the claim
of the owner or any person having a claim against the owner under sub-sec.
(1), by notification in the Official Gazette, appoint a Claims Commissioner.
(3) The Claims Commissioner shall regulate his own procedure for
receiving and deciding the claims.
18
(4) The owner or any person having a claim against the owner may make
a claim to the Claims Commissioner within a period of ninety days from the
date of commencement of this Act;
Provided that if the Claims Commissioner is satisfied that the claimant
was prevented by sufficient cause from preferring the claim within the said
period of ninety days, the Claims Commissioner may entertain the claim
within a further period of ninety days and not thereafter.
9. Act to override all 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 or any decree or order of any court,
tribunal or other authority.
10. Penalties.- Any person who is in charge of the management of the
area and fails to deliver to the Central Government or the authorised person
any asset, register or other document in his custody relating to such area or,
as the case may be, authenticated copies of such register or document, shall
be punishable with imprisonment for a term which may extend to three years
or with fine which may extend to ten thousand rupees, or with both.
11. Protection of action taken in good faith.- No suit, prosecution or other
legal proceeding shall lie against the Central Government or the authorised
person or any of the officers or other employees of that Government or the
authorised person for anything which is in good faith done or intended to be
done under this Act.
12. Power to make rules.- (1) The Central Government may, by
notification in the Official Gazette, make rules to carry out the provisions of
this Act.
19
(2) Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of Parliament,
while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if,
before the expiry of the sessions immediately following the session or the
successive sessions aforesaid, both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or be
of no effect, as the case may be; so however, that any such modification or
annulment shall be without prejudice to the validity of anything previously
done under that rule:
13. Repeal and saving.- (1) Subject to the provisions of sub-section (2),
the Acquisition of Certain Area at Ayodhya Ordinance, 1993 (Order 8 of
1993), is hereby repealed.
(2) Notwithstanding anything contained in the said Ordinance,-
(a) the right, title and interest in relation to plot No. 242 situated in village
Kot Ramachandra specified against Sl. No. 1 of the Schedule to the said
Ordinance shall be deemed never to have been transferred to, and vested in,
the Central Government;
(b) any suit, appeal or other proceeding in respect of the right, title and
interest relating to the said plot No. 242, pending before any court, tribunal
or other authority, shall be deemed never to have abated and such suit, appeal
or other proceeding (including the orders or interim orders of any court
thereon) shall be deemed to have been restored to the position existing
immediately before the commencement of the said Ordinance;
20
(c) any other action taken or thing done under that Ordinance in relation
to the said plot No. 242 shall be deemed never to have been taken or done.
(3) Notwithstanding such repeal, anything done or any action taken under
the said Ordinance shall be deemed to have been done or taken under the
corresponding provisions of this Act.
THE SCHEDULE
(See Section 2(a))
DESCRIPTION OF THE AREA
xxx xxx xxx"
15. At the hearing, it was strenuously urged that the question of fact
referred under Article 143(1) of the Constitution is vague; the answer to it is
by itself not decisive of the real controversy since the core question has not
been referred; and it also gives no definite indication of the manner in which
the Central Government intends to act after the Special Reference is
answered, to settle the dispute. It was urged that the question referred is,
therefore, academic, apart from being vague, and it does not serve any
constitutional purpose to subserve which the advisory jurisdiction of this
Court could be invoked; that the real object and purpose of reference is to
take away a place of worship of the Muslims and give it away to the Hindus
offending the basic feature of secularism; and that, therefore, we should
decline to answer the Special Reference. The learned Solicitor General who
appeared for the Union of India was asked to clarify the stand of the Central
Government on this point. Initially, it was stated by the learned Solicitor
General that the answer to the question would provide the basis for further
negotiations between the different groups to settle the controversy and the
Central Government would then be able to decide the effective course
21
available to it for resolving the controversy. On being asked to further clarify
the stand of the Central Government about the purpose of the Special
Reference, the learned Solicitor General made a statement in writing on
behalf of the Union of India on 14th September, 1994 as under :-
"Government stands by the policy of secularism and of even-handed
treatment of all religious communities. The Acquisition of Certain Area at
Ayodhya Act, 1993, as well as the Presidential Reference, have the objective
of maintaining public order and promoting communal harmony and the spirit
of common brotherhood amongst the people of India.
Government is committed to the construction of a Ram temple and a
mosque, but their actual location will be determined only after the Supreme
Court renders its opinion in the Presidential Reference.
Government will treat the finding of the Supreme Court on the
question of fact referred under Art. 143 of the Constitution as a verdict which
is final and binding.
In the light of the Supreme Court's (sic) opinion and consistent with it,
Government will make efforts to resolve the controversy by a process of
negotiations. Government is confident that the opinion of the Supreme Court
will have a salutary effect on the attitudes of the communities and they will
no longer take conflicting positions on the factual issue settled by the
Supreme Court.
If efforts at a negotiated settlement as aforesaid do not succeed,
Government is committed to enforce a solution in the light of the Supreme
Court's opinion and consistent with it. Government's action in this regard
will be even-handed in respect of both the communities. If the question
referred is answered in the affirmative, namely, that a Hindu temple /
22
structure did exist prior to the construction of the demolished structure,
Government action will be in support of the wishes of the Hindu community.
If, on the other hand, the question is answered in the negative, namely, that
no such Hindu temple / structure existed at the relevant time, then
Government action will be in support of the wishes of the Muslim
community."
This statement in writing made by the learned Solicitor General on
behalf of the Union of India forms a part of the record and has to be taken
into account to indicate the purpose for which the Special Reference under
Art. 143(1) has been made to this Court.
16. The dispute and its background are mentioned in paras 2.1, 2.2, and
2.3 of Chapter II of the White Paper quoted earlier. This is the backdrop in
which the constitutional validity of Act No. 33 of 1993 and the
maintainability of the Special Reference made under Art. 143(1) of the
Constitution of India have to be examined.
VALIDITY OF ACT NO. 33 OF 1993
17. Broadly stated, the focus of challenge to the statute as a whole is on
the grounds of secularism, right to equality and right to freedom of religion.
Challenge to the acquisition of the area in excess of the disputed area is in
addition on the ground that the acquisition was unnecessary being unrelated
to the dispute pertaining to the small disputed area within it. A larger
argument advanced on behalf of some of the parties who have assailed the
act with considerable vehemence is that a mosque being a place of religious
worship by the Muslims, independently of whether the acquisition did affect
the right to practise religion, is wholly immune from the State's power of
acquisition and the statute is, therefore, unconstitutional as violative of
23
Articles 25 and 26 of the Constitution of India for this reason alone. The
others, however, limited this argument of immunity from acquisition only to
places of special significance, forming an essential and integral part of the
right to practise the religion, the acquisition of which would result in the
extinction of the right to freedom of religion itself. It was also contended that
the purpose of acquisition in the present case does not bring the statute
within the ambit of Entry 42, List III but is referable to Entry 1, List II and,
therefore, the Parliament did not have the competence to enact the same. It
was then urged by learned counsel canvassing the Muslim interest that the
legislation is tilted heavily in favour of the Hindu interests and, therefore,
suffers from the vice of non-secularism and discrimination in addition to
violation of the right to freedom of religion of the Muslim community. It was
also urged by them that the Central Government, after the Prime Minister's
statement made on 7th December, 1992, to rebuild the demolished structure
(para 1.22 in Chapter I of the White Paper) resiled from the same and by
incorporating certain provisions in the statute has sought to perpetuate the
injustice done to the Muslim community by the act of vandalism of
demolition of the structure at Ayodhya on 6th December, 1992. On behalf of
the Muslim community, it is urged that the statute read in the context of
the content of the question referred under Article 143(1) of the Constitution,
as it must be, is a mere veiled concealment of a device adopted by the
Central Government to perpetuate the consequences of the demolition of the
mosque on 6th December, 1992. The grievance of the Hindu opponents is
that the mischief and acts of vandalism committed by a few are being
attributed to the entire Hindu community the majority of whom is equally
hurt by, and critical of, the shameful act. They urge that this
24
disapproval by the majority community is evident from the result of the
subsequent elections in which the Bhartiya Janata Party was rejected at the
hustings by the Hindu majority. They also submit that the fact of demolition
of Hindu structures like the Ram-chabutra and Kaushalya Rasoi which stood
since ages in the disputed site resulting in interruption of even the undisputed
right of worship of Hindus within that area is being ignored. It is also
contended that there is no justification for acquisition of any property in
excess of the disputed area and, therefore, the acquisition at least of the
excess area belonging, admittedly, to Hindus is invalid.
18. On behalf of the Central Government, it is urged that in the existing
situation and in view of the widespread communal flare-up throughout the
country on account of the events at Ayodhya of 6th December, 1992, the
most appropriate course, in the opinion of the Central Government, was to
make this acquisition along with the Special Reference to decide the
question which would facilitate a negotiated solution of the problem, and if it
failed, to enable the Central Government to take any other appropriate action
to resolve the controversy and restore communal harmony in the country. It
was made clear that acquisition of the disputed area was not meant to
deprive the community found entitled to it, of the same, or to retain any part
of the excess area which was not necessary for a proper resolution of the
dispute or to effectuate the purpose of the acquisition, it was submitted that
an assurance of communal harmony throughout the country was a prime
constitutional purpose and avoidance of escalation of the dispute in the wake
of the incident at Ayodhya on 6th December, 1992 was an essential step in
that direction, which undoubtedly promotes the creed of secularism instead
of impairing it. It was submitted that the charge levelled
25
against the Central Government of discrimination against any religious
community or of anti-secularism is wholly unwarranted.
19. Another argument advanced on behalf of the Muslim community was
that the defences open to the minority community in the suits filed by the
other side including that of adverse possession by virtue of long possession
of the disputed site for over 400 years since its construction in 1528 A. D.
have also been extinguished by the acquisition, giving an unfair advantage to
the other side. It was also urged that the core question in the dispute between
the parties was not the subject-matter of the Special Reference made under
Article 143(1) of the Constitution and, therefore, answer to the same would
not result in a resolution of the dispute between the parties to the suits. It was
accordingly urged, there is deprivation of the judicial remedy for
adjudication of the dispute without the substitution of an alternate dispute
resolution mechanism, which is impermissiable under the Constitution.
20. It is appropriate at this stage to refer to the provisions of the statute
before we deal with the arguments challenging its constitutional validity. The
Statement of Objects and Reasons says that there is a long-standing dispute
relating to the disputed structure in Ayodhya which led to communal tension
and violence from time to time and ultimately has led to the destruction of
the disputed structure on 6th December, 1992 followed by widespread
communal violence resulting in loss of many lives and destruction of
property throughout the country. The said dispute has thus affected the
maintenance of public order and communal harmony in the country.
Obviously, it is necessary to maintain and promote communal harmony and
fraternity amongst the people of India. With this objective in view it was
considered necessary to acquire the site of the disputed structure
26
and the requisite adjacent area to be utilised in an appropriate manner to
achieve this object. For this purpose, the Acquisition of Certain Area at
Ayodhya Ordinance, 1993 was promulgated by the President on 7th January,
1993 and, simultaneously, on the same day, this Reference was also made by
the President to this Court under Article 143 (1) of the Constitution. The said
Ordinance was replaced by the Acquisition of Certain Area at Ayodhya Act,
1993 (No. 33 of 1993) to the same effect, and Section 1(2) provides that the
Act shall be deemed to have come into force on the 7th January, 1993. The
provisions of the said Act are now considered.
21. Section 3 provides for acquisition of rights in relation to the area
defined in Section 2(a). It says that on and from the commencement of this
Act the right, title and interest in relation to the area shall, by virtue of this
Act, stand transferred to, and vest in, the Central Government. It is well-
settled that the meaning of vest takes colour from the context in which it is
used and it is not necessarily the same in every provision or in every context.
In Maharaj Singh v. State of U.P., it was held: (SCR p. 1081 : SCC pp. 164-
65, para 16)
"Is such a construction of 'vesting' in two different senses in the same
section, sound? Yes. It is, because 'vesting' is a word of slippery import and
has many meanings. The context controls the text and the purpose and
scheme project the particular semantic shade or nuance of meaning. That is
why even definition clauses allow themselves to be modified by contextual
compulsions...."
The meaning of vest in Section 3 and in Section 6 is of significance in
the context of the constitutional validity of the statute. It can vary in
27
different parts of the statute or even the same Section, depending on the
context of its use.
22. Section 4 then provides the general effect of vesting. Obviously, the
effect of vesting will depend on the meaning of the word vest used in Section
3 and the kind of vesting in the present context. Sub-section (1) of Section 4
provides that the area shall be deemed to include all assets, rights, etc.
specified therein of whatever nature relating thereto. Sub-section (2) further
says that all properties aforesaid which have vested in the Central
Government under Section 3 shall, by force of such vesting, be freed and
discharged from all encumbrances affecting them and any attachment,
injunction, decree or order of any Court of tribunal or other authority
restricting the use of such properties in any manner or appointing any
receiver in respect of the whole or any part of the property shall cease to
have effect. In other words, the effect of such vesting is to free all properties
aforesaid which have vested in the Central Government under Section 3 of
all encumbrances and the consequence of any order of any Court or tribunal
of any kind restricting their user in any manner. Sub-section (3) of Section 4
provides for abatement of all pending suits and legal proceedings. The
meaning of the word vest in Section 3 has a bearing on the validity of this
provision since the consequence of abatement of suits etc. provided therein is
relatable only to absolute vesting of the disputed area which is the subject-
matter of the suits and not to a situation where the vesting under Section 3 is
of a limited nature for a particular purpose, and is of limited duration till the
happening of a future event. Section 5 indicates the duty of the person or
State Government in charge of the management of the area to deliver all
assets etc. to the Central Government on such vesting. Sub-section (1)
28
empowers the Central Government to take all necessary steps to secure
possession of the area which is vested in the Central Government under
Section 3. Sub-section (2) obliges the person or State Government of Uttar
Pradesh, as the case may be, in charge of the management of the area
immediately before such vesting to deliver to the Central Government or the
authorised person all assets etc. in their custody relating to such vesting. In
short, Section 5 provides the consequential action to be taken by the Central
Government with the corresponding obligation of the person or State
Government in charge of the management of the area to deliver possession
of the area, together with its management, to the Central Government, on
such vesting.
23. Then comes Section 6 which is the last Section in Chapter II, to which
detailed reference would be made later. At this stage a general reference to
its contents is sufficient. Section 6 contains the power of Central
Government to direct vesting of the area in another authority or body or
trust. Sub-section (1) provides that the Central Government may,
notwithstanding anything contained in Sections 3, 4, 5 and 7, direct by
notification in the Official Gazette, that the right, title and interest or any of
them in relation to the area or any part thereof, instead of continuing to vest
in the Central Government, vest in that authority or body or trustees of that
trust from the specified date, if it is satisfied that the same is willing to
comply with such terms and conditions as the Central Government may
think fit to impose. In short, sub-section (1) empowers the Central
Government to transfer its right, title and interest or any of them in the area
or any part thereof to any authority or other body or trustees of any trust on
such terms and conditions as it may think fit to impose, instead of continuing
29
to retain the same itself. Sub-section (2) provides for the consequences of the
action taken under sub-section (1) giving recognition to the statutory transfer
effected by the Central Government to effectuate the purpose of such transfer
by the Central Government by declaring that the transferee would then step
into the shoes of the Central Government acquiring the same right, title and
interest in the area or part thereof which by virtue of the enactment had
earlier vested in the Central Government. Sub-section (2) is another
consequence of the action taken under sub-section (1) and provides that
Sections 4, 5, 7 and 11, so far as may be, would apply to such transferee as
they apply in relation to the Central Government. It may here be recalled that
Section 4 relates to the effect of vesting under Section 3; Section 5 to the
duty of the person or State in charge of the management of the area to deliver
possession etc. to the Central Government or the authorised person; Section
7 to the management and the administration of property by the Central
Government on its vesting; and Section 11 gives protection to action taken in
good faith by the Central Government or the authorised person or any one
acting on its behalf under this Act.
24. Chapter III contains Section 7 alone which would be considered at
length later in view of the serious challenge made to its constitutional
validity. This Section deals with the management and administration of the
property by the Central Government, on its vesting. Sub-section (1) provides
for management of the property vested in the Central Government under
Section 3 by the Central Government or by any authorised person, on such
vesting, notwithstanding anything to the contrary contained in any contract
or instrument or order of any Court, tribunal or other authority. In other
words, inspite of any contrary provision in any contract or instrument or
30
order of any Court, tribunal or other authority, from the commencement of
this act, the management of the property vested in the Central Government
under Section 3 shall be by the Central Government or by an authorised
person, so authorised by the Government in its behalf and none else. This
provision expressly supersedes any earlier provision relating to the
management of the property so vested in the Central Government, Sub-
section (2) then provides for the manner of the management of the property
by the Central Government or the authorised person. It mandates the Central
Government or the authorised person, in managing the property vested in the
Central Government under Section 3, to ensure that the position existing
before the commencement of this Act "in the area on 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"
is maintained. This means that the power of management of the Central
Government or the authorised person under sub-section (1) of Section 7 is
coupled with the duty contained in the mandate given by sub-section (2). The
mandate is that in managing the property so vested in the Central
Government, the Central Government or the authorised person shall ensure
maintenance of the status quo "in the area on 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". There was some
debate as to the meaning of the word area in this context. One construction
suggested was that the word area used in this expression has the same
meaning as in the definition contained in Section 2(a), that is, the entire area
specified in the Schedule to the Act. Section 2 itself says that the definitions
therein give the meaning of the words defined "unless the context
31
otherwise requires". The context in which the word area is used in the
expression in Section 7(2) gives the clear indication that its meaning is not
the same as in Section 2(a) to mean the entire area specified in the Schedule
since the words which follow qualify its meaning confining it only to the site
on which this structure, commonly known as the Ram Janma Bhumi-Babri
Masjid stood, which site or area is undoubtedly smaller and within "the area
specified in the Schedule".
25. Chapter IV contains the miscellaneous provisions. Therein Section 8
provides for payment of amount equivalent to the market value of the land,
building, structure or other property by the Central Government for the
transfer to, and vesting of the property in, the Government under Section 3,
to its owner. Remaining part of Section 8 contains the machinery provisions
for payment of the amount. Section 9 gives the overriding effect of the
provisions of this Act on any other law or decree or order of any Court,
tribunal or other authority. Section 10 provides for penalties. It says that any
person who is in charge of the management of the area and fails to deliver to
the Central Government or the authorised person the possession etc. required
under this Act shall be punishable in the manner provided. Section 11 gives
protection to the Central Government or the authorised person or any one
acting on its behalf for anything done or intended to be done under this act in
good faith. Section 12 contains the rule-making power of the Central
Government to carry out the provisions of this Act and the manner in which
the rules are to be made. Section 13 is the last section of the Act providing
for repeal of the earlier Ordinance and savings.
26. The foregoing is a brief resume of the provisions of Act No. 33 of
1993, the constitutional validity of which has to be examined in the light of
32
the grounds of challenge. The meaning of the word vest in Section 2 and the
kind of vesting contemplated thereby, the effect of vesting including
abatement of all pending suits and legal proceedings, according to Section 4,
the power of Central Government to direct vesting of the area or any part
thereof in another anauthority or body or trust and its effect according to
Section 6, and Section 7 providing for management of property by the
Central Government or the authorised person are the provisions of particular
significance for deciding the question of constitutionality. Section 8 also is of
some significance in this context.
27. We may now proceed to consider the merits of the grounds on which
the Act is assailed as constitutionally invalid.
LEGISLATIVE COMPETENCE
28. The legislative competence is traceable to Entry 42, List III and the
State of Uttar Pradesh being under President's rule at the relevant time, the
legislative competence of the Parliament, in the circumstances, cannot be
doubted. That apart, the pith and substance of the legislation is "acquisition
of property" and that falls squarely within the ambit of Entry 42, List III.
Competing entry set up is Entry 1, List II relating to "public order".
"Acquisition of property" and not "public order" is the pith and substance of
the statute.
29. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of
Darbhanga, 1952 SCR 889 : (AIR 1952 SC 252), it was pointed out that
where the dominant purpose of the act was that of transference to the State of
the interests of the proprietors and tenure holders of the land, the pith and
substance of the legislation was the transference of ownership to the State
Government and it was an "acquisition" Act. In Dy. Commissioner and
33
Collector v. Durga Nath Sarma, (1968) 1 SCR 561 : (AIR 1968 SC 394),
Bachawat, J. pointed out that a law for permanent acquisition of property
is not a law for promotion of public health etc. since only the taking of
temporary possession of private properties can be regarded as a law for
promotion of public health.
30. It is significant to bear in mind that Entry 42, List III, as it now exists,
was substituted by the Constitution (Seventh Amendment) Act to read as
under :-
"Acquisition and requisitioning of property."
Before the Constitution (Seventh Amendment) Act, the relevant entries
read as follows:-
List I, Entry 33 :
33. Acquisition or requisitioning of property for the purposes of the
Union.
List II, Entry 36 :
36. Acquisition or requestioning of property, except for the
purposes of the Union, subject to the provisions of Entry 42 of List III.
List III, Entry 42 :
42. Principles on which compensation for property acquired or
requisitioned for the purposes of the Union or of a State or for any other
public purpose, is to be determined, and the form and the manner in which
such compensation is to be given."
By the amendment so made, Entry 42, List III reads as extracted
earlier while Entry 33, List I and Entry 36, List II have been omitted. The
comprehensive Entry 42 in List III as a result of the Constitution (Seventh
Amendment) Act leaves no doubt that an acquisition Act of this kind falls
34
clearly within the ambit of this Entry and, therefore, the legislative
competence of the Parliament to enact this legislation cannot be doubted.
This ground of challenge is, therefore, rejected.
45. Section 7 as we read it, is a transitory provision, intended to maintain
status quo in the disputed area, till transfer of the property is made by the
Central Government on resolution of the dispute. This is to effectuate the
purpose of that transfer and to make it meaningful avoiding any possibility
of frustration of the exercise as a result of any change in the existing
situation in the disputed area during the interregnum. Unless status quo is
ensured, the final outcome on resolution of the dispute may be frustrated by
any change made in the disputed area which may frustrate the
implementation of the result in favour of the successful party and render it
meaningless. A direction to maintain status quo in the disputed property is a
well-known method and the usual order made during the pendency of a
dispute for preserving the property and protecting the interest of the true
owner till the adjudication is made. A change in the existing situation is
fraught with the danger of prejudicing the rights of the true owner, yet to be
determined. This itself is a clear indication that the exercise made is to find
out the true owner of the disputed area, to maintain status quo therein during
the interregnum and to hand it over to the true owner found entitled to it.
46. The question now is whether the provision in Section 7 containing the
mandate to maintain the status quo existing at the disputed site as on 7th
January, 1993 is a slant in favour of the Hindu community, intended to
perpetuate an injustice done to the Muslim community by demolition of the
mosque on 6th December, 1992 and, therefore, it amounts to an anti-secular
35
or discriminatory act rendering the provision unconstitutional. For this
purpose it is necessary to recall the situation as it existed on 7th January,
1993 along with the significant events leading to that situation. It is
necessary to bear in mind the comparative use of the disputed area and the
right of worship practised therein, by the two communities on 7th January,
1993 and for a significant period immediately preceding it. A reference to the
comparative user during that period by the two communities would indicate
whether the provision in Section 7 directing maintenance of status quo till
resolution of the dispute and the transfer by the Central Government
contemplated by Section 6 is slanted towards the Hindu community to render
the provision violative of the basic feature of secularism or the rights to
equality and freedom of religion.
47 As earlier stated, worship by Hindu devotees of the idols installed on
the Ram Chabutra which stood on the disputed site within the courtyard of
the disputed structure had been performed without any objection by the
Muslims even prior to the shifting of those idols from the Ram Chabutra into
the disputed structure in December 1949; in one of the suits filed in January
1950, the trial court passed interim orders whereby the idols remained at the
place where they were installed in 1949 and worship of the idols there by the
Hindu devotees continued; this interim order was confirmed by the High
Court in April 1955; the District Judge ordered the opening of the lock
placed on a grill leading to the sanctum-sanctorum of the shrine in the
disputed structure on 1st February, 1986 and permitted worship of the idols
there to Hindu devotees; and this situation continued till demolition of the
structure on 6th December, 1992 when Ram Chabutra also was demolished.
36
It was only as a result of the act of demolition on 6th December, 1992 that
the worship by the Hindu devotees in general of the idols at that place was
interrupted. Since the time of demolition, worship of the idols by a pujari
alone is continuing. This is how the right of worship of the idols practised by
Hindu devotees for a long time from much prior to 1949 in the Ram chabutra
within the disputed site has been interrupted since the act of demolition on
6th December, 1992 restricting the worship of the idols since then to only by
one pujari. On the other hand, at least since December 1949, the Muslims
have not been offering worship at any place in the disputed site though, it
may turn out at the trial of the suits that they had a right to do so.
49. The narration of facts indicates that the acquisition of properties under
the Act affects the rights of both the communities and not merely those of the
Muslim community. The interest claimed by the Muslims is only over the
disputed site where the mosque stood before its demolition. The objection of
the Hindus to this claim has to be adjudicated. The remaining entire property
acquired under the Act is such over which no title is claimed by the Muslims.
A large part thereof comprises of properties of Hindus of which the title is
not even in dispute. The justification given for acquisition of the larger area
including the property respecting which title is not disputed is that the same
is necessary to ensure that the final outcome of adjudication should not be
rendered meaningless by the existence of properties belonging to Hindus in
the vicinity of the disputed structure in case the Muslims are found entitled
to the disputed site. This obviously means that in the event of the Muslims
succeeding in the adjudication of the dispute requiring the disputed structure
to be handed over to the Muslim
37
community, their success should not be thwarted by denial of proper access
to, and enjoyment of rights in, the disputed area by exercise of rights of
ownership of Hindu owners of the adjacent properties. Obviously, it is for
this reason that the adjacent area has also been acquired to make available to
the successful party, that part of it which is considered necessary, for proper
enjoyment of the fruits of success on the final outcome to the adjudication. It
is clear that one of the purposes of the acquisition of the adjacent properties
is the ensurement of the effective enjoyment of the disputed site by the
Muslim community in the event of its success in the litigation; and
acquisition of the adjacent area is incidental to the main purpose and cannot
be termed unreasonable. The "Manas Bhawan" and "Sita ki Rasoi", both
belonging to the Hindus, are buildings which closely overlook the disputed
site and are acquired because they are strategic in locations in relation to the
disputed area. The necessity of acquiring adjacent temples or religious
buildings in view of their proximity to the disputed structure area, which
forms a unique class by itself, is permissible. [See M. Padmanabha Iyengar
v. Government of Andhra Pradesh and Akhara Shri Braham Buta Vs. State of
Punjab). We approve the principle stated in these decisions since it serves a
larger purpose.
51. It may also be mentioned that even as Ayodhya is said to be of particular
significance to the Hindus as a place of pilgrimage because of the ancient
belief that Lord Rama was born there, the mosque was of significance for the
Muslim community as an ancient mosque built by Mir Baqi in 1528 A.D. As
a mosque, it was a religious place of worship by the Muslims. This indicates
the comparative significance of the disputed site to
38
the two communities and also that the impact of acquisition is equally on the
right and interest of the Hindu community. Mention of this aspect is made
only in the context of the argument that the statute as a whole, not merely S.7
thereof, is anti-secular being slanted in favour of the Hindus and against the
Muslims.
52. Section 7(2) of the Act freezes the situation admittedly in existence on
7th January, 1993 which was a lesser right of worship for the Hindu devotees
than that in existence earlier for a long time till the demolition of the
disputed structure on 6th December, 1992; and it does not create a new
situation more favourable to the Hindu community amounting to conferment
on them of a larger right of worship in the disputed site than that practised
till 6th December, 1992. Maintenance of status quo as on 7th January, 1993
does not, therefore, confer or have the effect of granting to the Hindu
community any further benefit thereby. It is also pertinent to bear in mind
that the persons responsible for demolition of the mosque on 6th December,
1992 were some miscreants who cannot be identified and equated with the
entire Hindu community and, therefore, the act of vandalism so perpetrated
by the miscreants cannot be treated as an act of the entire Hindu community
for the purpose of adjudging the constitutionality of the enactment. Strong
reaction against, and condemnation by the Hindus of the demolition of the
structure in general bears eloquent testimony to this fact. Rejection of
Bhartiya Janata Party at the hustings in the subsequent elections in Uttar
Pradesh is another circumstance to that effect. The miscreants who
demolished the mosque had no religion, caste or creed except the character
of a criminal and the mere incident of birth of such a person in any particular
39
community cannot attach the stigma of his crime to the community in which
he was born,
61. Sub-section (3) of Section 4 provides for abatement of all pending
suits and legal proceedings in respect of the right, title and interest relating to
any property which has vested in the Central Government under Section 3.
The rival claims to the disputed area which were to be adjudicated in the
pending suits can no longer be determined therein as a result of the
abatement of the suits. This also results in extinction of the several defences
raised by the Muslim community including that of adverse possession of the
disputed area for over 400 years since construction of the mosque there in
1528 A.D. by Mir Baqi. Ostensibly, the alternate dispute resolution
mechanism adopted is that of a simultaneous Reference made the same day
under Article 143(1) of the Constitution to this Court for decision of the
question referred. It is clear from the issues framed in those suits that the
core question for determination in the suits is not covered by the Reference
made, and it also does not include therein the defences raised by the Muslim
community. It is also clear that the answer to the question referred, whatever
it may be, will not lead to the answer of the core question for determination
in the pending suits and it will not, by itself, resolve the long-standing
dispute relating to the disputed area. Reference made under Article 143(1)
cannot, therefore, be treated as an effective alternate dispute resolution
mechanism in substitution of the pending suits which are abated by Section
4(3) of the Act. For this reason, it was urged, that the abatement of pending
suits amounts to denial of the judicial remedy available to the Muslim
community for resolution of the dispute and grant of the relief on that basis
in accordance with the scheme of redress under the rule of law envisaged by
40
the Constitution. The validity of Sub-section (3) of Section 4 is assailed on
this ground.
68. In British India, the right to worship of Muslims in a mosque and
Hindus in a temple had always been recognised as a civil right. Prior to
1950, the Indian Courts in British India had maintained the balance between
the different communities or sects in respect of their right of worship.
69. Even prior to the guarantee of freedom of religion in the Constitution of
India, Chief Justice Turner in Muthialu Chetti v. Bapun Saib, (1880) ILR 2
Madras 140, had held that during the British Administration all religions
were to be treated equally with the State maintaining neutrality having
regard to public welfare. In Sundram Cheti v. The Queen, (1883) ILR 6
Madras 203 (FB) approving ILR 2 Madras 140, Chief Justice Turner said :
"...But with reference to these and to other privileges claimed on the ground
of caste or creed, I may observe that they had their origin in times when a
State religion influenced the public and private law of the country, and are
hardly compatible with the principles which regulate British administration,
the equal rights of all citizens and the complete neutrality of the State in
matters of religion... When anarchy or absolutism yield place to well
ordered liberty, change there must be, but change in a direction which should
command the assent of the intelligence of the country."
70. In Mosque known as Masjid Shahid Ganju v. Shiromani Gurdwara
Prabandhak Committee, Amritsar, AIR 1938 Lahore 369 (FB), it was held
that where a mosque has been adversely possessed by non-Muslims, it lost
its sacred character as mosque. Hence, the view that once a consecrated
mosque, it remains always a place of worship as a mosque was not the
41
Mahomedan Law of India as approved by Indian Courts. It was further held
by the majority that a mosque in India was an immovable property and the
right of worship at a particular place is lost when the right to property on
which it stands is lost by adverse possession. The conclusion reached in the
minority judgment of Din Mohd., J. is not the Mahomedan Law of British
India. The majority view expressed by the learned Chief Justice of Lahore
High Cour was apaproved by the Privy Council in AIR 1940 PC 116, in the
appeal against the said decision of the Lahore High Court. The Privy
Council held :
"........ It is impossible to read into the modern Limitation Acts any exception
for property made wakf for the purposes of mosque whether the purpose be
merely to provide money for the upkeep and conduct of a mosque or to
provide a site and building for the purpose. While their Lordships have
every sympathy with the religious sentiment which would ascribe sanctity
and inviolability to a place of worship, they cannot under the Limitation Act
accept the contentions that such a building cannot be possessed adversely to
the wake, or that it is not so possessed so long as it is referred to as "mosque"
or unless the building is razed to the ground or loses the appearance which
reveals its original purpose." (at page 121)
71. It may also be indicated that the Land Acquisition Act, 1894 is
applicable uniformly to all properties including places of worship. Right of
acquisition thereunder was guided by the express provisions of the Land
Acquisition Act, 1894 and executive instructions were issued to regulate
acquisition of places of worship. Clause 102 of the Manual of Land
Acquisition of the State of Maharashtra which deals with the acquisition of
42
religious places like churches, temples and mosques, is of significance in this
context.
72. The power of acquisition is the sovereign or prerogative power of the
State to acquire property. Such power exists independent of Article 300A of
the Constitution or the earlier Article 31 of the Constitution which merely
indicates the limitations on the power of acquisition by the State. The
Supreme Court from the beginning has consistently upheld the sovereign
power of the State to acquire property. B. K. Mukherjee, J. (as he then was)
held in Chiranjitlal Chowdhuri v. Union of India, 1950 SCR 869 at pages
901-902 : (AIR 1951 SC 41 at pp. 53-54) as under :
" It is a right inherent in every sovereign to take any appropriate private
property belonging to individual citizens for public use. This right, which is
described as eminent domain in American law, is like the power of taxation,
an off-spring of political necessity, and it is supposed to be based upon an
implied reservation by Government that private property acquired by its
citizens under its protection may be taken or its use controlled for public
benefit irrespective of the wishes of the owner........"
73. Patanjali Sastri, C.J., in the State of West Bengal v. Subodh Bose, 1954
SCR 587 at page 605 : (AIR 1954 SC 92 at p. 98) held as under :
"...... and among such powers was included the power of "acquisition or
requisitioning of property" for Union and State purposes entry No. 33 of List
I and No. 36 of List II respectively. Thus, what is called the power of
eminent domain, which is assumed to be inherent in the sovereignty of the
State according to Continental and American jurists and is accordingly not
expressly provided for in the American Constitution, is made the subject of
an express grant in our Constitution. "
43
74. It appears from various decisions rendered by this Court, referred later,
that subject to the protection under Articles 25 and 26 of the Constitution,
places of religious worship like mosques, churches, temples etc. can be
acquired under the State's sovereign power of acquisition. Such acquisition
per se does not violate either Article 25 or Article 26 of the Constitution.
The decisions relating to taking over of the management have no bearing on
the sovereign power of the State to acquire property.
75. Khajamian Wakf Estates v. State of Madras, (1971)2 SCR 790 at page
797 :(AIR 1971 SC 161 at p. 165), has held :
"It was next urged that by acquiring the properties belonging to
religious denominations the legislature violated Art.26(c) and (d) which
provide that religious denominations shall have the right to own and acquire
movable and immovable property and administer such property in
accordance with law. These provisions do not take away the right of the
State to acquire property belonging to religious denominations. Those
denominations can own or acquire properties and administer them in
accordance with law. That does not mean that the property owned by them
cannot be acquired. As a result of acquisition they cease to own that
property. Thereafter their right to administer that property ceases because it
is no longer their property. Art.26 does not interfere with the right of the
State to acquire property."
76. Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State
of Gujarat, (1976) 2 SCR 317 at pages 327-328 : (AIR 1974 SC 2098 at p.
2103), has held :
" One thing is, however, clear that Article 26 guarantees inter alia the
right to own and acquire movable and immovable property for managing
44
religious affairs. This right, however, cannot take away the right of the State
to compulsorily acquire property ......If, on the other hand, acquisition of
property of a religious denomination by the State can be proved to be such as
to destroy or completely negative its right to own and acquire movable and
immovable property for even the survival of a religious institution the
question may have to be examined in a different light.:" (Emphasis supplied)
77. It may be noticed that Article 25 does not contain any reference to
property unlike Article 26 of the Constitution. The right to practise, profess
and propagate religion guaranteed under Article 25 of the Constitution does
not necessarily include the right to acquire or own or possess property.
Similarly this right does not extend to the right of worship at any and every
place of worship so that any hindrance to worship at a particular place per se
may infringe the religious freedom guaranteed under Articles 25 and 26 of
the Constitution. The protection under Articles 25 and 26 of the Constitution
is to religious practice which forms an essential and integral part of the
religion. A practice may be a religious practice but not an essential and
integral part of practice of that religion.
78. While offer of prayer or worship is a religious practice, its offering at
every location where such prayers can be offered would not be an essential
or integral part of such religious practice unless the place has a particular
significance for that religion so as to form an essential or integral part
thereof. Places of worship of any religion having particular significance
for that religion, to make it an essential or integral part of the religion,
stand on a different footing and have to be treated differently and more
reverentially.
45
79. A five-Judge Full Bench of the Allahabad High Court, in Raja
Suryapalsingh v. U.P. Govt., AIR 1951 All 674, held :.
"Arguments have been advanced by learned Counsel on behalf of
certain waqfs and Hindu religious institutions based on Articles 25(1) and
26, cl.(c) of the Constitution...........
It is said that a mutawallis's right to profess his religion is infringed if
the waqf property is compulsorily acquired, but the acquisition of that
property under Art.31 (to which the right conferred by Art. 25 is expressly
subject) has nothing to do with such rights and in no way interferes with
this exercise."
80. It has been contended that a mosque enjoys a particular position in
Muslim Law and once a mosque is established and prayers are offered in
such a mosque, the same remains for all time to come a property of Allah
and the same never reverts back to the donor or founder of the mosque and
any person professing Islamic faith can offer prayer in such a mosque and
even if the structure is demolished, the place remains the same where the
Namaz can be offered. As indicated herein before, in British India, no such
protection was given to a mosque and the mosque was subjected to the
provisions of statute of limitation thereby extinguishing the right of Muslim
to offer prayers in a particular mosque lost by adverse possession over that
property.
81. Section 3(26) of the General Clauses Act comprehends the categories of
properties known to Indian Law. Article 367 of the Constitution adopts this
secular concept of property for purposes of our Constitution. A temple,
church or mosque etc. are essentially immovable properties and subject to
protection under Articles 25 and 26. Every immovable property is liable to
46
be acquired. Viewed in the proper perspective, a mosque does not enjoy any
additional protection which is not available to religious places of worship of
other religions.
82. The correct position may be summarised thus. Under the Mahomedan
Law applicable in India, title to a mosque can be lost by adverse possession
(See Mulla's Principles of Mahomedan Law, 19th Edn. by M. Hidayatullah -
S.217 and AIR 1940 PC 116). If that is the position in law, there can be no
reason to hold that a mosque has a unique or special status, higher than that
of the places of worship of other religions in secular India to make it immune
from acquisition by exercise of the sovereign or prerogative power of the
State. A mosque is not an essential part of the practice of the religion of
Islam and Namaz (prayer) by Muslims can be offered anywhere, even in
open. Accordingly, its acquisition is not prohibited by the provisions in the
Constitution of India. Irrespective of the status of a mosque in an Islamic
country for the purpose of immunity from acquisition by the State in exercise
of the sovereign power, its status and immunity from acquisition in the
secular ethos of India under the Constitution is the same and equal to that of
the places of worship of the other religions, namely, church, temple etc. It is
neither more nor less than that of the places of worship of the other religions.
Obviously, the acquisition of any religious place is to be made only in
unusual and extraordinary situations for a larger national purpose keeping in
view that such acquisition should not result in extinction of the right to
practise the religion, if the significance of that place be such. Subject to this
condition, the power of acquisition is available for a mosque like any other
place of worship of any religion. The right to worship is not at any and
every place, so long as it can be practised effectively, unless the
47
right to worship be practised effectively, unless the right to worship at a
particular place is itself an integral part of that right.
.....................................
....................................
96. As a result of the above discussion, our conclusions, to be read with the
discussion, are as follows:-
(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 dispute between the parties thereto. This is
an extinction of the judicial remedy for resolution of the dispute amounting
to negation of rule of law. Sub-section (3) of Section 4 of the Act is,
therefore, unconstitutional and invalid.
(1)(b) The remaining provisions of the Act do not suffer from any invalidity
on the construction made thereof by us. Sub-section (3) of Section 4 of the
Act is severable from the remaining Act. Accordingly, the challenge to the
constitutional validity of the remaining Act, except for sub-section (3) of
Sec. 4, is rejected.
(2) Irrespective of the status of a mosque under the Muslim law applicable in
the Islamic countries, the status of a mosque under the Mahomedan Law
applicable in secular India is the same and equal to that of any other place of
worship of any religion; and it does not enjoy any greater immunity from
acquisition in exercise of the sovereign or prerogative power of the State,
than that of the places of worship of the other religions.
(3) The pending suits and other proceedings relating to the disputed area
within which the structure (including the premises of the inner and outer
courtyards of such structure), commonly known as the Ram Janma Bhumi -
48
Babri Masjid, stood, stand revived for adjudication of the dispute therein,
together with the interim orders made, except to the extent the interim orders
stand modified by the provisions of Section 7 of the Act.
(4) The vesting of the said disputed area in the Central Government by virtue
of Section 3 of the Act is limited, as a statutory receiver with the duty for its
management and administration according to Section 7 requiring
maintenance of status quo therein under sub-section (2) of Section 7 of the
Act. The duty of the Central Government as the statutory receiver is to
handover the disputed area in accordance with Section 6 of the Act, in terms
of the adjudication made in the suits for implementation of the final decision
therein. This is the purpose for which the disputed area has been so acquired.
(5) The power of the courts in making further interim orders in the suits is
limited to, and circumscribed by, the area outside the ambit of Section 7 of
the Act.
(6) The vesting of the adjacent area, other than the disputed area, acquired by
the Act in the Central Government by virtue of Section 3 of the Act is
absolute with the power of management and administration thereof in
accordance with sub-section (1) of Section 7 of the Act, till its further vesting
in any authority or other body or trustees of any trust in accordance with
Section 6 of the Act. The further vesting of the adjacent area, other than the
disputed area, in accordance with Sec. 6 of the Act has to be made at the time
and in the manner indicated, in view of the purpose of its acquisition.
(7) The meaning of the word "vest" in Section 3 and Section 6 of the Act has
to be so understood in the different contexts.
(8) Section 8 of the Act is meant for payment of compensation to owners of
the property vesting absolutely in the Central Government, the title to which
49
is not in dispute being in excess of the disputed area which alone is the
subject matter of the revived suits. It does not apply to the disputed area, title
to which has to be adjudicated in the suits and in respect of which the
Central Government is merely the statutory receiver as indicated, with the
duty to restore it to the owner in terms of the adjudication made in the suits.
(9) The challenge to acquisition of any part of the adjacent area on the
ground that it is unnecessary for achieving the professed objective of settling
the long standing dispute cannot be examined at this stage. However, the
area found to be superfluous on the exact area needed for the purpose being
determined on adjudication of the dispute, must be restored to the undisputed
owners.
(10) Rejection of the challenge by the undisputed owners to acquisition of
some religious properties in the vicinity of the disputed area, at this stage is
with the liberty granted to them to renew their challenge, if necessary at a
later appropriate stage, in cases of continued retention by Central
Government of their property in excess of the exact area determined to be
needed on adjudication of the dispute.
(11) Consequently, the Special Reference No. 1 of 1993 made by the
President of India under Art. 143(1) of the Constitution of India is
superfluous and unnecessary and does not require to be answered. For this
reason, we very respectfully decline to answer it and return the same.
(12) The questions relating to the constitutional validity of the said Act and
maintainability of the Special Reference are decided in these terms.
50
2/7 ka 1
O.O.S.No.4 of 1989 (Reg. Suit No.12-61)
1. The Sunni Central Board of Waqfs U.P.
Lucknow, Moti Lal Bose Road, Police Station Kaiserbagh, City
Lucknow through Shah Ghyas Alam, Secretary.
2. Molvi Mohammad Qasim, aged about 53 years, son of Sheikh Abdul
Razzaq, General Secretary, Jamiatul Ulami Hind, U.P. Bagh Gunge
Nawab, Police station Kaserbag, Lucknow
(Deleted vide order dated 9.12.91)
Sd./- 9.12.91
2/1. Mohd. Siddiq alias Hafiz Mohd. Siddiq, aged about 46 years, s/o late
Haji Mohd. Ibrahim, resident of Lal Bagh, Moradabad, General
Secretary, Jamiatul Ulemai Hind, Uttar Pradesh, Jamiat Building,
B.N. Verma Road (Katchehry Road), Lucknow
3. Haji Mohammad Ehtram Ali, aged about 70 years son of Munshi
Mohammad Ehtisham Ali deceased, resident of Khayaliganj, police
station Kaiserbagh, City Lucknow (Struck off under Court's order D/
14.3.70. Sd/-)
4. Molvi Mohammad Faiq aged about 55 years, son of Haji
Ramzan R/o Mohalla Tehri Bazar, Ajodhiya, pergana Haveli Avadh,
Ditt. Faizabad.
(Deleted vide court's order dated 9.12.91)
Sd./- 9.12.91
5. Molvi Mohammad Naseer aged about 58 years, son of Ashiq Ali,
resident of village : Ponthar, Pergana Tanda Tahsil Tanda, District
Faizabad.
(Deleted vide court's order dated 16.11.92
Sd./- 16.11.92
6. Shahabuddin aged about 42 years, son of Haji Munney Sahib, resident
of Angoori Bagh, City Faizabad.
(Deleted vide Court's order dated 9.12.91)
Sd./- 9.12.91
6/1 Ziauddin aged about 46 years, son of Haji Shahabuddin (deceased)
resident of Mohalla Angoori Bagh, pergana Haveli Oudh,City and
District Faizabad.
(Amended as per court's order dated 23.8.90)
Sd./- 31.8.90
7. Mohammad Hashim aged about 40 years, son of Karim Bux, resident
of Mohalla Kutya, Paji Tola, Ajodhiya Pergana Haveli Avadh, Distt.
Faizabad.
51
8. Vakiluddin aged about 55 years son of Ismail, resident of
Madarpur, pegana and Tahsil Tanda, District Faizabad.
8/1. Maulana Mahfoozurahman, aged about 52 years son of late
Maulana Vakiluddin, Resident of Village Madarpur, Pergana and
Tahsil Tanda, District Faizabad.
(Amended & Added as per Court's
order dated 9.5.95)
Sd./- 9.5.95
9. Mahmud/Ahmad aged about 30 years son of Ghulam Hasan, resident
of Mohalla Rakabganj, City Faizabad
(Added under Court's order
dated 4.2.63
Sd./- 5.2.63
10. Zahoor Ahmad, S/o Noor Mohd. Aged about 80 years r/o
Mohalla Nau Ghazi Qabar, Ayodhya District Faizabad.
(Deleted vide court's order dated 9.12.91)
Sd./-9.12.91
10/1 Farooq Ahmad, son of Sri Zahoor Ahmad, R/o Mohalla Naugazi
Qabar, Ayodhya City, Ayodhya, Distt. Faizabad.
(Added vide court's order dated 9.12.91)
Sd./- 9.12.91
..............................Plaintiffs
Versus
1. Gopal Singh Visharad, aged about 53 years, son of Thakur
Girdhari Singh, resident of Sargaddwar, Ajodhiya, District
Faizabad.
(Deleted vide court's order dated 9.12.91)
Sd./-9.12.91
2. Sri Param Hans Ram Chander Das, resident of Ajodhia,
Faizabad.
3. Nkirmohi Akhara situate in Mohalla Ram Ghat City Ajodhiya, District
Faizabad, through Mahant Raghunath Dass Chela Mahant Dharm
Dass Mahant Raghunath Dass Chela Mahant Dharam Mahant
Raghunath Das Chela Mohant Dharam Das Mahant Rameshwar Das
Mahnat Sarbarkar, resident of Nirmohi Akhara Mohalla Ramghat,
City Ajodhiya Distrit Faizabad.
(Substituted dated 23.7.66) Sd./- 30.7.66
Mahant Pram Dass Chela Mahant Gobardhan Dass
4. Mahant Raghunath Dass Chela Mahant Dharam Dass Mahant and
Sarbarakhar Nirmohi Akhaara Mohalla Ram Ghat, city Ajodhiya,
District Faizabad.
52
(Substituted under Court's order dated 23.7.66)
Sd./- 30.7.66
5. The State of Uttar Pradesh through Chief Secretary to the State
Government, U.P.
(Amended under court's order dated 8.7.67)
Sd./- 20.7.67
Corrected under court's order
dated 30.1.62 Sd./-
6. The Collector, Faizabad.
7. The City Magistrate, Faizabad.
8. The Superintendent of Police, Faizabad.
9. B. Priya Dutt Son of R.B. Babu Kamlapat Ram, resident of
Rakabganj, Faizabad.
10. President, all India Hindu Maha Sabha, Read Road, New Delhi.
Maha Pradeshik Sabha,
11. President All India Arya/ Samaj, Delhi (Dewan Hall)
Baldan Bhawan, Shradhanand Bazar, Delhi.
(Added under court's order dated 20.3.63)
Corrected as per court's order
dated 17.9.92 Sd./- 17.9.92

12. President, All India Sanatan Dharm Sabha, Delhi.
(Added under Court's order dated 20.3.1963)
13. Abhiram Das age 54 years, Sadhak Shesh Sri Baba Sarin Das, R/o
Hanuman Garhi, Ayodhya.
(Added under court's order dated 26.4.48 Sd./-
(Deleted vide court's order dated 9.12.91
Sd./- 9.12.91)
13/1 Dharam Das alleged Chela Baba Abhiram Das, R/o Hanuman Garhi,
Ayodhya, Faizabad. (Sd./- 27.1.92)
14. Pundrik Misra, age 33 years, s/o Raj Narain Misra, R/o Balrampur
Sarai, Rakabganj, Faizabad.
15. Baba Bajranj Das, Chaile Baba Ram Bharan Das, Hanuman Garhi,
Ayodhya, Faizabad
(Substituted under order of court dated 14.2.89)
15. Sri Ram Lakhan Saran, member, Ram Janam Bhumi, Seva Samiti,
Faizabad.
53
15. Sri Ram Dayal Saran, Chela of late Ram Lakhan Saran, resident
of town Ayodhya, District Faizabad.
16. Shab Narain Das Chaila Baba Badri Das Ji Sankatwali, r/o Sri
Hanuman Garhi, Ayodhya, Faizabad.
(Deleted vide court's order dated 9.12.91)
Sd./-9.12.91
17. Ramesh Chandra Tripathi aged about 29 years, son of Sri Parsh
Rama Tripathi, Resident of village Bhagwan Patti, Pargana
Minjhaura, Tahsil Akbarpur, District Faizabad.
(Added under court's order dated 30.4.69)
Sd./- 14.5.69
18. Mahant Ganga Das aged about 45 years, (Chela of Mahant Sarju
Dass R/o Mandir Ladle Prasad, City Ayodhya, Faizabad.
Do-
19. Shri Swami Givindacharya, manas martand putra Balbhadar Urf
Jhallu, R/o Makan No.735, 736, 737, Katra Ayodhya, Pergana
Haveli Audh Tahsil and Zila Faizabad.
20. Madan Mohan Gupta, convener of Akhil Bhartiya Sri Ram Janam
Bhoomi Punarudhar Samti, E-7/45 Bangla T.T. Nagar, Bhopal.
(Amended vide order dated 27.1.92) Sd./-27.1.92
(Added by order of court's dated 23.10.89) Sd./-

21. Prince Anjum Qadar, President All India Shia conference,
Registered, Qaumi Ghar, Nadan Mohal Road, F.S. Chowk,
Lucknow
(Amended vide order dated 27.1.92) Sd./-27.1.92
(Added by court's order dated 8.12.89)
22. Umesh Chandra Pandey, son of Sri R.S. Pandey, R/o Ranupalli,
Ayodhya, Distt. Faizabad.
(Added in court's dated 20.1.92) Sd./-23.1.92
Defendants
The plaintiffs named above beg to state as under:-
Amendment made on para 1 &
11 (A) of plaint vide order dated 30.9.2002
1. That in the town of Ajodhiya, pergana Haveli Oudh there exits an
ancient historic mosque, commonly known as Babri Masjid, built by
Emperor Babar more than 433 years ago, after his conquest of India
and his occupation of the territories including the town of Ajodhiya,
for the use of the Muslims in general, as a place of worship and
54
performance of religious ceremonies.
2. That in the sketch map attached herewith, the main construction of the
said mosque is shown by letters A B C D and the land adjoining the
mosque on the east, west, north and south, shown in the sketch map
attached herewith, is the ancient graveyard of the Muslims, covered by
the graves of the Muslims, who lost the lives in the battle between
emperor Babar and the previous ruler of Ajodhiya, which are shown in
the sketch map attached herewith. The mosque and the graveyard is
vested in the Almighty. The said mosque has since the time of its
construction been used by the Muslims for offering prayers and the
graveyard has been used as graveyard. The mosque and the graveyard
are in Mohalla Kot Rama Chander also known as Rama Kot Town,
Ayodhya, The khasra number of the mosque and the graveyard in suit
are shown in the schedule attached which is part of the plaint.
Corrected under Courts
Order dated 2.1.62
3. That for the upkeep and maintenance of the mosque and other
connected expenses, a cash grant used to be paid from the Royal
Treasury which was continues by the Emperor of Delhi and by Nawab
Saadat Ali Khan, the Nawab Wazir of Oudh.
4. That after the annexation of Oudh, the British Government also
continued the case Nankar till 1864, in which years instated of cash
Nankar grant of revenue free land in village Sholapur and bahoranpur,
in the vicinity of Ajodhiya, was made by the British Government.
5. That in the mosque, but outside the main building of the mosque, there
was Chabutra 17 x 21 on which there was a small wooden structure
in the form of a tent which is still there.
6. That in 1885, one Mahant Rghbuar Dass alleging himself to be the
Mahant of Janam Asthan instituted a suit (original Suit No.61/280 of
1885) against the Secretary of State for India in Council and
Mohammad Asghar, Mutawalli of the Babri Mosque, for permission to
build a temple on the Chabutra 17 z 21 mentioned in para 5 above, in
the court of the learned Civil, Judge, Faizabad which was dismissed
and an appeal from the said decree was also dismissed by the learned
55
district Judge, Faizabd (C ivil Appeal No.27 of 1885). In the sketch
map filed alongwith the plaint in Suit No.61/280 of 1885 the entire
building, with the exception of the Chabutra 17 x 21 was admitted to
be mosque and was shown as such.
Para 6A,6B,6C, 6D, 6E and 6F are
added by the orders of the Court dated
22.12.62 these paper are written on
separate sheets marked page 13. 14,15
and they are annexed in the end of the
plaint.
6A. That the cause of action for the suit in Suit No.61/280 of 1885 in
the Court of the Civil Judge, Faizabd, arose on the refusal of the Dy.
commissioner of Faizabad on the representation of some Muslims to
grant permission to Mahant Raghubar Dass, Mahant of janam Asthan
for the construction of a temple on the ground that a temple could not
be permitted to be built on land adjoining the mosque (meaning
thereby the Babri Masjid).
6B. In that suit Regular Suit No.61/280 of 1885 of the Court of Civil
Judge, Faizabad Mahant Raghubar Dass was suing on behalf of
himself, on behalf of Janam Asthan, and on behalf of the whole body
of persons interested in Janam Asthan and Mohd. Asghar, Mutawalli of
the Babri Masji was made a defendant.
6C. Mohammad Asghar defendant Mutawalli of Babri Masjid
contested the suit interalia on the ground that the land on which the
temple is sought to be built is not the property of the plaintiff or of the
Asthan, that the said land lies within the Ahata of Babri Masjid and is
the property of the Masjid.
6D. That in the suit mentioned above the matter directly and
substantially in issue was:-
(i) the existence of the Babari Masjid.
(ii) the right of the Hindus to construct a temple on land adjoining
the Masjid.
The existence of the mosque was admitted by the plaintiff in that suit
and the suit if the plaintiff was dismissed on the further ground of
public policy.
56
6E. If the building was not a Masjid but a temple as alleged in the
present suit the matter might and ought to have been pleaded by
Mahant Raghubar Dass in the former suit (suit No.61/280 of 1885
mentioned above) and shall be deemed to have been a matter directly
and substantially in issue in that suit and the plea that the building is
not a Masjid but a temple cannot be raised in the present suit. For the
reasons mentioned above the decision in the former suit operates as res
judicata in the present suit.
6F. That on the admission contained in the plaint of Regular Suit
No.61/280 of 1885mentioned in the preceding paragraphs it must be
taken an established fact that the building now claimed by the Hindus
as the temple of Janam Asthan was and is a mosque and not a temple.
7. That the suit mentioned above was a sensational case, in which the
entire Hindu public and more specially all the Mahants of Ajodhiya
and other respectable Hindus of Ajodhiya and Faizabad were deeply
interested.
8. That in 1934 during a communal riot in Ajodhia, portions of Babri
Mosque were damaged. The damaged portions, were however, rebuilt
and reconditioned at the cost of the Government through a Muslim
Thekadar.
9. That in 1936 the U.P. Muslim Wakfs Act XIII of 1936 was passed and
under the provisions of the said Act, the Commissioner of Wakfs made
a complete enquiry and held that Babri Masjid was built by emperor
Babar who was a Sunni Mohammadan and that the Babari Mosque
was a public wakf. A copy of the Commissioners report was
forwarded by the State Government to the Sunni Central Board of
Wakfs and the Sunni Central Board of Wkfs published the said report
of the Commissioner of Wakfs in the Official Gazette dated 26.2.1944.
10. That, no suit, challenging the report of the Commissioner of Wakfs
was filed by the Hindus or by any person interested in denying the
correctness of the report of the Commissioner of Wakfs, on the ground
that it was not a Muslim Wakf or that it was a Hindu temple.
11. That the Muslims have been in peaceful possession of the aforesaid
mosque and used to recite prayer in it, till 23.12.1949 when a large
57
crowd of Hindus, with the mischievous intention of destroying,
damaging or defiling the said mosque and thereby insulting the
Muslim religion and the religious feelings of the Muslims, entered the
mosque and desecrated the mosque by placing idols inside the mosque.
The conduct of Hindus amounted to an offence punishable under
Sections 147, 295 and 448 of the Indian Penal Code.
11(a). That assuming, though not admitting, that at one time there
existed a Hindu temple as alleged by the defendants representatives of
the Hindus on the site of which emperor Babar built the mosque, some
433 years ago, the Muslims, by virtue of their long exclusive and
continuous possession beginning from the time the mosque was built
and continuing right upto the time some mosque, some mischievous
persons entered the mosque and desecrated the mosque as alleged in
the preceding paragraphs of the plaint, the Muslims perfected their title
by adverse possessions and the right, title or interest of the temple and
of the Hindu public if any extinguished.
12. That the incident stated in the preceding paragraph was immediately
reported by the constable on duty (Mata Prasad) to the police station
Ajodhiya and the Sub-Inspector registered the report and proceeded to
the spot for making enquiries in the matter.
13. That the City Magistrate, Faizabad-cum Ajodhiya started proceedings
under Section 145 Criminal Procedure Code and by his order dated
29.12.1949 attached the said mosque and handed over possession of
the same to Sri Priya Dutt Ram defendant no.9 as Receiver, who still
continues in possession and the Muslims are deprived of their legal
and constitutional right of offering prayers in the said mosque.
14. That the above action, taken by the City Magistrate, Faizabad, is not
only illegal but is fraught with injustice to the plaintiffs, and has the
effect of depriving a large section of Muslim citizens of India from
exercising their legal rights guaranteed by the Constitution of India.
15. That on 16.1.1950 defendant no.1 filed Regular Suit No.2 of 1950 in
the court of Civil Judge, Faizabad, in his personal capacity, for
declaration and injunction, on the false allegation that the building in
suit was a temple and thus deities are installed in it.
58
16. That some time after, defendant no.2 filed Suit No.25 of 1950 in the
court of Civil Judge, Faizabad against the same set of defendants, and
for identical reliefs, with this difference that while the first suit was
filed without notice under Section 80 C.P.C. to the State Government
and its officers, Suit no.25 of 1950 was filed with notice to them.
17. That a third Suit No.26 of 1960 has been filed by Nirmohi Akhara and
Mahant Raghunath Dass, defendants 3 and 4 against defendants nos.5
to 9, and certain Muslim Community under Order 1 rule 8 C.P.C. The
suit purports to be for the removal of defendant no.9 from the
management of building which the Hindu public call Temple of
Janam Bhum and for its delivery to Mahant Raghunath Dass,
defendant no.4.
18. That on the application of the plaintiff in Suit no.2 of 1950 temporary
injunction was served restraining the defendants of that Suit from
removing the idols from the mosque in dispute, and for interfering
with Puja etc. of the Hindus. The result of the injunction order of the
learned Civil Judge is that while Hindus are permitted to perform Puja
of the idols, placed by them in the mosque, the Muslims are not
allowed even to enter the mosque, are deprived of their just and legal
rights and are not allowed even to enter the mosque, which was
constructed about 433 years back and has been declared to be a public
wakf and has been used by Generations of Muslims Since then, as a
mosque, for reciting prayers therein. The order of injunction is fraught
with injustice, hence the necessity of the institution of suit on behalf of
Muslim public under order 1 rule 8 C.P.C. against the Hindu public so
that the decision in the case may be binding on the Hindu community
at large.
19. The present suit is filed by the plaintiffs, on behalf of and for the
benefit of the entire Muslim community and an application for
necessary permission under Order 1 Rule 8 C.P.C. is filed alongwith
the plaint. Similarly the defendants are sued as representing the entire
Hindu Community and an application for necessary permission under
order 1 Rule 8 C.P.C. is filed alongwith the plaint.
Corrected under Courts Order dated
59
today Sd./-21.12.61
Amended under Courts order dated
today Sd./-21.12.61
20. That the building in suit claimed by the plaintiffs as Muslim wakf is in
the possession of Receiver holding for the real owner and would be
released in favour of the plaintiffs in case the plaintiffs suit succeeds
but if for any reason in the opinion of the court, a suit for possession is
the proper relief to be claimed, the plaintiffs in the alternative pray for
recovery of possession.
21. That two months notice of the suit under Section 80 of the Code of
Civil Procedure has been given to the defendants 5 to 9 by Registered
Post on 19.6.1961. the notices were delivered to the defendants 5 to 8
on 20.6.1961 and defendant no.9 refused to take the delivery of the
notice on 23.6.1961. The two months; period from the service of the
notice has expired, but no reply has been received.
21-A, 21-B & 21-C
Added vide Courts
order dated 25.5.95/1.8.95
Sd.//7.9.95
21-A. That in violation of the orders of the Hon'ble Supreme Court,
dated 15
th
November, 1991 passed in three Writ Petitions and in
violation of the orders of this Hon'ble Court dated 3.2.1986, 14.8.1989
and 7.11.1989 etc. the Babri Masjid was demolished on 6
th
December,
1992. The idols wrongly placed in the premises of the Babri Masjid
between the night of 22
nd
-23
rd
December, 1949 were removed by the
destructors of Babri Masjid and thereafter an illegal structure was
created on 7
th
December, 1992 in violation of all the orders of the
courts mentioned above and the undertakings given in the Hon'ble
Supreme Court. These acts of demolition and destruction of the
mosque were carried out by the miscreants and criminals with the
connivance of the then State Government of the B.J.P. As the
demolition and change in the position of the spot was made in defiance
and flagrant violation of the various orders of this Hon'ble court and
the Hon'ble Supreme Court, the plaintiffs are entitled for the
60
restoration of the building as it existed on 5.12.1992.
21-B. That under the Muslim Law mosque is a place where prayers
are offered publicly as a matter of right and the same neither requires
any structure and nor any particular mode of structure is provided for
the same. Even the open space where prayers are offered may be a
mosque and as such even after the demolition of the mosque building
by the miscreants, the land over which the building stood is still a
mosque and Muslims are entitled to offer prayers thereon.
21-C. That by means of ordinance No.8 of 1993 promulgated on 7
th
January, 1993, the land of the mosque and the entire land appurtenant
thereto including the land in suit was sought to be acquired and the
said Ordinance was later on substituted by an Act of Parliament,
namely, Act No.33 of 1993. However, in the cases challenging the
said ordinance and the Act, the Hon'ble Supreme Court by its
judgment dated 24
th
October, 1994, has held the Union of India to be
the statutory Receiver of the land covered by the said mosque and has
further provided that the land of the appurtenant and adjacent area will
be provided for the enjoyment of the crucial area of mosque portion as
per requirement in accordance with the judgment of the suits. The
Commissioner, Faizabad Division, Faizabad, is presently working as
Authorised person on behalf of the Government of India.
22. That the valuation of the suit for purposes of jurisdiction and payment
of court-fees is Rs.22,000/- as follows:-
Valuation of the mosque Rs.21,000/- and that of graveyard is
Rs.1,000/- on which a court fee of Rs.2,057.50 is paid.
23. That cause of action for the suit against the Hindu public arose on
23.12.1949 at Ajodhiya District Faizabad within the jurisdiction of this
Hon'ble Court when the Hindus unlawfully and illegally entered the
mosque and desecrated the mosque by placing idols in the mosque
thus causing obstruction and interference with the rights of the
Muslims in general, of saying prayers and performing other religious
ceremonies in the mosque. The Hindus are also causing obstructions
to the Muslims gang in the graveyard, (Ganj-Shahidan) and reciting
Fatiha to the dead persons buried therein. The injuries so caused are
61
continuing injuries are the cause of action arising therefrom is renewed
de-die-indiem and as against defendants 5 to 9 the cause of action
arose to the plaintiffs on 29.12.1949 the date on which the defendant
No.7 the City Magistrate Faizabad-cum-Ajodhiaya attached the
mosque in suit and handed over possession of the same to Sri Priya
Dutt Ram defendant no.9 as the receiver, who assumed charge of the
same on January 5, 1950.
The State Government and its officials defendants 6 to 8 failed
in their duty to prosecute the offenders and safeguard the interests of
the Muslims.
24. The plaintiffs claim the following reliefs:-
Corrected under Courts
Order dated 2.1.62
Sd./-
3.1.62
Corrected under
Courts Order dt.2.1.62
Sd./- 3.1.62


(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 grave
yard 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 grave yard 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 plaintiffs favour, against the defendants.
Amendment/Addition
made as per Courts
order dt.25.5.95 Sd./-
(bb) That the statutory Receiver be commanded to hand over the property
in dispute described in the Schedule A of the Plaint by removing the
unauthorised structures erected thereon.
(c) Costs of the suit be decreed in favour of the plaintiffs.
62
(d) Any other or further relief which the Hon'ble Court considers proper
may be granted.
Faizabad Dated: Sd./- illegible
18.12.1961 Plaintiffs
63
113/1-ka
O.O.S.No.4 of 1989
Written Statement on behalf of Ram Chander Dass and Shri Gopal
Singh Visharad defendants No.1 & 2 is as follows:-
1. That para 1 of the plaint is wrong and is not admitted.
2. That para 2 of the plaint is absolutely wrong and is denied. There was
never any battle between Babar and the rule of Ajodhya on any grave
yard or mosque built as dictated by the said Babar.
3. That para 3 of the plaint is wrong and is denied.
4. That para 4 of the plaint is wrong and is not admitted.
5. That para 5 of the plaint is wrong and is not admitted.
6. That defendant No.1 and 2 has no knowledge of the facts mentioned in
para 6 of the plaint, hence the para 6 is denied.
7. That para 7 of the plaint is not admitted.
8. That para 8 of the plaint is absolutely wrong and is not admitted.
9. That the defendants No.1 & 2 have no knowledge of the allegations
made in para 9 of the plaint, hence it is denied.
10. That para 10 of the plaint is denied.
11. That para 11 of the plaint is wrong, all the allegations made therein are
denied.
12. That para 12 of the plain is not admitted.
13. That the defendants No.1 & 2 have no knowledge about the allegations
made in para 13 of the plaint. Only this much is admitted that Shri
Priyadutt Ram was appointed Receiver of the Janamsthan temple
Ajodhya by the learned City Magistrate.
14. That para 14 of the plaint is denied.
15. That para 15 of the plaint is only so far admitted that the defendants
No.1 & 2 did file true cases against a few Muslims and certain
Government officials for injunction and declaration that case was filed
in this Hon'ble Court on true and correct allegations.
16. That the defendants No.1 & 2 admit only this much that the defendant
No.2, Shri Ram Chandra Pram Hans did file a suit in this Hon'ble
Court, which is true and correct.
17. That the defendants No.1 & 2 have no knowledge of the allegations
64
made in para 17 of the plaint, hence that is denied.
18. That only this part of the para 18 of the plaint is admitted that Hindus
do Puja etc. in the Janam Bhumi temple and the Muslims are not
allowed to go near that temple, which they wrongly and maliciously
described as mosque, the rest of the allegations of this para are denied.
19. That para 19 of the plaint is denied. The plaintiffs have no right to
make the defendant contest the suit in a representative capacity as a
self appointed representative of the Hindu community which extends
from Madras to Kashmir and from Dwarka to Calcutta. None of the
defendants represent all the Hindus in India. The Janam Bhumi temple
is a public charitable institution and the defendant No.1 contests this
suit to his previously instituted in his individual capacity.
20. That para 20 of the plaint is not admitted.
21. That the defendant No.1 has no knowledge of the facts mentioned in
para 21 of the plaint hence it is denied.
22. That para 22 of the plaint is denied. According to some plaintiffs,
previous assertions and allegations made in the civil suit of the
defendant No.1 pending against them in this court. The suit is
undervalued, hence the court is deficient.
23. That para 23, of the plaint is wrong. The suit is hopelessly time
barred. The Muslims have not been in possession of the property in
dispute since 1934 and earlier.
24. That plaintiffs are not entitled to any relief and the suit deserves to be
rejected with costs.
Further Pleas
25. That the Muslims were never in possession of the temple called Ram
Janam Bhumi. If ever they were in possession of the so-called Babri
mosque, there possession ceased thereon in 1934, and since then
Hindus are holding that temple in their possession and their possession
has repened into statutory adverse possession thereon since 1934.
Prior to 1934, continuous daily Hindu Puja is being done in that
temple and the Muslims have never said their prayers since 1934 in the
temple falsely describe as Babri Mossque.
65
26. That the said temple in dispute is a public charitable institution. It
does not belong to any sect, group, math or individual or Mahant or
any Akhara and it is a public place of worship open to all the Hindus.
No individual Hindu or Mahant can be said to represent the entire
Hindu community as far as this ancient temple is concerned.
27. That the suit is time barred as no action was taken in time from the
orders of the City Magistrate u/s 145 Cr.P. Code.
28. That the suit is time barred as the plaintiffs were never in possession
over the temple in dispute since 1934, and the Hindus were holding it
adversely to them, overtly and to their knowledge.
29. That on equitable grounds as well the suit deserves to be rejected
because the Hindu Puja is going on in the said temple from the past at
best 28 years i.e. 1934 and admittedly from January, 1950 when the
City Magistrate directed the defendant No.9 to carry on puja as usual
in the said temple.
30. That on equitable basis the suit deserve to be stayed as in a previously
instituted suit the same issues are being tried in this very Hon'ble
Court in suits No.2 of 1950 of 25 of 1950, in which practically the
parties are the same.
31. That suit under Order 1 Rule 8, Civil Procedure Code is bad as no one
representing the Hindu community has been made a defendant in the
suit, hence the suit deserves to be rejected.
32. That the suit be rejected with special costs as the plaints have
impleaded the defendant No.1,2,3,4 and 9 knowing full well that they
do not represent the Hindu community but their individual interests
only.
Sd./- Shri Gopal Singh Vasharad
Defendant No.1
12.3.1962
66
O.O.S.No.4 of 1989
Additional Written Statement to the Oral plea made U/Order X C.P.C.
That plaintiff or plaintiff No.1 who claims rights under Act XIII of 1936,
have no such right for the following among other reasons:-
(a) That the U.P. Muslim Wakf Act No.XIII of 1936, is ultra vires, the
Government of India Act, 1935, which had come into force before the
passing of the above Act. It does not come under any of the items of
list II of the Provincial list or list III, the concurrent legislative list.
Item No.9 of the concurrent list or item No.34 of the provincial list
cannot also come to save the above legislation even on the principle of
Pith and substance. Item No.28 of list III of the constitution has
therefore been remoddled.
(b) That any section under sub/section (3) of Section 80 of the former
Government of India Act will not validate the legislation after the
repeal of the former Government of India Act by means of Section 478
of the Government of India Act, 1935.
(c) That in case the Act is considered to be intra-vires the suit not being
one, relating to administration of wakf, taking of accounts,
appointment and removal of mutwallis, putting the Mutwallis in
possession of settlement or modifications of any scheme of
management for which powers and duties have been specified u/s 18
(2) clause (e) of Act XIII of 1936, the present suit on behalf of the
plaintiff No.1 is misconceived and not maintainable. The plaintiff
No.1 can only do things required or permitted by the Act to be done by
the Board (sec.6(3).
(d) That the Act containing privileges based on classification of Waqfs on
the ground of religion particularly Section 5(3) of the Act is hit by
article 14 and 19 of the constitution and is void under Article 13(1) of
the Constitution.
(e) That by Act XVI of 1960, Section 85(2) the above Act has been
repealed. The saving clause contained in the proviso only saves the
operation of the repealed Act in regard to any suit or proceedings
pending in any court or to an appeal or application in revision against
67
any orders that may be passed in such suit or proceeding subject
thereto anything done or any action taken in exercise of powers
conferred by or under those Acts, shall, unless expressly required by
any provision of Act 16 of 1960 be deemed to have been done or taken
in exercise of the powers conferred by the new Act as if the new Act
were in force on the day on which such things was done or action
taken.
Sec. 9 (2) of Act 16 of 1960 only saves the finality of decision
of Commissioner of Waqfs from being affected by provisions of
Chapter I of Act 16 of 1960 but when there is no saving clause with
regard to decision u/s 5(3) in the proviso to sec. 85 (2), the finality
attached by section 5(3) will vanish after the repeal of the enactment.
(f) That the building and land in suit lying in the province of Oudh
became subject of Lord Canning proclamations and all previous rights
became non existent. No fresh grant in respect of the property in suit
having been made after the proclamation, to the plaintiff or to the
Muslim community, have no right to sue.
(g) That the Commissioner of Wakf only has to make an enquiry about
number of Shia and Sunni Waqfs in the district the nature of each
waqf, the gross income of property transferred in the waqf, the Govt.
revenue, the expenses and whether it is one recepted u/s 2. The
Commissioner of Wakf has only to see whether any transaction is waqf
or not and that to which sect. the Waqf belongs and further whether
such waqf is or is not exempted by sec.2 of the Act. All these things
he has to do in accordance with the definition of Waqf in section 3(1)
of the Act XIII of 1936, an Act which is exclusively meant for certain
clauses or Muslim Waqfs. The finality and conclusiveness in inteded
to give effect to the scheme of administration under the Muslim Waqfs
Act and does not and cannot confer jurisdiction to decide question of
title as against non-Muslims. The legislature u/s 5(3) does not say that
the court shall take judicial notice of the reports of the Commissioner
of Waqfs and shall regard them as conclusive evidence that the Waqf
mentioned in such reports are Muslim Wqafs, as was done in Section
10 of the O.E.Act.
68
(h) That there has been no legal publication of alleged report and hence no
question of any finality arises.
(i) That purpose of publication is only to show to which sect. the Waqf
belongs. It does not call upon objections or suit by persons not
interested in what is held to be a Waqf or not viz. by non muslims.
Dated:31.10.1962 Defendants.
Sd./- Gopal Singh
Through:
Counsel for Defendants No.2 and 1

69
O.O.S.No.4 of 1989 (Reg. Suit No.12-61)
Written Statement U/order 8 Rule 1 C.P.C.
Written Statement on behalf of Shri Gopal Singh Visharad & defendant
No.2 is as follows:-
1. That para 1 of the plaint is wrong and is not admitted.
2. That para 2 of the plaint is absolutely wrong and is denied. There was
never any battle between Babar and the ruler of Ajodhya on any
graveyard or mosque alleged to be built (as dictated) by the said Babar.
3. That para 3 of the plaint is wrong and is denied.
4. That para 4 of the plaint is wrong and is not admitted.
5. That para 5 of the plaint is wrong and is not admitted.
6. That defendant No.1 has no knowledge of the facts mentioned in para 6 of
the plaint, hence the para 6 is denied. The additional paras added by
amendment as A- to P.F.are wrong and denied see further pleas.
7. That para 7 of the plaint is wrong and not admitted.
8. That para 8 of the plaint is absolutely wrong and is not admitted.
9. That defendants No.1 & 2 have no knowledge of the allegations made in
para 9 of the plaint, hence it is denied, see additional pleas.
10.That para 10 of the plaint is denied. See further pleas.
11.That para 11 of the plaint is wrong, all the allegations made therein are
denied.
12.That para 12 of the plain is not admitted.
13.That the defendants No.1 & 2, have no knowledge about the allegations
made in para 13 of the plaint. Only this much is admitted that Shri
Priyadutt Ram was appointed Receiver of the Janamasthan temple
Ajodhya by the Hon'ble Court of the City Magistrate, Faizabad.
14.That para 14, of the plaint is denied.
15.That para 15 of the plaint is only so far admitted that the defendants No.1
& 2 did file true cases against a few Muslims and certain Government
officials for injunction declaration. The cases were filed in this Hon'ble
Court on true and correct allegations.
16.That the defendants No.1 & 2 admit only this much that the defendant
70
No.2, Shri Ram Chandra Pram Hans did file another suit in this Hon'ble
Court, which is true and correct.
17.That the defendants No.1 & 2 have no knowledge of the allegations made
in para 17 of the plaint, hence that is denied.
18.That only this part of the para 18 of the plaint is admitted that Hindus do
Puja etc. in the Janam Bhum temple and the Muslims are not allowed to
go near that temple, which they wrongly and maliciously described as
mosque, the rest of the allegations of this para are denied.
19.That para 19 of the plaint is denied. The plaintiffs have no right to make
the defendant contest the suit in a representative capacity as self
appointed representatives of the Hindu community which extends from
Madras to Kashmir and from Dwarka to Calcutta. None of the defendants
represent all the Hindus in India. The Janam Bhum temple is a public
charitable institution and the defendants No.1 & 2 contest this suit as in
their previously instituted suits in their individual capacity.
20.That para 20 of the plaint is not admitted.
21.That the defendants No.1 & 2 have no knowledge of the facts mentioned
in para 21 of the plaint hence it is denied.
22.That para 22 of the plaint is denied. According to some plaintiffs,
previous assertions and allegations made in the civil suits of the
defendants No.1 & 2 pending against them in this court, the suit is
undervalued, hence the court fee is deficient.
23.That para 23, of the plaint is wrong. The suit is hopelessly time barred.
The Muslims have not been in possession of the property in dispute since
1934 and earlier.
24.That plaintiffs are not entitled to any relief and the suit deserves to be
rejected with costs.
Further Pleas
25.That the members of the Hindu community have from time immemorial
been worshiping the site of the Janam Bhum upto this time by virtue of
their right and the Muslims were never in possession of the temple called
Ram Janam Bhum. If ever they were in possession of the so-called Babri
mosque, there possession ceased thereon in 1934, and since then Hindus
71
are holding that temple in their possession, and their possession has
ripened into statutory adverse possession thereon since 1934. Prior to
1934, continuous daily Hindu Puja is being done in that temple and the
Muslims have never said their prayers since 1934 in the temple falsely
described as Babri Mossque.
26.That the said temple in dispute is a public charitable institution. It does
not belong to any sect, group, math or individual or Mahant or any
Akhara and it is a public place of worship open to all the Hindus. No
individual Hindu or Mahant can be said to represent the entire Hindu
community as far as this ancient temple is concerned.
27.That the suit is time barred as no action was taken in time from the orders
of the City Magistrate u/s 145 Cr.P.Code.
28.That the suit is time barred as the plaintiffs were never in possession over
the temple in dispute since 1934, and the Hindus were holding it
adversely to the Muslims, overtly and to their knowledge.
29.That the suit deserves to be rejected because the Hindu Puja is going on in
the said temple from the past at least 28 years i.e. 1934 and admittedly
from January, 1950 when the City Magistrate directed the defendant No.9
to carry on puja as usual in the said temple.
30.That the suit under Order 1 Rule 8, C.P.C. is bad and no one representing
the Hindu community has been made a defendant in the suit, hence the
suit deserves to be rejected.
31.That the suit be rejected with special costs as the plaints have impleaded
the defendants No.1,2,3,4 and 9 knowing full well that they do not
represent the Hindu community but their individual interests only.
32. That the plaintiff or plaintiff No.1 who claim rights under Act XIII of
1936 have no such right for the following among other reasons:-
(a) That the U.P. Muslim Waqf Act No.XIII of 1926 is 1936 is ultra vires,
the Govt. of India Act 1935 which had come into force before the
passing of the above Act. It does not come under any of the items of
list ii of (the Provincial list or List III of the concurrent legislative list.
Item no.9 of the concurrent list or item no.34 of the Provincial list
cannot also come to save the above legislative even on the Principle of
Pith and substance. Item no.28 of list III of the Constitution has
72
therefore been remoddled.
(b) That any sanction under sub-section (3) of section 80-A of the former
Govt. of India Act will not validate the legislation after the repeal of
the former Govt. of India Act by means of section 478 of the Govt. of
India Act 1935.
(c) That in case the act is considered to be intra vires the suit not being
one relating to administration of Waqf, taking of accounts,
appointment and removal of Mutwallis, putting the Mutwallis in
possession or Settlement or modifications of any scheme of
management for which powers and duties have been specified under
Section 18 (2) clause (e) of Act XIII of 1936 the present suit on behalf
of plaintiff no.1 is misconceived and not maintainable. The plaintiff
no.1 can only do things required or permitted by the Act to be done by
the Board (sec.6(3).
(d) That the Act containing privelages based on classification of Waqfs on
the ground of religion, particularly Section 5(3) of the Act is hit by
article 14 and 19 of the constitution and is void under article 13 (1) of
the Constitution.
(e) That by Act XVI of 1960 Section 85 (2) the above Act has been
repleaded. The saving clause contained in the provision only saves the
operation of the repealed Act in regard to any suit or proceedings
pending in any court or to an appeal or application in revision against
any orders that may be passed in such suit or proceeding subject there
to anything done or any action taken in exercise of powers conferred
by or under those Acts, shall, unless expressly required by any
provision of Act 16 of 1936 be deemed to have been done or taken in
exercise of the powers conferred by the new act as if the new Act were
in force on the day on which such thing was done or action taken.
Sec. 9 (2) of Act 16 of 1960 only saves the finality of decision of
Commissioner of Waqfs from being affected by provisions of Chapter
I of Act 16 of 1960 but when there is no saving clauses with regard to
decision u/s 5 (3) in the provision to sec.85 (2), the finality attached by
Section 5 (3) will vanish after the repeal of the enactment.
(f) That the building and land in suit lying in the province of Oudh
73
became subject of Lord Canning proclamations and all previous rights
became non existent. No fresh grant in respect of the property in suit
having been made after the proclamation, the plaintiff or the Muslim
community, have no right to sue.
(g) That the Commissioner of Waqf only has to make an enquiry about
number of Shia and Sunni Waqfs in the district the nature of each
Waqf, the gross income of property comprosed in the Waqf, the Govt.
Revenue, the expenses and whether it is one excepted u/s 2. The
Commissioner of Wakf has only to see whether any transaction is waqf
or not and that to which sect. the Waqf belongs and further whether
such waqf is or is not exempted by sec.2 of the Act. All these things
he has to do in accordance with the definition of Waqf in section 3(1)
of the Act XIII of 1936, an Act which is exclusively meant for certain
clauses of Muslim Waqfs. The finality and conclusiveness is inteded
to give effect to the scheme of administration under the Muslim Waqfs
Act and does not and cannot confer jurisdiction to decide question of
title as against non-Muslims. The legislatures u/s 5(3) does not say
that the court shall take judicial notice of the reports of the
Commissioner of Waqfs and shall regard them as conclusive evidence
that the Waqf mentioned in such reports are Muslim Wqafs, as was
done in Section 10 of the O.E.Act.
(h) That there has been no legal publication of alleged report and hence no
question of any finality arises.
(j) That the purpose of publication is only to show to which sect. the
Waqf belongs. It does not call upon objections or suit by persons not
interested in what is held to be a Waqf or not viz. by non muslims.
33.That the allegation made in the amended para 6 A to 6 F are altogether
wrong. Neither the plaintiff of that suit was suing in a representative
capacity on behalf of the entire Hindu Community nor could he represent
the Hindu community when he was persuing his personal interest to the
determent of the interest of Hindu community at large. The defendant of
that suit was also not representing the Muslims or the Sunnis and the
plaintiff of this suit cannot be legally considered as claiming through that
defendant of that suit. The points now in issue were never directly and
74
substantially in issue in the former suit and there is no resjudicate. There
is no question of constructive resjudicata as the dispute of the defendant
that the Hindus are worshiping the land in dispute (the site of Janam
Bhoom) from the immomerial and that they are entitled to continue
worshiping and the other matters were not in issue in that suit and the
matters of the present suit were foreign to that suit.
Hence no question of resjudicate either actually or constructing arises
in this suit.
Sd./-
Shri Gopal Singh Visharad
and Ram Chandra Dass Param Hans
Defendant No.1 and 2.
25.01.1963
75
O.O.S.No.4 of 1989 (Reg. Suit No.12-61)
Replication to the written Statement of the defendant No.1 & 2
Paras 1 to 24. The allegations in paras 1 to 24 of the plaint are
true and contrary allegations made by the defendants are
denied.
Para 25. The allegations contained in para 25 of the written statement are
denied. The Hindu public never held the mosque and Ganje-
Shahidan in their possession nor did Puja therein since 1934 as
alleged by them.
Para 26. Denied. The property has not been a temple as alleged by the
defendants.
Para 27. Denied.
Para 28. Denied. The Muslim public has been in possession of the
property in suit as mosque for the last 450 years when the
mosque was constructed.
Para 29. Denied. The property has been placed in possession of a
Receiver appointed by the court of the City Magistrate Ist Class,
Faizabad.
Para 30. Denied.
para 31. Denied.
para 32. Denied.
para 33. Allegations in paras 6-A to 6-E of the plaint are correct and
reiterated and contrary allegations in the defendants written
statement are denied.
Additional Pleas
Para 34. That it is absolutely wrong that the Hindu Public took
possession of the property in dispute in 1934 and is holding
possession of it as temple since then and have thus completed
title by adverse possession. The possession of the Muslims
community continued as ever and they have been saying their
prayers in the mosque as such. The Hindu Public, of course in
1934, did some mischief to destroy the mosque and damage was
caused to some extent, which was got repaired by the
Government at the cost of the Government and the Hindu Public
76
was charged with punitive tax. It is absolutely baseless that the
Hindu Public came in possession much less peaceful possession
of the property in suit.
para 35. That the Muslim public as representative of the wakf has been in
continuous possession of the property in suit for last 450 years
i.e. since the time the mosque was constructed and even if the
Hindu public had any interest whatsoever in the property in suit
before that period the Muslim public representing the wakf
perfected his title to the property in suit by their long
undisturbed open possession against the interest of the Hindu
Public which amounts to adverse possession of the wakf and
thus title or interest if any, of Hindu Public has extinguished.
Dated: Sd./-
Lucknow: 11/12.09.1963 Ehtram Ali
Plaintiff

77
176 ka1/1
O.O.S.No.4 of 1989
The Sunni Central Board of Wakf U.P. & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants
Reg. Suit No.12 of 1961
Replication to the written statement of defendant 3 and 4
Para 1 to 24. The allegations in para 1 to 24 of the plaint are
true. Contrary allegations are denied.
Para 25. The sketch map attached to the plaint is correct. Allegations
against it are denied. The sketch map attached to the written
statement is wrong and denied.
Para 26. Wrong and Denied.
Para 27. Denied. The property in suit is not a temple as alleged and has
never been in possession of the defendants as alleged.
Para 28. Denied.
Para 29. Denied.
Para 30. Denied. The Muslim Public has always been saying prayers and
visiting the Mosque and Ganje-Shahidan which is the property
in suit for last 450 years when the mosque was built.
Para 31. Only this much is admitted that in 1950 the mosque in suit was
attached under Section 145 Cr.P.C. and Sri Priadutta Ram was
appointed Receiver and was placed in possession of the attached
property as such. He is still continuing as Receiver. The rest of
the allegations of this para are absolutely wrong and denied.
Para 32. Denied. The defendants have never been in possession or in-
charge of the property in suit as alleged. The filing of the suit
mentioned in this para is admitted. Rest is denied.
Para 33. Filing of the suit in the court of the Addl. Civil Judge Faizabad
is admitted. The said suit has since been transferred to this
Hon'ble Court and is pending.
Para 34. Denied. The plaintiffs and Muslim Public have been in
possession for last 450 years.
78
Para 35. Denied. The plaintiffs have been in possession of the property
in suit as Mosque and Ganje-shahidan for last 450 years and it is
absolutely wrong that the Hindu public ever had possession of
any sort over the property in suit as temple, as alleged by the
defendants in this para.
Para 36. Denied. The Sketch map and the list given as part of the written
statement is wrong and denied.
Additional Pleas
Para 37. That the Muslim public had been in continuous and open
possession of the mosque and Ganje-Shahidan for last 450
years, i.e. the time when the mosque was built. In 1934 of
course the Hindu Public out of mischief attempted to destroy the
mosque and in their attempt they damaged the mosque at places
which damage was repaired by the Government at the expense
of the Government and Hindus Public was penalized by punitive
tax for their unlawful actions.
Para 38. That the possession of the Muslim public was not disturbed and
they remained in possession of the property as mosque and
saying their usual prayers continuously upto December 1949
when Hindu Public by force entered the mosque, by breaking
open the lock of the mosque and desecrated the mosque by
placing idols inside the mosque which being made by the police
proceedings under Section 145 Cr.P.C. were started and to avoid
apprehension of breach of peace the mosque was placed in
custody of a Receiver. The Receiver is still holding the property
for the benefit of Muslim Public.
Para 39. That the Muslim Public as representative of Wakf has been in
continuous possession of the property in suit for las 450 years
i.e. since the mosque was built and even if the Hindu Public had
any interest whatsoever in the property in suit before that period
of 450 years the Muslim Public as representative of wakf has
perfected title to the property in suit by their long undisturbed
open possession against the interest of Hindu Public to their
79
knowledge which amounts to adverse possession of the wakf
and thus the title or interest, if any, of the Hindu Public has been
extinguished.
Lucknow Dated: Sd./-
September 11/12.1963 Ehtram Ali
Plaintiff
80
119/ 1 ka 1
O.O.S.No.4 of 1989
The Sunni Central Board of Wakf U.P. & Ors. Plaintiffs
Registered Addresses
Versus
Sri Gopal Singh Visarad & Ors. .Defendants
Written Statement on behalf of Nirmohi Akhara and mahant
Raghunath Dass defendants 3 & 4.
Para 1. The allegations contained in para one of the plaint are totally
incorrect and are denied. There does not exist any mosque known as Babri
Majid in Ajodhya- Nor was any mosque built by Emperor Baber in Ajodhya
more than 460 years ago as alleged- Nor did Babar make any conquest or
occupation of any territory in India at the time alleged in the plaint- The story
of the mosque as narrated in plaint para 1 is a pure fiction.
Para 2. The allegations contained in Para 2 of the plaint are totally
incorrect and are denied. The alleged sketch map is entirely false and
imaginary and is the outcome of the plaintiffs fancy- On the khasra no
mentioned in the sketch map there stands neither any mosque nor any grave-
The story of alleged battle between emperor Babar and any previous ruler of
Ajodhya, whose name the plaintiffs are unable to mention in the plaint is a
pure canard- Neither did any muslim lose his life in any battle on the land of
the said khasra Nos. nor is there any grave or grave yard of any Muslim at
the said place- In the circumstances, there arises no question of any mosque
or grave yard having been vested or vesting in the Almighty- The allegations
of any Muslim offering prayer or using the land covered by the said Khasra
numbers as grave yard are altogether false and concocted - The real facts are
that the said khasra numbers pertain to the Temple of Janam Bhumi and
other land appurtenant thereto-
Para 3. The allegations contained in para 3 of the plaint are incorrect
and are totally denied- There has been no such mosque as alleged and the
81
question of its upkeep and maintenance does not arise-
Para 4. The allegations contained in para 4 of the plaint are totally
denied-
Para 5. The contents of para 5 of the plaint are denied- The existence
of any mosque as alleged is denied- There never was a Chabutra as alleged
nor do the plaintiffs give any correct or definite location nor the time of
existence of any such Chabutra-
Para 6. The contents of para 6 of the plaint are denied. 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-
Janam Asthan is situate in the north of temple of Janam Bhumi across the
road passing between Janam Bhumi and Janam Asthan- Any sketch map filed
by the said Raghubar Dass along with the alleged plaint would be false and
fictitious and is not binding on the answering defendant-
Para 7. That the contents of para 7 of the plaint are totally false and are
denied-
Para 8. The allegations contained in para 8 of the plaint are denied. The
answering defendants deny the existence of the alleged Babri Mosque and
the allegation of its being damaged and of its being rebuilt and re-constructed
at any bodys cost or through any Thekedar is altogether fictitious- Even if
any communal riot be proved to have occurred in Ajodhya in 1934, no
mosque whatsoever was damaged in Ajodhya in 1934-
Para 9. That the contents of para 9 of the plaint are totally denied except
that U- P. Muslim Waqf Act 1936 was passed by the U-P- Legislature- The
answering defendants deny the inquiry of the report alleged in the said plaint
para and its publication in the Gazette- Even if any such inquiry were proved
to have been held and its report published, it was totally an ex-parte inquiry
secretly and surreptitiously made without any intimation and information to
82
the answering defendants and the same is not binding upon them.
Para 10. That the contents of para 10 of the plaint as stated are not
admitted since the answering defendants had no notice of the alleged inquiry
or report, if any, nor had they any knowledge of the same, they could not file
any suit to challenge the same- But the absence of any such suit cannot
convert a Hindu Temple into a Muslim Mosque-
Para 11 That the contents of para 11 of the plaint are totally false and
concocted- The alleged mosque never existed nor does it exist even now and
the question of any Muslim or the Muslim community having been in
peaceful possession of the same and having recited prayers till 23-12-49 does
not arise- The building which the plaintiffs have been wrongly referring as
Babari Mosque is and has always been the Temple of Janam Bhumi with
idols of Hindu Gods installed therein- The plaint allegation regarding
placing of idols inside any mosque is a pure falsehood-
Para 12. That the contents of para 12 are altogether wrong and are totally
denied- No such incident as mentioned in the plaint para even took place-
Even if any report were proved to have been made by any Constable as
alleged it must have been with the mischievous connivance of the plaintiffs-
Para 13. That the contents of para 13 of the plaint are distorted and are
denied- The fact is that the said City Magistrate started proceedings under
section 145 Cr.P.C by attaching the tmeple of Janam Bhumi and placing it
under the custody of Shri Priya Dutt Ram defendant no.2 as Receiver who
still continues as such but the Puja pat of the deity in the said temple are
regularly performed on behalf of the answering defendants- the Muslims
have no right to offer prayer in the said Temple.
Para 13A,B,C added vide separate sheet per orders of Hon'ble H.C.
dated 21.8.95 Sd./- 01.09.95
Para 13 (A) That property in the suit after decision of the Hon'ble Supreme
Court of India has been taken over by the Central Govt. only as statutory
receiver.
83
Para 13 (B)That subsequent event which took place after framing of the
issues in above suit are necessary to be given which follows as below:-
(I) That on 7/10 Oct 1991, the U.P. State Govt. issued a notification for
acquisition of disputed property described in the said declaration under the
said land Acquisition act 1894 as below:-
Settlement Plot Nos Area in Acres Village
159 (Part) 0.3600 Kot Ram Chandra
160 (Part) 1.0706 -do-
171 (Part) 0.4375 -do-
172 (Part) 0.9063 -do-
Total: ----------------
2.7744 Acres. Perg. Haveli Oudh
---------------- Distt. Faizabad
Amended per orders of
the Hon'ble Court dt.21.08.95
Sd./-
11.09.95
(IV) That on 22.3.1992 BJP Govt. in U.P. in active connivance of local
administration demolished the Temple known as Sumitra Bhawan
Temple.
(V) That Bhagwan Ramlala Birajman in temple known as Sita koop carries
the deity of Bhagwan Ramlala. Mahant Dwarika Das having the
famous payas well known as Sita koop in existence from the time
beyond the human memory.
(VI) That Bhagwan Ramlalaji Birajman at Mandir Loomarsh Chabutra is
situated in Plot No.160 and part No.159.
(VII) That a Big platears known as Laxman Thekri is also existed over the
disputed property.
(VIII) That according to customs of Ramanandiya Akhara Pancha of Nirmohi
Akhara use to live in vicinity of Shri Ram Janam Bhoomi Temple and
that is why these holy places of worship like Sumitra Bhawan. Sita
koop, Laxman Tekri, Loomarsh Chabutra which were in existence
from time immemorial before its demolition, all these places of
84
worship was situate with in the disputed property marked by letter E F
G H I of the seachmap which was been filed already with W.S.
(X) That the said notification of acquisition by U.P. Govt. was struck down
by Hon'ble High Court of Allahabad Lucknow Bench, Lucknow on
11.12.92, and thus the act of demolition of B.J.P.Govt. in U.P. was
totally illegal.
Para 13(c) That before the judgment of above writ petition dated 11.12.92
on 6.12.92 the temples of Nirmohi Akhara along with Chatti pujan
Asthan and Panches residential place were all demolished by some
miscreants who ha no religion, caste or creed. The said Temple Ram
Chabutra had an history of Judicial scanning since 1885 A.D. and it
existence and possession over temple Ram Chabutra was ever since in
possession of Nirmohi Akhara and no other but Hindus allowed to
enter and worship there and put offering in form of money sweets,
fruits flowers etc. which has always been received by panches of
Nirmohi Akhara.
Para 14. That the contents of para 14 of the plaint are altogether wrong
and are totally denied- The Muslim citizens of India are not entitled to
exercise any right in respect of the Temple of Janam Bhumi-
Para 15. That the Answering Defendant are not parties to the suit referred
to in para 15 of the plaint and are not fully aware of the facts of any such
suit- But this much is correct that the building in the present suit is a temple-
Para 16. That the Answering Defendants are not parties to the suit
referred to in para 16 of the plaint and are not fully aware of the fact of any
such suit-
Para 17. That the contents of para 17 of the plaint are substantially
correct with this modification that the suit no.25 of 1958 is filed against the
entire Muslim Community under Order 1 Rule 8 C.P.C. and not against
certain Muslim Community as alleged in the plaint para an that the
85
building in question in that suit is in fact and in reality the temple of Janam
Bhumi.
Para 18. That so far as the contents of the first sentence of para 18 of the
plaint is concerned the answering defendants are not aware of the
proceedings on the record of suit no.2 of 1950 as they are not parties to that
suit- The Answering defendants are not aware of any order of injunction or
any result thereof- But the allegations made in the remaining part of the
plaint para are totally incorrect, fictitious and without foundation and are
denied- The temple Janma Bhoom is under attachment and is placed in the
custody of the Receiver- Only the Pujaries of the Answering Defendants are
allowed to perform the Puja of the idols of the temple but the Hindu public is
not allowed to enter the inner compound of the Temple which is guarded by
armed police. The Muslims have no right to enter the Temple and the
contents of the plaint para regarding the building being a Mosque, its
construction its declaration as a public Waqf and the Muslims using it as a
mosque for prayers are totally incorrect and are denied. There was
absolutely no necessity of the present suit-
Para 19. That the contents of para 19 of the plaint are denied- The Sunni
Board cannot represent the Shia Community- The suit as contemplated
under Order 1 Rule 8 C.P.C. is misconceived- The Answering defendants are
informed and believes that all the individual plaintiffs are sunnies and cannot
represent the Shia Community- It is said that Babar was a Shia and not a
Sunni.
Para 20. That regarding plaint para 20 only this much is admitted that the
building in question i.e. the temple of Janam Bhoom is at present in the
custody and management of the receiver- The rest of the contents of the para
are denied- The plaintiffs are not entitled to any relief.
Para 21. The Answering defendants are not aware of any notice being
served to other defendant and the contents of para 21 of the plaint are denied.
86
Para 22. That the contents of the para 22 of the plaint are denied. The
answering defendants deny the existence of any mosque and of any
graveyard. The valuation has been exaggerated. The valuation of the
building in question which is the temple of Janam Bhoom is not more than
Rs.10000/-. The suit has been overvalues and the court fee paid is excessive.
Para 23. That the plaintiffs have got no cause of action. The allegations
made in para 23 against the Hindus in regard to the alleged mosque are
totally fictitious and are denied. The allegations against the State
Government and officials are also false and are invalid for the purposes of
the suit.
Para 24. That the plaintiffs are not entitled to any relief:-
A D D I T I O N A L P L E A S
Para 25. That the sketch map attached to the plaint is totally incorrect and
is misleading. The details given in the map are wrong and imaginary. A
correct sketch map of the property in dispute is annexed with this written
statement as Annexure A and which correctly shows the various
constructions and places in their relative positions.
Para 26. That there exists in Ayodhya since the days of yore, an ancient
math or Akhara of Ramanand-Varagis called Nirmohis with its seat at
Ramghat known as Nirmohi Akhara, the defendant no.3, which is a religious
establishment of public character, whereof the defendant no.4 is the present
head as its Mahant and Sarbarahkar.
Para 27. That the temple in question known as Janam Bhoomi, the birth
place of Lords Ram Chandra situate in Ayodhya belongs and has always
belonged to the defendant no.3 who through its reigning Mahant and
Sarbarahkar has ever since been managing it and receiving offerings made
there at in form of money, sweats, flowers and fruits and other articles and
things.
87
Para 28. That the said Asthan of Janam Bhumi is of ancient antiquity and
has been existing since before the living memory of man and lies within the
boundaries shown in sketch map appended hereto as Annexure A within
which stands the temple building of Janma Bhumi shown therein with the
main temple of Janma Bhumi wherein is installed the idol of Lord Ram
Chandra with Lakshmaji, Hanumanji and shaligramji.
Para 29. That the said temple has ever since been in the possession of the
defendant no.3 and none others but Hindus have ever since been allowed to
enter or worship therein and offerings made there, which have been in form
of money sweats, flowers and fruits and other articles and things, have
always been received by the defendants 3 and 4 through their pujaris.
Para 30. That no Mohammedan could or ever did enter in the said temple
building. But even if it be attempted to be proved that any Mohammedan
ever entered it which would be totally wrong and is denied by the answering
defendants, no Mohammedan has ever been allowed to enter it or has ever
attempted to enter it at least ever since the year 1934.
Para 31. That in the year 1950, The City Magistrate, Faizabad the defendant
no.7 without any lawful cause and with the active connivance of defendants
nos.5,6 and 8 and under the wrong persuasion of some of the plaintiffs
attached the main temple of Janam Bhoom in a proceeding under Section 145
Cr.P.C. and placed it under the charge of defendant no.1 as receiver on 5.1.50
with all the articles mentioned in list B appended hereto.
Para 32. That the answering defendants have been wrongfully deprived of
their management and charge of the said temple and have ever since the said
wrongful attachment been waiting for the delivery of the charge and
management of the same to them but since the defendant no.7 consigned the
proceedings with a direction to take them out again after the temporary
injunction in suit no.2 of 1950 mentioned in the plaint is vacated, while
retaining the attachment and the Receiver, who refused to hand over charge
and management of the temple to the answering defendants the latter had to
file suit no.25 of 1959 for delivery of charge and management of the temple
88
by removing the Receiver.
Para 33. That the said suit of the answering defendant was filed against
the Muslim public under Order 1 Rule 8 C.P.C. making some of the plaintiffs
and defendants of the present suit as parties and the said suit is pending in the
court of the Additional Civil Judge, Faizabad.
Para 34. That the suit is time barred and the plaintiffs for the Muslim
community or any of its members have not been in possession within
limitation over the property in dispute.
Para 35. That even if the plaintiffs succeed in showing that any Muslim
ever said prayers in the building in question or used the same as a Mosque, or
that the possession of the answering defendant and the deity (Shri thakur
Ram Janki) was for any period of time disturbed by the Muslims or any of
them, the answering defendant and the Deity, have again matured their title
by continuos and adverse possession, open and hostile to the plaintiff and
their community by remaining in continuous possession of the said building,
that is the temple of Janam Bhoomi for more than 12 years and in any case
ever since 1934, during which period the Hindus have been continuously
doing worship and making offerings to the deity installed therein and the
answering defendant have been managing the said temple and taking
offerings made thereat.
Para 36. That the sketch map Annexure A and the list of articles
Annexure B are made part of the written statement.
Faizabad Dated: Nirmohi Akhar Defendant No.3
22
nd
August 1962/24.08.1962 Mahant Reghunath Dass
Defendant No.4
Sd./- Mahant Raghunath Dass
through:
Sd./- Counsel for the defendant no.4
14B/ 1 ka 1
89
O.O.S.No.4 of 1989
The Sunni Central Board of Wakf U.P. & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants

Additional written statement on behalf of Nirmohi Akhara and Mahant
Raghunath Dass, defendants 3 and 4.
Para 37. The contents of paragraphs 6A to 6D of the plaint are denied.
Even if it were proved that any person known as Mahant Raghubar Dass
made any admissions or statements or averments in the said suit the
answering defendants are not bound by the same and their title and interest in
the temple of Janam Bhoom can in no way be affected.
Para 38. The contents of paragraph 6E are denied. The building in
dispute in the present suit is certainly a temple and not a mosque. The
decision if any in the above noted suit of 1895 cannot and does not operate as
Resjudicata in the present suit, nor is the said decision any piece of evidence
in the present suit.
Para 39. The contents of para 6-F of the plaint are denied. The building
in question in the present suit is a temple of Janam Bhoom and not a mosque
as alleged by the plaintiff.
Para 40. That the contents of paragraphs 6A to 6F do not form part of
pleading but contain argument and references to evidence.
Para 41. That the answering defendants do not derive any title from the
said Mahant Raghbar Dass of suit No.61/280 of 1885 and are not bound by
any actions or conduct of the said Raghubardass in the said suit.
Dated:25.01.1963 Sd./- Mahant Raghunath Dass
90
O.O.S.No.4 of 1989
Reg. Suit No.12 of 1961
The Sunni Central Board of Wakf U.P. & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants

Additional written statement on behalf of Nirmohi Akhara and Mahant
Raghunath Dass, defendants 3 and 4.
Para 37. The contents of the amended paragraph 11(a) of the plaint are
totally wrong concocted and are denied.
Para 38. The building in question was always a temple as shown in the
written statement of the answering defendants Emperor Babar never built a
mosque as alleged by the plaintiffs and Muslims or were never in possession
of the building in question.
Para 39. The allegation of the plaintiffs in their amended paragraph 11(a)
of the plaint that some mischievous persons entered the mosque and
described it is only a mischievous concoction. No question of the Muslims
perfecting their title by adverse possession or of the extinction of the right,
title or interest of the temple and of the Hindu public at all arises as the
Muslims were never in possession.
Dated:28/29,11-1963. Sd./- Mahant Raghunath Dass
91
O.O.S.No.4 of 1989
Reg. Suit No.12 of 1961
The Sunni Central Board of Wakf U.P. & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants

Additional written statement on behalf of Nirmohi Akhara,
defendant No.3 Dated 21.08.1995.
Para 1. That the contents of original written statement filed by the
answering defendant No.3 are ret riated and are confirmed again.
Additional Written Statement
Para 2. That the contents of para 20 of the plaint is evasive and plaintiffs
who are not in possession nor they were in possession ever over the disputed
inner or outer site. The narration of Receivers possession in this para by
plaintiffs can only be clubbed with the inner disputed site i.e. the main
temple bounded by letters B, B1, B2 B3 D2 D1 & Letters D.C. B. shown in
annexure A map to this additional w.s.
The outer part of disputed sites comprises with Sri Ram Chabutara temple,
Chhatti Pujan Sthal, Panch Mukhi Shankar Ganesh Ji Kirtan Mandap,
Bhandar House of Panches of Nirmohi Akhara. All belonging to Nirmohi
Akhara and has ever been in the possession of Nirmohi Akhara through
panches of Nirmohi Akhara from before the human memory. Even on the
date of attachment under the order of Additional City Magistrate, Faizabad
dated 29.12.1949 an attachment Fard was prepared. A true copy is being
attached as Annexure C to this Additional Written statement.
Para 3. That contents of amended plaint para 21 A is denied except the
factum of demolition. The real fact regarding Sri Ram Chabutara temple,
Chhatti Pujan, etc. as narrated above has been concealed and purposely not
adverted in this paragraph against the following existing facts and established
92
fact chronologically as follows
(1) The Sub Judge, Faizabad while holding that CHARAN (feet) is
embossed on the Chabutara which is being worshipped. On a
Chabutara over that Chabutara of Idol of Thakurji is installed. The
Chabutara is in possession of the defendant No.3. Nirmohi. The
District Judge, vide his Judgment while holding that it is most
unfortunate that a Masjid should have been built on a land specially
held sacred by the Hindues, Judges Judgment.
(2) In regular suit No.256 of 1922 between Mahanth Narottam Das and
Mahant Ram Swaroop Das (representing Nirmohi Akhara) with regard
to realising dues from the hawkers in the area belonging to the parties
following statement was made by the counsel on behalf of Mahant
Narottam Das, which reads as under:-
The land marked red in the map was all along parti land till the
defendant made the constructions in dispute. The land belongs to the
Nazul and the plaintiff as Mahant of the Janam Asthan and his
predecessor have all along been in possession and has basis of his title
on possession. No lease from Nazul has been taken. They have been
holding the land under an Iqrarnama from the Shahi times. There has
been no settlement decree
Defendants pleader says:-
I admit para 1 of the W.S. the land never belonged to Nazul
department.
(3). In a suit No.95 of 1941 between Mahant Nirmohi Akhara namely Ram
Charan Das and Raghunath Das a Commission report was prepared.
In the said report at item No.2 Description of Temple Ram Janam
Bhumi belonging to Nirmohi Akhara was specifically mentioned. At
item No.3 of the said report name of Sita Koop belonging to Nirmohi
Akhara (Annexure-A).
Para 4. That the main temple of Sri Ram Janam Bhumi has ever been so
surrounded by the holy pious places of religious importance like Sumitra
Bhawan, Temple Sita Koop temple, etc. as narrated above. Sita Koop is the
pious well, had a legend behind it. Its pious water had ever since been a
source of peniral inspiration of religious faith and therefore Muslim
93
community had no way to access the inner structure of suit property since
long.
Para 5. That the temples Sri Ram Chabutara, Chhatti Pujan, Gufa
temple of Chabutara etc. shown in the map in the outer part of disputed site
with main structure demolished by miscreants, it is only defendant no.3 is
entitled to get it restructured as it existed on 5.12.92 and the defendant no.3
is also entitled to get restored the other pious places of temples of defendant
no.3 as narrated above, which was demolished on 22.3.1992 by
U.P.Government.
Para 6. That the contents of para 21-B are denied. The full description
of outer courtyard has not been given by the plaintiff purposely.
Para 7. That contents of para of para 21/c is admitted which deals with
notification and appointment of statutory receiver. The other part of para is
denied.
Para 8. That Nirmohi Akhara defendant No.3 is the Panchayati Math of
Rama Nandi sect of Vairagies and as such is a religious denomination
following its own religious faith and pursuit according to its own custom
prevalent in Vairagies sect of Sadhus. The custom of Akhara Nirmohi
Akhara have been reduced in writing on 19.3.1949 by registered deed.
Para 9. That plaintiff Nirmohi Akhara owns several temples in it and
manages all of such temples through Panches and Mahanth of Akhara. The
whole temple and properties vest in Akhara i.e. defendant No.3. The
defendant No.3 being a Panchayati Math acts on democratic pattern. The
management and right to managnement of all temples of Akhara vest
absolutely with Panches of Akhara and Mahanth being a formal head of
institution is to act on majority opinion of Panches.
Para 9A. That on 23.2.1992 contrary to the direction passed by Hon'ble
Supreme Court dated 15.11.91 and the order of High Court dated 7.11.89 the
State of Uttar Pradesh committed contempt of court and demolished various
94
temples including Sumitra Bhawan temple, Lomash Chabutara temple, and
Sita Koop temples surrounding the eastern and southern place of main Ram
Janam Bhumi temple and Sri Ram Chabutara temple belonging to Nirmohi
Akhara filed contempt of court petition in the Hon'ble High Court, initiating
contempt proceeding against the B.J.P State Government and its employees
and others and also filed application under order 39 Rule 2 A C.P.
Para 10. That on 6.12.1992 the outer portion which included Chabutara
Ram Temple Chhatti Pujan, Sita Rasoi, Bhandar grah of Nirmohi Akhara
were also demolished along with main temples.
Para 11. That since in view of judgment of Apex Court of India dated
24.10.94 the successful party having title over the disputed site will be
entitled to have obtained other properties. As such the defendant no.3 is
entitled to have the delivery of charge of all properties even including the
offering made to the deity of Nirmohi Akhara and a mandate be issued to
statutory Receiver for handing over all the properties and offering to
defendant no.3.
Dated: Nirmohi Adhara
Through Sd./- Mahant Bhaskar Das
95
In the Hon'ble High Court of Judicature, at Allahabad, Lucknow Bench,
Lucknow
In re:
O.O.S.No.4/1989
The Sunni Central Board Plaintiff
Versus
Sri Gopal Singh Visarad .Defendants
AFFIDAVIT
I Mahant Bhaskar Dass Chela M.Baldeo Das aged 68 years Resident
of Naka Muzaffra Hanuman Garhi, Faizabad do hereby solemnly state and
affirm as oath as below:-
1. That deponent is sarpanch and the General Attorney of defendant No.3
and is fully conversant with the fact of the case.
2. That contents of application from para 1,7 and 4 to 10 are ture best of
my knowledge and contents of para 3,9A,11 are believed to be true.
Sd./-Mahant Bhaskar Dass
Deponent
Lucknow
Dated 21-8-1995
VERIFICATION
I, the above named deponent do hereby verify the contents of para 1 to para 2
are ture to my knowledge and part of para 2 of it to my belief. Nothing
material has been cocealed so help me God.
Verified this day of 21 August 1995 at Lucknow
(Mahant Bhaskar Dass)
I Indentify and personally known that the deponent who has signed before
me.
(R.L.Verma)
ADVOCATE
Solemnly affirmed before me on the day of 21.08.1995 at about 10.30
A.M.the deponent has been Identified by Shri R.L.Verma (Advocate). I have
96
satisfied myself by examining the deponent who has been understands its
contents of this affidavit which has been read over and explained to him.
97
O.O.S.No.4 of 1989
Reg. Suit No.12 of 1961
The Sunni Central Board of Waqfs U.P. & Ors. Plaintiffs
Versus
Sri Gopal Singh Visharad & Or. .Defendants

The petitioners Defendants beg to submit as follows:-
1. That the Govt. is not interestted in the properties is dispute and as such
the petitioners dont propose to contest the suit.
2. That the petitioners, in the circumstances be exempted from costs.
3. That the petitioner defendants 6 to 8 are State officials and their
actions in respect of the properties in dispute were bonafide in due
discharge of their official duties.
4. That the petitioner defendants dont contest plaintiffs application u/o 1
& 8 C.P.C.
In the circumstances it is prayed that the petitioner defendants
be exempted from costs of the suit.
Place on record
now W.S. filed Sd./-
Narayan Das Khattry
D.G.C(C)
for defendants 5 to 8
23.04.1962/28.05.1962
98
114/ 1ka 1
O.O.S.No.4 of 1989
Reg. Suit No.12 of 1961
Written statement on behalf of defendant No.9 u/order 8 rule I.C.P.Code
The Sunni Central Board & Ors. Plaintiffs
Versus
Sri Gopal Singh & Ors. .Defendants

Claim for declaration and recovery of possession.
The defendant No.9 submits as follows:-
1. Has no knowledge.
2. Has no knowledge.
3. Has no knowledge.
4. Has no knowledge.
5. Denied subject to the additional pleas.
6. Has no knowledge.
7. Has no knowledge.
8. Has no knowledge.
9. Has no knowledge.
10. Has no knowledge.
1. Has no knowledge.
2. Has no knowledge.
3. Only this much is admitted that answering defendant was appointed as
receiver of the building under dispute by the City Magistrate under an
order under Sec.145 Cr.P.C. The building with its contents was
delivered to the answering defendant on January 5
th
1950.
Para 14. Denied.
1. Has no knowledge.
2. Has no knowledge.
3. Admitted.
4. Has no knowledge.
19. Denied
99
20. Denied
21. Denied
22. Need not replied.
23. Has no knowledge.
24. Plaintiffs are not entitled to any relief against the answering defendant.
Additional Pleas
25.The tent shape structures are alleged in para 5 perhaps refer to small
temple with idols- installed belonging to the Nirmohi Akhara which
stands outside the walls of the building in dispute and its existence is
admitted.
Dated Faizabad: Sd./-
July 28, 1962 Priyadutt Ram
Receiver,
answering defendant No.9
100
59 A 1/1
O.O.S.No.4 of 1989
O.S.No. 12 of 1961
Reg. Suit No.12 of 1961
Central Sunni Central Wakf Board & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad through L.R. & Ors. .Defendants
Written statement of defendant No.10 President Akhil Bharat Hindu
Mahasabha.
1. The contents of para 1 of the plaint are not correct and as such are
denied.
2. The contents of para 2 of the plaint are not correct and as such are
denied.
3. The contents of para 3 of the plaint are not correct and as such are
denied.
4. The contents of para 4 of the plaint are not correct and as such are
denied.
5. The contents of para 5 of the plaint are not correct and as such are
denied.
6A. The contents of para 6A of the plaint are not correct and as such are
denied.
6B. That the contents of para 6B of the plaint are matter of record in the
knowledge of the plaintiff as such not admitted.
6C. The contents of para 6C of the plaint are not correct and as such are
denied.
6D. The contents of para 6D of the plaint are incorrect and as such are not
admitted.
6E. The contents of para 6E of the plaint are incorrect and as such not
admitted.
6F. The contents of para 6F of the plaint are not correct and as such are
101
denied.
1. The contents of para 7 of the plaint are correct and admitted
except that the case is sensational. It is made sensational by the plaintiffs
and their community for no cause of action.
2. The contents of para 8 of the plaint are false and strictly denied.
3. The contents of para 9 of the plaint are wrong and as such are denied.
The passing of the U.P.Wakf Act (XIII) of 1935 was itself an atrocity
committed by the British Rules and after regaining independence by a
part of India on unauthorized and unconstitutional division of India, on
two nation theory, the part of India, now known as Bharat is Hindu Nation
in which no such Act is ever acceptable unless adapted by a lawfully
constituted Government of the Union of India.
4. The contents of para 10 of the plaint are wrong and misconceived and as
such are denied.
5. The contents of para 11 of the plaint are false and strictly denied.
11(a) The contents of para 11(a) of the plaint are false and strictly
denied.
12. The contents of para 12 of the plaint are wrong and denied.
13. The contents of para 13 of the plaint are admitted so far as they concern
record, the rest thereof is denied.
14. That the contents of para 14 of the plaint are wrong and denied. On
regaining independence the original Hindu Law have revived, the
constitution itself having been imposed by misrepresentation is voidable
ab initio and the country is to be ruled totally according to Hindu Law and
cannons and Hindu Jurisprudence under which the question of alleged
legal and constitutional right of the plaintiffs does not arise.
15.That the contents of para 15 of the plaint are not correct and as such are
not admitted except the filing of the suit by defendant No.1.
16.That the contents of para 16 of the plaint are matter of record to be proved
by the plaintiffs and need no reply.
17. That the contents of para 17 of the plaint are matter of record to the
knowledge of the plaintiff and as such not admitted.
18. That the contents of para 18 of the plaint are not correct and as such are
not admitted except the matter of record of concerned court.
102
19.That the contents of para 19 of the plaint contain question of law which
need no reply.
20.That the contents of para 20 of the plaint are quite false and as such are
strictly denied.
21.That the contents of para 21 of the plaint concern record within the
custody of the plaintiff, and not in knowledge of this defendant, nor any
notice was given to this defendant as such the suit is liable to fall down on
this ground alone.
22.That the contents of para 22 of the plaint are not correct, the suit is not
properly valued. The property values more than millions of rupees and
proper court fee is not paid.
23.That the contents of para 23 of the plaint are wrong and as such denied.
The plaintiffs have got no cause of action any locus standi to file this suit.
24.That the contents of para 24 of the plaint are wrong and misconceived.
The plaintiffs are entitled to no relief and the suit is liable to be dismissed
with heavy and special costs.
ADDITIONAL PLEAS
25.That the plaintiffs have never been in possession of the property in
dispute, nor they have any right to take possession thereof or make any
constructions thereon, under the law of the country as aforesaid.
26.That the land and property in dispute has been throughout in
uninterrupted possession of the Hindu community as a whole and in the
ownership of Lord Sri Ram, and the plaintiffs never had or have any
concern with the land and property in dispute.
27.That the plaintiffs have no locus standi to file this suit.
28.That the suit is liable to be dismissed for non-joinder of necessary parties.
29.That the suit is prima facie time barred and is liable to be dismissed on
this ground as well.
30.That the suit is quite undervalued and no proper court fee has been paid
for the reliefs claimed.
31.That the national community of the Hindus is being harassed by the
plaintiffs for no fault of theirs i.e the Hindus by way of this suit.
103
32.That the matter involving a national question of the nation regaining
independence on division of the count two nation theory i.e. the Hindu
Nation and the Muslim Nation the question of removal of atrocities or
grant of any national claims of the plaintiffs can be settled by Union of
India represented by a lawfully constituted Government only by enacting
a law regarding thereto. and as such is beyond the scope of jurisdiction of
the court.
Amended and added on
separate sheet vide Courts
order dated 28.10.1991
Sd./- 11.11.1991
33.That the President of India promulgated Ordinance No.9 of 1990, known
as Ram Janma Bhoomi Babri Masjid (Acquisition of Area) Ordinance,
1990, hereinafter referred to as the First Ordinance.
34.That the President of India promulgated Ordinance No.10 of 1990, known
as Ram Janma Bhoomi Babri Masjid (Acquisition of Area) withdrawal
Ordinance 1990, hereinafter referred to as the Second Ordinance.
35.That it may be mentioned here that the first Ordinance was issued by Sri
V.P.Singhs Government as three point formula was chalked out to resolve
the controversy, under which the land was to be acquired by the Central
Government and status quo was to be maintained as existing on that date
and thereafter the matter was to be referred to the Supreme Court under
Article 143 of the Constitution to seek opinion on the relevant points.
36.That the said formula was appreciated by the citizens and political as well
as religious leaders of both the community. In T.V. and A.I.R., interviews
with political and religious leaders were broadcast and the nation was told
by the Government that the matter has been resolved.
37.That immediately after the issuance of the First Ordinance, the Central
Government appointed Commissioner of Faizabad Division as authorised
person to take over the charge of the properties concerned as required by
Section 7 of the First Ordinance and consequently charge of the entire
property was taken over by the Commissioner, Faizabad Division on
20.10.1990.
38.That in view of the above facts, the First Ordinance was implemented in
facts and spirit both and hence the land covered by the First Ordinance
104
vested in the Central Government free from all encumbrances and
charges, and the receiver of the property was freed from all liabilities and
the interim orders passed in the case came to an end.
39.That it is submitted that the First Ordinance was implemented and carried
out and no part of the same remained to be complied with.
40.That as a consequence of issuance of First Ordinance, the following
things happened.
(k) That the First Ordinance was implemented fully.
(ii) That the land in question vested in the Government and the same was
freed and discharged from any trust obligation, mortgage, charge, lien
and all other encumbrances affecting them.
(iii) That any order of attachment, injunction, decree or any order of court
restricting the use of such property in any manner and also the order
appointing the receiver in respect of the whole or in par of such
property were withdrawn.
(iv) That with the commencement of the First Ordinance the pending suits,
appeal or any other proceedings of whatever nature in relation to the
property in question pending before any Court stood abated.
(v) That the Central Government took the management of the property in
question also and also appointed authorised person who took charge of
the property in question under Section 7 of the First Ordinance.
(vi) That the Commissioner of Faizabad Division was appointed as
authorised person to take possession of all the properties in question
under Section 7 of the First Ordinance as also the entire management
from the receiver and in consequence of that, the possession as well as
the management of the property in question was taken over by and on
behalf of authorised person.
41.That to the utter surprise of the citizens, Sri V.P.Singh, the then Prime
Minister decided to withdraw the First Ordinance under pressure of
certain fundamentalists and consequently the Second Ordinance was
issued withdrawing the First Ordinance. It is submitted that Sri V.P.Singh
decided to withdraw the First Ordinance so that the issue may be kept
alive and may be utilized as a weapon in the election.
42.That by the Second Ordinance, it has been provided that:-
105
(a) Right, title and interest in relation to the area acquired shall be deemed
never to have been transferred and vested in the Central Government;
(b) Suit, appeal or other proceeding of whatever nature relating to
property in question pending before any court has to be deemed as
restored to the position existing immediately before the
commencement of the First Ordinance;
(c) The appointment of any receiver in respect of the property in question
shall be deemed never to have been withdrawn;
(d) Any other action taken or thing done under the First Ordinance shall
be deemed never to have been taken or done;
43.That it is respectfully submitted that it is not within the power of the
President to restore the property to its original position, which has vested
in the Government free from all charges encumbrances etc. by virtue of
the First Ordinance. Once the property vests in the Government, it cannot
be retransfered to original owner or owners specifically when the owners
have not been named in the ordinance.
44.That the President can issue any Ordinance which is within law making
powner of the parliament, but he cannot pass judicial orders restoring the
suits and the proceedings which have abated as a consequence of
acquisition of the property in dispute, nor can be revive the interim orders
passed by the Court.
45.That even though doctrine of separation of powers has not been strictly
applied in the Constitution of India but in pith and substance, there is
separation of powers. There are three organs of the State viz. the
Executive, the Legislature and the Judiciary. The Executive functions are
performed by the President in consultation with the Council of Ministers
being the Executive Head of the Union. The president also exercises
Legislative powers by issuing Ordinances under Article 123 of the
Constitution and within the meaning of Article 79 of the constitution, the
President is an integral part of the Parliament. The president exercises
judicial functions in a very narrow compass i.e. only under Article 72 of
the Constitution by deciding the matters of grant of pardon, suspension,
remittance and computation of sentences. Apart from the said judicial
power the President has no other judicial power under the Constitution.
106
46.That when the President issues Ordinance under Article 123 of the
Constitution, he exercises Legislative powers. The Legislative power of
the president is coextensive with the power of the parliament to enact
laws. Therefore, the president cannot make any law by Ordinance which
is not within the power of the parliament. Article 123(3) of the
Constitution clearly provides that if and so far as an Ordinance under this
Article makes any provision which the Parliament would not under this
Constitution be competent to enact, it shall be void.
47. That it is respectfully submitted that the parliament can enact law only on
the subjects numerated in the union List or the Concurrent List or
otherwise is competent to enact any law which is specifically provided for
the Constitution. It is submitted that once a property is acquired and as a
consequence of vesting in the government, the suits and the proceedings
in respect of that property abate, interim orders come to an end and
receivers appointment is nullified, the parliament cannot change its view
later on and declare that the things happened as mentioned above, may be
deemed not to have happened. The parliament cannot revive a matter
once abated. The consequential orders have to be passed by the Court in
view of the new facts and circumstances and it is not within the
Legislative competence of the Parliament to pronounce any judgment,
grant any interim order or revive an abated suit.
48.That revival or abatement of suits, passing of interim orders and
appointment of receiver, all are done by the Court and as such they are
judicial functions and not legislative functions. It is not open to the
parliament to enter into all these controversies. The Parliament is a law
making Institution and as mentioned above, it cannot pronounce any
judgment on any issue even though the same may be due to revival of an
enactment.
49.That since the president has exercised judicial powers of the State which
are not vested in him or in the Parliament, the revival of the appointment
orders of receiver becomes illegal. Once a receiver is discharged from his
liability, he cannot again be appointed as receiver by the Parliament. He
can again be appointed receiver only in accordance with Order 40 of the
C.P.C. Thus once a receiver is out of office, he cannot perform such
107
functions unless he is appointed by any competent court. It is submitted
that under Order 40 Rule 3 of the C.P.C., every receiver appointed by the
Court has to furnish such security as the court thinks fit. It is certain that
as soon as the appointment of receiver is revoked, the security furnished
by him comes to an end. Every term and condition imposed by the Court
at the time of appointment on receiver comes to an end as soon as he is
removed from office. The duty and powers of the receiver cannot be
revived by a legislation. it is only for the Court to pass appropriate
orders. Thus the revival of the appointment of the receiver by the Second
Ordinance is void ab initio.
50.That there is no provision in the Second Ordinance for the authorised
person to hand over charge of the properties to the original receiver. In
the instant case, the authorised person took over charge of the properties
in question from the receiver and as such he can restore the things or
property to the receiver only when there was any provision in the Second
Ordinance. Therefore, the authorised person is still legally custodian of
the properties taken by him from the receiver and as such the receiver
originally appointed cannot start function automatically in pursuance of
the Second Ordinance.
51.That it is clear that at the time of issuance of the Second Ordinance, the
suit and the proceedings had already abated. Interim orders passed by the
Court had come to an end and the appointment of receiver was nullified
from the date the First Ordinance came into force. Therefore, the things
which were not existing or were not in operation or in force, could not be
revived by the Second Ordinance.
52.That it is respectfully submitted that after enacting any law or issuing any
Ordinance, it cannot be said that the same shall be deemed to never have
been issued or passed. If this practice is adopted, there will be confusion
and injustice with the public. Suppose by one Ordinance, for certain
offences death sentence is provided and in trial summary procedure is
applied and in pursuance of that Ordinance, a person is tried and
sentenced to death and he is executed. Whether it will be open for the
president to say that the said Ordinance be deemed to have never taken
effect. The simple answer is no. If this is allowed to be done, the very
108
purpose of doctrine of rule of law would have no meaning and by issuing
any Ordinance, the president may exercise the powers which are not
vested in him and may undo many things which was not the intention of
the Constitution-makers.
53.That this case is glaring example of the misuse of Ordinance making
power by the President. It is clear that because of mala fide and
extraneous considerations, the Government of Sri V.P. Singh conceded to
the demand of certain disgruntled persons and advised the President to
withdraw the First Ordinance.
54.That it is strange that in the First Ordinance it is mentioned that the
circumstances exist which render it necessary to take immediate action,
and the same very words are repeated in the Second Ordinance too. The
submission is whether the circumstances which were existing for issuing
the First Ordinance, went just reverse within a couple of days which
necessitated issuance of the Second Ordinance withdrawing the First
Ordinance.
55.That it has been held that separation of powers, rule of law and equality
are the basic features of the Constitution and the Parliament cannot
exercise judicial functions and cannot declare judgment as mentioned
above or pass interim orders. Passing of interim orders and their revival,
the abatement of suits and their revival, the appointment of receiver, all
are judicial functions which are not to be performed by the Parliament;
otherwise there would be no use of classification of powers of different
organs of the State and there will be overlapping of powers and as such
the Second Ordinance is void.
56.That the impugned Second Ordinance hits the basic structure of the
Constitution and the ratio decindi of the cases of Keshwanand Bharti,
Indira Nehru Gandhi and Minerva Mill is applicable in this case.
57.That it may be mentioned here that the impugned Second Ordinance was
promulgated on 23.10.1990 and the same was to be laid before the
Parliament in view of the provisions of Article 123 of the Constitution.
58.That both the Houses of the Parliament assembled on 27.12.1990 and six
weeks, which means 42 days, have expired on 6.2.1991.
59.That during the said session of the Parliament which commenced on
109
27.12.1990, the First Ordinance was not laid before any House of the
Parliament. The matter was not discussed in the Parliament.
60.That till the dissolution of Lok Sabha also, the First Ordinance was not
laid before any House and the matter was not discussed by any House of
the Parliament.
61.That the Second Ordinance has not become an Act so far and as such
under Article 123 of the Constitution, the second Ordinance ceased to
operate from 7.2.1991.
62.That the Second Ordinance had been promulgated under Article 123 of
the Constitution and it also makes certain provisions while withdrawing
the First Ordinance. Therefore, Article 123 of the Constitution prescribes
that every such Ordinance shall cease to operate at the expiration of six
weeks from the reassembly of the Parliament or before the expiration of
said period, resolutions disapproving the same are passed. It is
submitted that the words every such Ordinance are very significant and
they require that every Ordinance promulgated under Article 123 of the
constitution will be life-less after six weeks of the date of reassembly of
the parliament. There is no exception to this provision and the same is
mandatory and to be construed strictly. In view of these facts, the Second
Ordinance has ceased to operate with effect from 7.2.1991.
63.That it is note-worthy that the First Ordinance has not been repealed by
the Second Ordinance but the same has been withdrawn. There is
difference between repeal and withdrawal.
64.That it is respectfully submitted that the First Ordinance was withdrawn
by the Second Ordinance and it was the second Ordinance which was to
be laid before the parliament within six weeks, but it was not done as a
result of which the Second Ordinance ceased to operate with effect from
7.2.1991.
65.That it is submitted that due to not following the procedure established by
law and the law declared under Article 123 of the Constitution, the
government failed to lay the second Ordinance before the Parliament
within the time prescribed, the result of which is that the provisions of
Second Ordinance cannot be deemed to be in force with effect from
7.2.1991.
110
66.That by the Second Ordinance, the First Ordinance was withdrawn
subject to the provisions made under Section 2. Section 2, sub clauses
(a), (b), (c) and (d) create legal fiction and certain things are to be deemed
under the said provisions. Since the Second Ordinance has ceased to
operate, the provisions of Section 2 are no longer in force and deeming
clause comes to an end.
67.That it is respectfully submitted that a legal fiction was created by the
Second Ordinance by using the word deemed. The simple meaning of
the word deemed is that by operation of law it is to be presumed
though not actually happened and in view of this fact the deeming comes
to an end with the cessation of the Second Ordinance.
68.That the Second Ordinance is a withdrawal Ordinance and not repealing
Ordinance. The First Ordinance was withdrawn subject to the provisions
of Section 2 of the Second Ordinance. A legal fiction was also created
viz. deemed. since the Second Ordinance has ceased to operate with
effect from 7.2.1991, the deeming clause also comes to an end and new
the things done by the First Ordinance have become final.
69.That the effect of the cessation of the Second Ordinance is that the
Second Ordinance has no legal existence now and the things happened
under the First Ordinance have become final and operative and the
withdrawal of the First Ordinance has come to an end. Hence the First
Ordinance stood revived.
70.That in view of the facts mentioned above, it is respectfully submitted that
the suit filed by the Sunni Central Board of Waqfs and others cannot be
tried as it has already bated by operation of law.
Amended vide Courts order
dated 23.11.92
71. That the suit filed by the plaintiffs is not maintainable as the provisions
of Section 92 of the C.P.C. and Section 14 of the Religious
Endowment Act have not been complied with.
72. That the instant suit filed by the plaintiffs is not maintainable as no
person of the Waqf Board (plaintiff No.1) has verified the suit. The
suit has been verified by plaintiff No.4 without any sanction, authority
or power from the Waqf Board, plaintiff No.1.
111
73. That under Section 64 of the Waqf Act, only Waqf Board can file a
suit. Since the instant suit has not been filed by the Waqf Board as the
same has not been verified by any authorised person of the Waqf
Board, the same is not maintainable and liable to be dismissed.
74. That the Waqf Board cannot file suit with private persons. In the suit
filed by the Waqf Board, individual plaintiffs cannot be impleaded.
The instant suit filed by the plaintiffs, therefore, cannot be said to be a
suit filed by the Waqf Board and so in view of Section 64 of the Waqf
Act, the suit is not maintainable.
75. That the Waqf Board is an instrumentality of the State within the
meaning of Article 12 of the Constitution. It being the State agency,
cannot file a suit against the State itself under whose control it
functions.
76. That nobody or authority which is a State within the meaning of
Article 12 of the Constitution can file any suit in representative
capacity sponsoring the cause of one particular community. Every
such State has to function impartially and it should have no concern
with the interest of a particular community.
77. That no State authority can indulge in any manner in communal
activities and cannot file suit against any community. Therefore,
plaintiff No.1 had no authority or power to file the instant suit in
representative capacity on behalf of Muslim community and against
Hindu community.
78. That the Waqf Board is not a person within the meaning of Order I
Rule 8 of the C.P.C. and therefore, it cannot file a suit invoking the
said provision. As such the instant suit filed in representative capacity
and the permission granted by the court to sue as such is inoperative
and void.
79. That the suit as framed is a suit for declaration only and the relief for
delivery of possession is in the words that In case in the opinion of
the court which means that the plaintiffs are not seeking relief of
possession and leave it to the court to grant possession suo motu. The
reason is obvious that the suit was barred by limitation and so specific
prayer has not been made.
112
80. That vide gazette notifications dated 7
th
and 10
th
October, 1991, the
U.P. Government has acquired 2.77 acres of land for the purposes of
providing amenities to the pilgrims and also to develop the same for
tourism purposes around the area where Lord Rama, the principal
deity sits. The Waqf Board and one Mohammad Hashim have
challenged the said notifications alleging that the said acquired land is
part of the property in dispute and as such the suit cannot proceed
unless appropriate amendment is made by the plaintiffs as the suit will
stand abated so far as it relates to the acquired land.
Sd./-
H.S.Jain
Advocate
for Defendant No.10
25.11.92
113
Original Suit No.4 of 1989
Reg. Suit No.12 of 1961
Sunni Central Board of Wakfs & Ors. Plaintiffs
Versus
Gopal Singh Visharad & Ors. .Defendants
ADDITIONAL WRITTEN STATEMENT UNDER ORDER VIII RULE
9 C.P.C. BY DEFENDANT NO.10 HINDU MAHASABHA.
The defendant, above named, respectfully begs to submits as
1. That the contents of para 21A of the amended plaint are not admitted.
No Masjid or Babri Masjid ever existed at the land in question, and as
such no Masjid was demolished on 6.12.1992. It is further false to
allege that idols were placed only in the night of 22
nd
/23
rd
December,
1949, but the fact is that idols were in existence at the place in
question from the time immemorial. It may be mentioned here that
Babar was an invader and he had no legal authority to construct any
Masjid at the sacred place of Hindus i.e. the birth place of Lord Shri
Ram. Mughal invader Babar through his commander Mir Baqi tried to
demolish the old glorious temple of Lord Shri Ram at the place in
question, but he could not succeed in his mission. After the riot in
1934, the three domes of the temple were damaged. It is submitted
that before the said date, the outlook of the building was of pure Hindu
temple, but while carrying out repair works, the Britishers tried to give
it the shape of mosque and three domes were constructed over kasauti
pillars which were of temple. The Hindus have all along been in
possession over the entire area of Shri Ram Janma Bhoomi. The land
in question has all along been in possession of Hindus and devotees of
Lord Shri Ram. The worship of Lord Shri Ram Lala Virajman is
going on since the time immemorial. It is further submitted that with a
view to rennovate the old temple and to construct a new one, Kar
Sewa was performed and the said action cannot be said to be in
violation of any order passed by any Court. There was no order in
114
force against Hindus in respect of the temple property/structure. it is
submitted that the people of the State had voted for Bhartiya Janata
Party in the election as it was committed to fulfil the aspirations of the
people to construct a glorious Shri Ram Temple at the place in
question. It is true that the Bhartiya Janata Party Government did not
resort to firing and barbarian action which was adopted earlier by the
Government headed by Sri Mulayam Singh Yadav on 30.10.1990 and
2.11.1990. It is further submitted that the Government cannot suppress
the Will of the people and it has to honour and fulfil aspirations of the
people in the democratic set up. The Bhartiya Janata Party has neither
abetted for demolition of the structure, nor did anything in violation of
law. The devotees of Lord Shri Ram who were present in lacs
decided to demolish the old structure. In fact no offence was
committed and no law was violated in demolishing the structure of
Hindu temple with an intent to construct a big temple. At this place, it
may be mentioned here that the Hindus have never been fanatic; they
allowed every religion to flourish in Bharatvarsh. There is no
evidence in history to show that the Hindus ever demolished any
mosque or place of worship of any other religion. The history speaks
otherwise. Every Mughal invader and ruler from Mohammad-bin-
Qasim to Aurangzeb and even thereafter demolished, destroyed and
looted the temples of Hindus. The plaintiffs never had/have any
concern with the land in question and also they are not entitled for
restoration of the building or its possession.
2. That the contents of para 21-B of the amended plaint are not admitted.
The Muslim law cannot be made applicable in Bharatvarsh. Muslim
law is also subject to the provisions of Constitution; it is the
Constitution which is supreme and not any personal law, muchless
Muslim law. Muslims cannot use any open piece of land in question
for offering prayers and they also cannot encroach upon the land of
religious places of Hindus. Under Shastrik law applicable to Hindus,
the property once vested in the deity continues to remain of the deity.
It is specifically submitted that the entire property in question belongs
to Shri Ram Lala Virajman who is in the existence from the time
115
immemorial and is being worshipped by His devotees at the place in
question without any interruption till date. According to the own
averments of the plaintiffs, the place in dispute has got no significance
for them as they can offer prayers at any place, even in open.
It would be appropriate and in consonance with the principles of
secularism that the Muslims do not offer prayers within the vicinity
of the birth place of Lord Shri Ram Lala Virajman, which is sacred
for Hindus and offer their prayers beyond the area of Panchkoshi
parikrama. That will create brotherhood and peace everywhere. The
para under reply itself shows that the alleged mosque was unnecessary
and meaningless for Muslims too. It is further submitted that over the
land in question, no mosque ever existed and the Muslims are not
entitled to encroach upon the land in question or offer prayers at that
place.
3. That the contents of para 21-C of the amended plaint are not admitted.
It is further submitted that no mosque existed over the land in question
and no property or land belonging to mosque has been acquired. The
entire area covered under the Ordinance No.8 of 1993 and Act No.33
of 1993 belongs to Hindus and the devotees of Shri Ram Lala
Virajman. The judgment of the Hon'ble Supreme Court is being
misinterpreted and nowhere Hon'ble Supreme Court has held that the
area covered by the Act belongs to any mosque or adjacent area will be
provided for enjoyment of the crucial area of mosque portion as per
requirement.
4. That the relief clause 24-BB of the amended plaint cannot be granted
to the plaintiffs. It is further submitted that the said relief has not been
allowed to be added by this Hon'ble Court vide its order dated
25.5.1995. It is further submitted that the property in dispute has not
been described in Schedule-A to the plaint. The description in
Schedule A of the plaint cannot be termed as suit property as no
dimensions, width, the statement of survey numbers etc. have been
given for identifying the property as required by Order VII Rule 3
C.P.C. and hence the property described in Schedule-A of the plaint
cannot be termed as suit property being vague and unidentifiable on
116
the spot. The plaintiffs are not entitled for the possession of the
structure standing at the site as the land in question and the adjacent
area belongs to Hindus and devotees of Lord Shri Ram. Please also
see additional pleas.
ADDITIONAL PLEAS
5. That it is worth to mention here that Bharatvarsh was divided on the
basis of the religion and Pakistan was created for Muslims and the rest
part of Bharatvarsh remained for Hindus. Secularism was adopted in
the Constitution as it is one of the pillars of Vedic religion. No
religion of the World preaches religious tolerance and secularism
except the Vedic scriptures. No other community or religious group
can claim any privilege or additional rights in derogation of the rights
of Hindus. The rights of other religious group or community are
subject to the rights of Hindus.
6. That it is an undisputed fact that Lord Ram, Lord Krishna and Lord
Shiv are cultural heritage of India which has been recognized by
Constituent Assembly. In the original constitution, on which the
members signed, the pictures of our recognized cultural heritage may
be found which include the scene from Ramayana (conquest over
Lank and recovery of Sita by Lord Ram). Thus the citizens of this
country are entitled to pay homage to their Lord at His birth-place and
it being sacred place for Hindus cannot belong to Muslims or any
other community or religious group. Therefore, the claim of Muslims
over the land in question is unconstitutional and is also against Islamic
laws and in the circumstances, the plaintiffs cannot claim themselves
to be Muslims entitled to file the suit.
7. That it may be mentioned here that even according to the plaintiffs, the
devotees of Lord Shri Ram and Hindus in general came into
possession of the disputed structure on 22
nd
/23
rd
December, 1949 i.e.
before the commencement of the Constitution on 26
th
January, 1950.
If it is so, it cannot be said that the Hindus have committed any wrong.
They have rectified the curse of Mughal Slavery before the
commencement of the Constitution. The said action of invaders had
117
no sanction of law and after independence, it is the right of citizens to
nullify every misdeed and wrong action of the invaders.
8. That the entire area including the place in question belongs to deity
Lord Shri Ram Lala Virajman and his devotees and worshippers are
entitled to offer prayers, Pooja, Arti, Bhog etc. and to pay homage to
their Great Lord. They have also right to construct a glorious temple.
9. That it is remarkable to mention here that under the debris of
demolished temple structure, a lot of signs and materials concerning
temple have been found. The answering defendant believes that under
the orders of this Hon'ble Court, they would be in safe custody. It may
be mentioned here that a very big Chabutara beneath the present
structure exists which also reveals that there existed a glorious and big
temple of Lord Shri Ram. There is no evidence, signs or material at all
to show that there was any mosque.
10. That the statutory receiver has not been arrayed as party to the suit and
as such the plaintiffs cannot claim any relief against the receiver.
11. That Sunni Central Board of Waqfs has no legal authority to file the
suit and as such the suit is liable to be dismissed.
12. That the (amended) relief as prayed for by the amendment has also
become time-barred.
13. That the amended relief cannot be granted to the plaintiffs as the same
is not permissible under the law.
14. That the case is to be decided on the principles of justice, equity and
good conscience. Prayer for injunction has to be refused if the case of
the plaintiff does not come within the four corners of the said
principles. Since the plaintiffs have failed to prove that their case
comes within the ambit of justice, equity and good conscience, the suit
is liable to be dismissed, as no relief can be granted.
Lucknow: Dated: Sd./-
Sept. 12,1995 Defendant No.10
118
46 1/ 1ka 1
Original Suit No.4 of 1989
Written Statement Under Order VIII Rule 1 C.P.C.
In Re:-
The Sunni Central Board of Waqf & Ors. Plaintiffs
Versus
Sri Gopal Singh Vishrad & Ors. .Defendants
Written Statement on behalf of Baba Abhiram Dass and Pundarik
Mishra, Advocate Bajrandas and Satyanarayan Das defendant no. is as
follows:-
Para 1. The contents of Para 1 of the plaint is wrong and is denied.
Para 2. That the contents of para 2 of the plaint are absolutely wrong
and are denied. There was never any battle between Babar and
the Ruler of Ayodhya on any graveyard or Mosque alleged to be
built (as alleged) by the said Babar.
Para 3. It is wrong and denied.
Para 4. It is wrong and not admitted.
para 5. It is wrong and not admitted.
Para 6. That the answering defendant has no knowledge of the facts
mentioned in para 6 of the plaint hence the contents of para 6
are denied. The additional Paras added by the amendment as A
to P are wrong and denied. See further pleas.
Para 7. It is denied.
Para 8. The contents of Para 8 are absolutely wrong and not admitted.
Para 9. The answering defendant has no knowledge of the allegations
made in para 9 of the plaint hence they are denied. See
Additional pleas.
Para 10. The contents of para 10 is denied. See further pleas.
Para 11. Para 11 is wrong and all the allegations made therein are denied.
119
Para 12. Denied.
Para 13. The answering defendant has no knowledge about the
allegations made in Para 13 of the plaint. Only this much is
admitted that Babu Priya Dutt Ram was appointed Receiver of
the Janam Astahn Temple at Ajodhya by this Hon'ble Court.
Para 14. Denied.
Para 15. Para 15 is so far admitted that the defendant no.1 did file a true
case against a few Muslims and certain Government Officials
for injunction and declaration. The case was filed in this
Hon'ble Court on true and correct allegations.
Para 16. That the answering defendant admits only this much that
Parmahans Ram Chander Dass did file another suit in this
Hon'ble Court which is true and correct.
Para 17. That the answering defendant has no knowledge of the
allegations contained in para 17 of the plaint hence denied.
Para 18. That only this part of the Para 18 of the plaint is admitted that
Hindus do Puja etc. in the Janam Bhum temple and the Muslims
are not allowed to go near that temple, which they wrongly and
maliciously described as Mosque. The rest of the allegations of
this para are denied.
Para 19. Denied. The plaintiffs have no right to make the defendants to
contest the suit in a representative capacity as a self appointed
representative of the Hindu Community which extends from
Madras to Kashmir and from Dwarika to Calcutta. None of the
defendants represent all the Hindus in India. The Janam Bhum
temple is a public charitable Institution and the answering
defendant contest this suit in his individual capacity, there are
Hindu living in various parts of the world outside India.
Para 20. Denied.
para 21. That the answering defendant has no knowledge of the facts
mentioned in para 21 of the plaint, hence it is denied.
Para 22. Denied.
Para 23. That the contents of para 23 are wrong. The suit is hopelessly
time barred. The Muslims have not been in possession of the
120
property indispute since 1934 and earlier.
Para 24. That the plaintiffs are not entitled to any relief and suit is liable
to be rejected with costs.
FURTHER PLEAS
Para 25. That the members of the Hindu Community have from time
immemorial been worshipping the site of Janam Bhum upto this
time by virtue of their right and the Muslims were never in
possession of the temple called as Ram Janam Bhawan If ever
they were in interrupted possession of the falsely called Babri
Mosqu their possession ceased there on in 1934 and since then
Hindus are holding that temple in their possession and their
possession has ripened into statutory adverse possession thereon
since 1934. Even prior to 1934 continuous daily Hundu Puja is
being done in that temple and the Muslims have never offered
their prayers since 1934 in the temple falsely described as
Babri Mosque.
Para 26. That the said temple in dispute is a public charitable institution.
it does not belong to any sect, group, math or individual or
Mahanth or any Akhara and it is a public place of worship open
to all the Hindus. No individual Hindu or Mahanth can be said
to represent the entire Hindu Community as far as this ancient
temple is concerned.
Para 27. That the suit is time barred as no action was taken in time from
the orders of the City Magistrate under Section 145 Cr.P.C.
Para 28. that the suit is time barred and the plaintiffs were never in
possession over the temple in dispute since 1934 and the Hindus
were holding it adversely to them to their knowledge.
Para 29. That the suit deserves to be rejected because the Hindu Puja is
going on in the said temple from the past at least 34 years i.e.
1934 and admittedly from January 1950 when the City
Magistrate directed the defendant no.9 to carry on Puja as usual
in the said temple.
Para 30. That the suit under Order 1 Rule 8 C.P.C. is bad as no one
representing the Hindu Community has been made a defendant
121
in the suit hence the suit deserves to be rejected.
Para 31. That the suit be rejected with special costs as the plaintiffs have
impleaded the defendants 1 to 4 and 9 knowingly fully well that
they do not represent the Hindu Community but their individual
interest only.
Para 32. That the plaintiff or plaintiff no.1 who claim rights under Act
XIII of 1936 have no such right for the following among other
reasons:-
(a) That the U.P. Muslim Waqf Act No.XIII of
1936 is ultra vires, the Govt. of India Act
1935, which had come into force before the
passing of the above Act. It does not come
under any of the items of list II of the
Provincial list or list III of the concurrent
legislative list, item no.9 of the concurrent list
or item no.34 of the Provincial list cannot also
come to save the above legislature even on the
principle of Pith and substance. Item No.28 of
list III of the Constitution has therefore been
remodled.
(b) That any sanction under sub section (3) of
Section 80 A of the former Government of
India Act will not validate the legislation after
the repeall of the former Government of India
Act by means section 321 of the Government
of India Act 1935.
(c) That in case the Act is considered to be ultra
vires the suit is not being one relating to
administration of Waqf, taking of accounts,
appointment and removal of Mutwali, putting
the Mutwalli in possession or settlement or
modifications of any scheme of management
for which powers and duties have been
specified under section 18 (2) clause (e) of Act
122
XII of 1936, the present suit on behalf of the
plaintiff No.1 can not be filed as required or
permitted by the Act to be done by the Board
(Sec.6(3).
(d) That the Act containing privileges based on
classification of Waqfs on the ground of
religion, particularly section 5 (2) of the Act is
hit by article 14 and 19 of the constitution and
is void under Article 13 (1) of the
Constitution.
(e) That by Act XII of 1960, section 85 (2) of the
above Act has been repleaded. The saving
clause contained in the provision only saves
the operation of the repealed Act in regard to
any suit or proceedings pending in any court
or to an appeal or application for revision
against any orders that may be passed in such
suit or proceedings subject thereto any thing
done or any action taken in exercise of powers
conferred by or under those Act shall unless
expressly required by any Provision of Act
XIII of 1936, be deemed to have been done or
taken in exercise of the powers conferred by
the new Act as if the new act were in force on
the day on which such thing was done or
action taken. Section 9(2) of the Act XV of
1960 could not save the finality of decision of
Commission of Waqfs from being affected by
provisions of Chapter I of Act XVI of 1960
but when there is no saving clause with regard
to the decision u/s 5(2) in the provision to
section 83 (2) the finality attached by section
5(3) will vanish after the repeal of the
enactment.
123
(f) That the building and land in suit lying in the
Province of Oudh become subject of Lord
Canning Proclamations and all previous rights
become non-existent. No fresh grant in
respect of the property in suit having been
made after the proclamation, the plaintiff or
the Muslim Community have no right to sue.
(g) That the Commissioner of Waqf only has to
make an enquiry about number of Shia and
Sunni Waqfs in the District, the nature of each
Waqf, the Government revenue, the expenses
and whether it is one accepted under Section
2. The Commissioner of Waqf has only to see
whether any transaction is Waqf or not, and
that, to which sect the Waqf belongs and
further whether such Waqf is or is not
exempted by Section 2 of the Act. All these
things he has to do in accordance with the
definition of Waqf in Sec 3(1) of the Act XIII
of 1936, an Act which exclusively meant for
certain clauses of Muslim Waqfs. The finality
conclusiveness is intended to give effect
scheme of the administration under the
Muslim Waqf Act and does not and cannot
confer jurisdiction to decide the question of
title as against non Muslim. The legislature
under section 5(3) does not say that the court
shall take judicial notice of the reports of the
Commissioner of Waqfs and shall regard them
as conclusive evidence that the waqf
mentioned in such reports are Muslim waqfs
as Waqfs done in Section 10 of the Taluq
(h) There has been no legal publication of alleged
report and hence no question of any finality.
124
(i) That the purpose of publication is only to
show to which section the Waqf belongs. It
does not call upon objections or suit by
persons not interested in what is held to be
waqf or not vis by non Muslims.
Para 33. That the allegations made in the amended para 6A to 6e are all
together wrong. Neither the plaintiff of the suit was suing in a
representative capacity on behalf of the entire Hindu
Community nor could represent the Hindu Community when he
was perusing his personal interest to determine not the interest
of Hindu community at large. The defendants of that suit was
also not representing the Muslims or the Sunnis and the plaintiff
of this suit cannot be legally considered as claiming through that
defendant of that suit. The points now in issue were now
directing and substantially in issue in the former suit and here is
no resjudicata. There is no question of resjudicata as the dispute
of the defendant that the Hindus are worshipping the land in
dispute (the site of Janam Bhum) from time immemorial and
that they are entitled to continue worshipping and the other
matters were not in issue in that suit and the matters of the
present suit were foreign to that suit. Hence no question of
resjudicata either actually or constructive arises in this suit.
Para 34. That the building in suit does not possess the required mosque.
20.7.68 Sd./
Baba Abhiram Dass
Answering defendant.
125
40A1/1
Written Statement
(Under Order VIII, Rule 1, of the Code of Civil Procedure)
In
Other Original Suit No.4 of 1989
Sunni Central Board of Waqfs & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants
Written Statement of Dharam Das, Chela Baba Abhiram Das, resident
of Hanuman Garhi, Ayodhya, District Faizabad, impleaded as
Defendant No.13, by order dated the 3
rd
May 1989, of the Lucknow
Bench of the High Court in Miscellaneous Case No.29 of 1987, for
withdrawal of the suit along with connected suits, under section 24 of the
Code of Civil Procedure, for original trial by the High Court.
1. That the contents of paragraph 1 of the plaint are denied. It
is submitted that Babar was not a fanatic but a devout
Muslim who did not believe in destroying Hindu temples. It
was Mir Baqi, who was a Shia and commanded Babars
hordes, who demolished the ancient Hindu temple of the
time of Maharaja Vikramaditya at Sri Rama Janma Bhumi,
and tried to raise a mosque- like structure in its place with its
materials. Babar was not an Emperor. He was a marauder.
What was constructed was not a mosque nor was it
constructed for the use of the Muslims in general. It was not
known as Babri Masjid, but was described as Masjid
Janmasthan in British times. Objective evidence of the
demolition of the ancient temple and attempted construction
of the Mosque at Sri Rama Janma Bhumi existed in the
form of the 14 Kasauti Pillars, the Sandal wood beam, and
other structural features of the building, which are more fully
126
detailed in the additional pleas. Mir Baqi did so on account
of the superstitious influence of the so called Faqir named
Fazal Abbas Qalandar who had demanded the destruction of
the ancient temple at Sri Rama Janma Bhumi and the
construction of a mosque at that place for him to offer
prayers, although the doing so is opposed to tenets of Islam
as disclosed by the Qoran and the Fatwas issued by Muslim
theologians.
Amended as per order of court
dated 21.08.95
Sd./- 04.09.95
2. That the contents of paragraph 2 of the plaint are denied.
The sketch map annexed to the plaint is wholly wrong, vague
and out of all proportion and does not make any sense. There
is no grave-yard anywhere at Sri Rama Janma Bhumi, nor
was there any such grave-yard as alleged at any time within
12 years of the institution of the suit. There was nothing,
neither a mosque nor a graveyard, which vested or might
have vested in the Almighty of the Muslims, namely
ALLAH . According to the Islamic faith, as explained in
the Fatawa-e-Alamgiri : Volume VI, page 214: It is not
permissible to build mosque on unlawfully acquired land.
There may be many forms of unlawful acquisition. For
instance if some people forcibly take somebodys house (or
land) and build a mosque, or even Jama Masjid on it, then
Namaz in such a mosque will be against Shariat . The
allegation about the loss of many lives in the battle that is
said to have ensued between Babars hordes led by Mir Baqi
and the Ruler of Ayodhya must be related to the demolition
of the ancient Hindu temple at Sri Rama Janma Bhumi,
Ayodhya, by Mir Baqi; and in that context it is not denied:
but it is denied that any of the graves of the Muslims who
lost their lives in that battle more than 450 years ago were
situated on, or anywhere near Sri Rama Janma Bhumi. It is
127
submitted that a Mosque and a graveyard go ill together
according to the tenets of Islam, for the offering of prayers
except the funeral prayers on the death of a person buried
therein is prohibited in a graveyard. The khasra numbers of
the alleged Mosque and the alleged grave-yard are all
imaginary and fictitious, and are not identifiable at site.
Their correctness is denied.
3. That the contents of paragraph 3 of the plaint are denied.
There was no Mosque and there could be no question of
any grant for its upkeep or maintenance, or any such
purpose. There is no evidence of any expenditure from the
alleged grant on the upkeep or maintenance of the building
alleged to be the Babri Masjid.
4. That the contents of paragraph 4 of the plaint are denied.
The alleged grant, if any, in cash or by way of revenue free
land described as Nankar, must have been for personal
services rendered or promised to be rendered by the grantee
to the British in enslaving India by suppressing the First War
of Independence of 1857, miscalled the Sepoy Mutiny by
them.
5. That in paragraph 5 of the plaint the existence of the
Chabutra 17x21 within the premises of the building
miscalled a mosque, is admitted; but the construction
thereon was not a small wooden structure in the form of a
tent. It was the Temple of Bhagwan Sri Rama Lala.
Originally there was a Temple erected at that place after the
demolition of the ancient temple of Maharaja Vikramedityas
time. It is submitted that no Muslim Ruler could have
permitted the raising of a temple at the place where the
Chabutra was situated if the premises had been a mosque.
On the demolition of even that temple by Aurangzeb, the
worship of Bhagwan Sri Rama Lala was carried on at that
Chabutra, and there was a small Temple existing thereon, and
not merely a small wooden structure in the form of a tent.
128
The deity installed therein had been continuously
worshipped without any break or interruption. That place
called the Rama Chabutra.
Amended as per order
of Court dated 21.08.95
Sd./- 04.09.95
6. That in paragraph 6 of the plaint, the fact of the filing of the
suit by Mahant Raghubar Das against the Secretary of State
for India is not denied, but the rest of the contents of that
paragraph are denied. That suit was for permission to erect a
permanent temple in place of the then existing structure at
the Rama Chabutra. Mohammad Asghar was added later as a
defendant on his own request. It is denied that the alleged
mosque at Janmasthan was a mosque or that Moahammad
Asghar was its Mutwalli. The result of that suit is wholly
irrelevant in the present suit and does not bidn the answering
Defendant or the Hindus in general or the worshippers of
Bhagwan Sri Rama Lalla Virajman at Sri Rama Janma
Bhumi in particular.
6-A. That the contents of paragraph 6-A of the plaint are denied.
6-B. That the contents of paragraph 6-B of the plaint are denied.
6-C. That the contents of paragraph 6-C of the plaint are denied.
6-D. That the contents of paragraph 6-D of the palint are denied.
6-E. That the contents of paragraph 6-E of the plaint are denied.
6-F. That the contents of paragraph 6-F of the plaint are denied. It is
rather established by the judgments in that suit that Asthan Sri Rama
Janma Bhumi, called the Janmasthan, was a sacred place of Hindu
worship of Bhagwan Sri Ram, as the incarnation of Lord Vishnu,
symbolized by the existence of the objects of worship like the Sita-Rasoi ,
the Charans, and the idol of Bhagwan Sri Rama Lala Virajman on the
Chabutra, within the precincts of the building at Janmasthan, which was
alleged to be a Masjid; and that there was no access to it except through
that place of Hindu worship by which it was land-locked. Such a building
could not be a Masjid according to the tents of Islam.
129
7. That the contents of paragraph 7 of the plaint are denied.
8. That the contents of paragraph 8 of the plaint are not
admitted in the form in which they are stated. Correct facts
are stated in the Additional Pleas.
9. That in paragraph 9 of the plaint the fact of the enforcement
of the U.P. Muslim Waqfs Act in the year 1936 is not
disputed. The rest of the contents thereof are denied. The
alleged inquiry and report said to have been made by the
Commissioner of Waqfs was an ex-parte affair. It is a waste
paper, and is not binding on anyone, particularly the Hindus.
Correct facts are stated in the Additional Pleas.
10. That the contents of paragraph 10 of the plaint are
denied. correct fact are stated in the Additional Pleas.
11. That the contents of paragraph 11 of the plaint are
denied. The Muslims were never in possession of the alleged
mosque. They never could recite prayers therein, and never
recited any prayers therein till 23.12.1949, or any date even
remotely within 12 years of the institution of the suit.
Correct facts are stated in the Additional Pleas.
11-A. That the contents of paragraph 11(a) of the plaint are denied. It is
incorrect that the structure raised at Sri Rama janma Bhumi, during the time
of Babar after demolition of the Ancient Hindu Temple which existed there,
was built by Babar, or that he was an Emperor, or that it was or could be a
mosque. There was and there could be no question of any exclusive or
continuous possession by the Muslims over the site of the ancient Hindu
Temple or any part or portion of Sri Rama Janma Bhumi, which was by itself
an object of worship by the Hindus and as such a deity having the status of a
juridical person in the eye of law. The act of demolition of the ancient Hindu
Temple and entering upon Sri Rama Janma Bhumi was a wrongful act of
trespass, which did not, according to the tents of Islam, commend itself to
Allah, for He does not accept the waqf of any property or thing taken by
force or by an illegal act. A Waqf cannot according to Muslim Law be made
of a thing or property not belonging to the Waqf as owner.
The attempt to raise a mosque-like structure did not succeed; and no
130
mosque, deemed to be waqf according to Muslim Law, ever came into
existence. The act of Mir Baqi was a fleeting act to trespass and not an act of
entering into adverse possession by a person claiming ownership against the
true owner, and no Muslim could by any such act of trespass or its repetition,
confer any right, title or interest in the nature of a waqf in favour of ALLAH
for the purposes of a mosque. According to Muslim law, ALLAH alone is
the owner in possession of all waqf property. A mutwalli is a mere manager,
and neither the Mutwalli nor the beneficiaries of a Muslim waqf, can claim
or have any rights of ownership or possession as an owner for, or on behalf
of ALLAH. Title by way of a Muslim waqf, cannot, therefore, be acquired
by adverse possession, for Allah does not accept the waqf of property by a
wrongful act of adverse possession. The Deity of BHAGWAN SRI RAMA
VIRAJMAN in the ancient Temple at Sri Rama Janma Bhumi, and the
ASTHAN SRI RAMA JANMA BHUMI, which was by itself a Deity and
worshipped as such since ever and had a juristic personality of its own,
continued to own and possess the property rights of ownership and
possession of the space of Sri Rama Janma Bhumi at Ayodhya, without any
dent on them by any such acts of trespass as the demolition of the Temple or
the attempt to raise a mosquelike structure thereat. The act of installation
of the Deity of BHAGWAN SRI RAMA under the central dome of the
building at Sri Rama Janma Bhumi, in the form of the idol of Bhagwan SRI
RAMA LALA on Paush Shukla 3 of the Vikram Samvat 2006, by His
worshippers, led by, among others, the answering defendants Guru, Baba
Abhiram Das, was not a mischievous act, but a perfectly lawful exercise of
their right by the Hindus to worship the Deity. The Muslims did not get any
title by adverse possession, and the pre-existing right, title and interest of the
Deities continued to exist uninterrupted, by any such act of Mir Baqi as is
said to have been committed during Babars time over 400 years ago. The
act of the Hindus on Pausha Shukla 3, of Vikram Samvat 2006, was in
furtherance and re-assertion of the pre-existing property rights of the Deity
and their own right of worship. And BHAGWAN SRI RAMA did
MANIFEST HIMSELF that day at Sri Rama Janma Bhumi. Even the
Muslim Havaldar, who kept guard at the police Outpost, Abdul barkat by
name, experienced the Manifestation, by His Grace. The day is since them
131
celebrated as the Prakatya Dieas, every year, at Ayodhya. At any rate, it is
submitted, in the altenative, that the Muslims having lost whatever fleeting
possession they might have had by tespass over a part of the area of Sri
Rama Janma Bhumi, that was finally and effectively brought to an end, and
they have no right, title or interest whatsoever in the land or the mosque-like
structure at Sri Rama Janma Bhumi, Ayodhya.
12.That paragraph 12 is not disputed in so far as the recording of a report of
the incident of 23.12.1949 by the police is concerned, but the contents of
the report are not admitted to be correct. They are denied as motivated
and incorrect.
13.That in paragraph 13 of the plaint, the fact of the passing of the
preliminary order dated 29.12.1949, under Section 145 of the code of
Criminal Procedure, 1898, is admitted, but for a correct appraisal of the
terms of the order, the answering defendant relies on the order itself. Sri
Priya Dutt Ram was appointed Receiver to manage the worship of the
Deity of Bhagwan Sri Rama Lala Virajman under the central dome of the
building at Sri Rama Janma Bhumi, with the duties of a Shebait imposed
on him. Admittedly, the Muslims were prohibited from entering upon the
building premises and the surrounding area at Sri Ram Janma Bhumi.
They had no legal or Constitutional right of offering Namaz in the
building or doing anything else at the place. It was not a mosque at all.
Babu Priya Dutt Ram died some twenty years ago and the Receiver
appointed by the Civil Court in this very suit, with the duties of a Shebait
imposed on him for arranging and managing the worship of the Deity, in
the terms prescribed by the orders culminating in the order dated
23.7.1987, of the Hon'ble High Court in F.A.F.O. No.17 of 1977,Ram
Lakhan Saran V. The Sunni central Board of Waqfs and others: had taken
over and was in charge of the worship of the Deity.
Ameded as per courts
order dated 21.08.1995
Sd./-04.09.95
Until his discharge by the acquiretion of certain area of Ayodhya ordinance
No.8 of 1993, promulgated by the president on January 7, 1993, which was
later on replaced and he enacted as Act No.33 of 1993, learning the same
132
name by the Parliament.
14. That paragraph 14 of the plaint is denied. The action of the City
magistrate was not illegal. But if the plaintiffs regarded it to be illegal or
fraught with injustice, for having re-inforced their ouster from the
premises, which, according to them, had already been completed on
23.12.1949, they ought to have challenged it and sought appropriate relief
within the limitation of one year prescribed by Article 14 of the Schedule
to the Indian Limitation act, 1908, which was in force at that time. it has
to be added that the Constitution of India came into force on January 26,
1950, and therefore the action taken by the City Magistrate by passing the
preliminary order which he did on 29.12.1949, or the giving of the charge
of the management of the worship of the Deity of BHAGWAN SRI
RAMA LALA VIRAJMAN under the central dome of the building at Sri
Rama Janma Bhumi, to the Receiver, Babu Priya Dutt Ram, could not be
said to have deprived the Muslim citizens of India of any Constitutional
rights, for, before 26.1.1950 no one had any such rights in India.
15.That in paragraph 15 of the plaint the filing of the suit No.2 of1950 by Sri
Gopal Singh Vishard in his personal capacity is admitted, but the
averment that the statement therein that the building in suit was a temple
and that there were Deities installed therein, was a false allegation, is
itself false and incorrect, Indeed, the learned Civil Judge, In whose court
the suit had been filed on 16.1.1950, issued an interim injunction in the
terms prayed for, that very day; and, on the application of the District
Government counsel, the interim injunction was clarified by the Court on
19.1.1950, by saying that: The parties are hereby restrained by means of
temporary injunction to refrain from removing the Idol in question from
the site in dispute and from interfering with Puja etc., as at present carried
on. This temporary injunction was confirmed after hearing the parties,
by order dated 3.3.1951, by the learned civil Judge. On appeal by the
Muslims to the high court, the temporary injunction was upheld by a
Division Bench of the High Court by Judgment dated 26.4.1955. The
injunction has remained in operation down to the present day.
16. That the filing of the second suit No.25 of 1950 by Paramhans Ram
Chandra Das, now Mahant of Digambar Akhara, Ayodhya, for
133
identical reliefs as in suit No.2 of 1950, after serving notice under
section 80 of the Code of Civil procedure is admitted, in reply to
paragraph 16 of the plaint; but it is not correct to say that all the
defendants were the same as in suit No.2 of 1950. Although the first
five Muslim Defendants were the same in both the suits, and the
Defendants Nos.6 and 7 were also identical, namely, Uttar Pradesh
State and Deputy commissioner, Faizabad, respectively; Defendants
Nos.8 and 9 of suit No.2 of 1950, namely, the Additional City
Magistrate, Faizabad, and Superintendent of Police, Faizabad, were
not made parties to suit No.25 of 1950. The two suits were
consolidated, and for all practical purposes they became one suit. All
the five Muslim Defendants of the two suits are dead.
17. That in paragraph 17 of the plaint the fact of the filing of suit No.26 of
1959 (not 26 of 1960) is admitted but it has to be added that the Muslim
Defendants to that suit, namely, Haji Phekku, Mohd. Faiq, and Mohd.
Achhan Mian, who were defendants Nos.2,3 and 5 in suits Nos.2 and 25 of
1950, are dead, so that no one represents the Muslim community in that suit;
and the Receiver Babu Priya Dutt Ram is also dead.
18. That in paragraph 18 of the plaint, the fact of the issue of the
temporary injunction in suit No.2 of 1950 is admitted. It is also
admitted that the Muslims were prohibited from entering any place
within 200 yards of the area of Sri Rama Janma Bhumi. The rest of
the allegations are denied. It is denied that the building was a
mosque, or that it was declared to be a public waqf, or that it was
used by generations of Muslims as a mosque for reciting prayers
therein since its construction about 460 years ago. It may be pointed
out that the suit was filed in 1961 and the building is said to have been
erected by Mir Baqi in 1528. It could not, therefore, be said to have
been constructed 460 years ago when the suit was filed, the period
elapsed having been only 438 years between 1528 and 1961. It is
further submitted that the issue of the temporary injunction was upheld
even on appeal to the High Court by the Muslim Defendants to the
suit. It cannot be said to be fraught with injustice, and a separate suit
did not and does not lie to have that injunction set aside, whether by
134
the Muslim public or otherwise, against the Hindu public or otherwise,
whether under Order I, Rule 8, of the Code of Civil Procedure or under
any other provision of law.
5. That paragraph 19 of the plaint is denied. The plaintiffs cannot and do
not represent the entire Muslim community, nor do the defendants
originally impleaded or added later, in fact represent, or can represent
the entire Hindu community. The permission to sue in a representative
capacity was obtained by the plaintiffs on the basis of
misrepresentations and suppressions. Such permission is always open
to be examined at the final hearing.
6. That paragraph 20 of the plaint is denied. The Receiver was by the
express terms of the Order, required not to remove the Deity of
BHAGWAN SRI RAMA LALA VIRAJMAN under the central dome
of the building, but was, on the other hand required to continue the
sewa and puja of the deity, and to receive on his behalf the offerings
made by the devotees and the pilgrims. The Receivers position was
that of a curator or manager appointed to look after the affairs of a
person who cannot personally do so. The position of the Idols was not
and could not be disturbed. But consistently with that position the
managerial duty and obligation was entrusted to the Receiver.
Amended as per
court order dated
21.08.1995
Sd./- 04.09.95
The possession of the Receiver was the possession of the Deity as
through a Shebait appointed for him by the court. A suit for
possession over a mosque can only be filed by the Mutwalli thereof.
Others who are not Mutwallis of a mosque can only sue for a
declaration that the place is a mosque. The plaint does not idicate
that there is, or ever was a Mutwalli of the alleged mosque, which
can only mean that the building was not a 'mosque' and there was no
waqf in respect of it. Indeed, the plaintiffs suit was still-bora. It is
barred by limitation and all the laws applicable to a suit of its nature;
and it can never succeed. The plaint deserves to be rejected under
135
order VII, Rule 11, of the Code of Civil Procedure, 1908.
7. That paragraph 21 of the plaint is denied.
8. That paragraph 22 of the plaint is denied.
9. That paragraph 23 of the plaint is denied. The cause of action pleaded
therein is fictitious. It could in no case be said to be renewed de-die-
in-diem, inasmuch as the imaginary injury complained of does not
constitute a continuing injury or a continuing wrong in the eye of law.
The suit is hopelessly time-barred by the limitation of 6 years
prescribed by article 120 of the Schedule to the Indian Limitation Act,
1908, which squarely applies to the allegations and the cause of action
pleaded in the plaint, throuh the answering defendant submits that
there was in fact no cause of action for the suit, and the suit is only a
malicious exercise in futility which is fit to be dismissed as such.
Amended as per courts
order dated 21.08.1995
Sd./-04.09.95
10. That the plaintiffs are not entitled to the relief claimed, or any of them.
The suit is liable to be dismissed with costs. In fact, it is false,
malicious and vexatious and the defendants are entitled to be awarded
the maximum amount of special costs by way of compensation against
the plaintiffs.
ADDITIONAL PLEAS
11. That the building in suit was no mosque and its surrounding was not
a grave-yard. It is a fact of history that there was an Ancient Temple
of Maharaja Vikramdityas time at Sri Rama Janma Bhumi, and that
was demolished by Mir Baqi. The dominant motive of Iconoclasts
was the prejudice born of ignorance that Hindu temples were places of
Idolatry, which was condemned by the Qoran. But as stated more
fully, herein below, those who are acquisinted with the true knowledge
of Qoran also know that a mosque cannot be built in the place of a
Hindu temple after forcibly demolishing it, for ALLAH DOES NOT
accept Namaz offered at a place taken by force, or in a mosque built
on land obtained by Gasba or forcibly woithout title. it seems,
136
therefore, that the three domed structure raised at Sri Rama Janma
Bhumi after demolishing the Ancient Hindu Temple, was not intended
to be used as a mosque, and it was never used as mosque. It was an
act of putting down Idolatry. The alleged killing of Muslims in the
battle that ensued with the Hindus, and who are alleged to have been
buried at the place, only shows unmistakably that the demolition of the
Temple led to a fierce struggle by the Hindus. The alleged existence
of a graveyard all round it, also shows that the Muslims could not have
gone to offer Namaz in the building, which was abandoned and never
used as a mosque by the Muslims.
12. That it is manifestly established by public records and relevant books
of authority that the premises in dispute is the place where,
BHAGWAN SRI RAMA manifested Himself in human form as an
incarnation of BHAGWAN VISHNU, according to the tradition and
faith of the Hindus. Again according to the Hindu faith, GANGA
originates from the nail of the tee of BHAGWANVISHNU, and
cleanses and purifies whatever is washed by or dipped into its waters.
And BHAGWAN VISHNU having Manifested himself in the human
form of Maryada Puroshottam Sri Ramchandra Ji Maharaj at Sri Rama
Janma Bhumi, those who tough the Earth or the footprints or
BHAWAN SRIRAMA symbolised by the CHARANS at that place, are
cleansed of their sins and purified. The Earth at Sri Rama Janma
Bhumi could not have acted differently towards the Muslims who went
there. They were also cleansed and purified of the evil in them by the
touch of BHAGWAN SRI RAMAS footprints, which like the waters
of the GANGA purify all without any discrimination. The place, like
the waters of the GANGA, remains unsullied, and has been an object
of worship, with a juridical personality of its own as a Deity, distinct
from the juridical personality of the presiding Deity of BHAGWAN
SRI RAMA installed in the Temple thereat, and has existed since ever
even before the construction of the first temple thereat and installation
of the Idol therein. Indeed, it is the VIDINE SPIRIT which is
worshipped. An Idol is not in dispensable. There are Hindu Temples
without any Idol. The Asthan Sri RAMA JANMA BHUMI has existed
137
immovable through the ages, and has ever been a juridical person. The
actual and continuous performance of Puja at Sri Rama Janma Bhumi
was not essential for the continued existence or presence of the Deities
at that place. They have continued to remain present , and shall
continue to remain present so long as the place lasts, which, being
land, is indestructible, for any one to come and invoke them by prayer.
the Deities are Immortal, being the Divine Sprit or the ATMAN, AND
MAY TAKE DIFFERENT SHAPES AND FORMS AS Idols or other
symbols of worship according to the faith and aspiration of their
devotees.
13. That it is indisputable that there was an ancient Temple of Maharaja
Vikramadityas time at Sri Rama Janma Bhumi, Ayodhya, and that it
was partly demolished and an attempt was made, by Mir Baqi,
Commander of Babars hordes, to construct a mosque in its place.
He was a Shia, and although demolition of a temple for constructing a
'Mosque'is prohibited by Islam, he attempted to do so under the
superstitious influence of the so called Faqir, named, Fazal Abbas
Qalander. He did not , however, succeed, for, as the story goes,
whatever was constructed during the day feel down during the night,
and it was only after making certain material concessions in favour of
the Hindus for the continued preservation of the place as a place of
Hindu worship, that the construction of the three- domed structure was
somehow completed, and the construction of the minarets and certain
other essential features of a public mosque was not undertaken.
Amended as per courts order
dated 21.08.1995
Sd./-04.09.1995
14. That the following facts would show that the three domed structure so
raised by Mir Baqi was not a mosque at all, namely-
(A) ALLAH does not accept a dedication of property for purposes
recognized as pious and charitable, that is, as waqf under the Muslim
Law, from a person who is not its rightful owner; for instance, ALLAH
would not accept the dedication of stolen property from a thief. By his
act of trespass supported by violence, for erecting a mosque on the
138
site of the ancient Hindu Temple at ASTHAN SRI RAMA JANMA
BHUMI, after demolishing it by the force of arms, Mir Baqi violated
all the true tenets of Islam. it was a highly un-Islamic action. ALLAH
never forgave him for that, so much so that every time an attempt was
made to convert the place into a mosque, by misguided inconoclasts
like him, they were killed without mercy in the battles that ensued, for
violating HIS injunctions, for ALLAH had spoken thus to the Prophet
IN the Qoran---
And fight for the religion of GOD against those who fight
against you; but transgress not by attacking them first, for GOD loveth
not the transgressers. And kill them wherever ye find them; and turn
them out of that whereof they have dispossessed you; for temptation to
idolaotry is more grievous than slaughter; yet fight not against them in
the holy temple, unless they attack you therein.
Indeed, the whole history of the rise and fall of the Mughal Empire in
India will stand testimony to it. Babar, who did not believe in iconoclasm
founded the rule of Mughals in India. Akbar his grandson, by his tolerance
and secularism expanded it on all sides and converted the Mughal Rule into
an Empire. Aurangzeb, the iconoclast fanatic, destroyed the Empire which
was at the pinnacle of its glory when he deposed and imprisoned his own
father Shahjahan and grabbed the crown.
(B) Inspite of all that Mir Baqi tried to do with the Temple, the space
always continued to vest in possession with the Deities of BHAGWAN
SRI RAMA VIRAJMAN and the ASTHAN SRI RAMA JANMA
BHUMI. THEIR worshippers continued to worship THEM through
such symbols as the CHARAN and the SITA RASOI, and the Idol of
BHAGWAN SRI RAMA LALA VIRAJMAN on the Chabutra, called
the Rama Chabutra. No one could enter the three domed structure
except after passing through these places of Hindu worship.
According to the tenets of Islam there can be no Idol worship within
the precincts of a mosque, and the passage to a mosque must be
free and unobstructed and open to the Faithful at all times. It can
never be land-locked by a Hindu place of worship; and there can be no
co-sharing in title or possession with ALLAH, particularly in the case
139
of a mosque. His possession must be exclusive.
(C) A mosque, which is a public place of worship for all the Muslims,
must have a minaret for calling the AZAN according to Baillie-----.
When an assembly of worshippers pray in a masjid with
permission, that is delivery. But it is a condition that the prayers
be with izan, or the regular call, and be public not private, for
though there should be an assembly yet if it is without izan, and
the prayers are private instead of public, the place is no masjid,
according to the two disciples. (Pt. 1, Bk. IX, ch. VII, Sec. I, p.
605)
Indeed, according to P.R. Ganapathi Iyers Law relating to Hindu and
Mahomedan Endowments, (2
nd
Edition, 1918, Chap. XVII, at p.388.)
there has been no mosque without a minaret after the first half
century from the Flight.
(D) There was no arrangement for storage of water for vazoo, and there
were the Kasauti pillars with the figures of Hindu Gods inscribed on
them and the Sandalwood beam. Such a place could never be a
mosque.
(E) There is a mention in the Fyzabad Gazetteor of the burial of 75
Muslims at the gate of the Janmasthan and the place being known as
Ganj Shahidan, after the battle of 1855 between the Hindus and the
Muslims in which the Hindus succeded in resuming control over the
premises, including the three domed structure. There have been no
graves anywhere near the building or its precincts or the area
appurtenant thereto, or surrounding it, for the last more than 50 years
at least, but if the building was surrounded by a grave-yard soon after
the annexation of Avadh by the British, the building could not be a
Mosque and could not be used as a mosque, for the offering of
payers or Namaz, except the funeral prayers on the death of a person
buried therein that is, the Namaz-e-Janaza, is prohibited in a grave-
yard according to the Muslim authorities.
Amended as per
order of court dated
21.08.95
Sd./- 04.09.95
140
15. That thus, the worship of the Deities of BHAGWAN SRI RAMA
VIRAJMAN and the ASTHAN SRI RAMA JANMA BHUMI has
continued through the ages at Sri Rama Janma Bhumi, Ayodhya. The
space belongs to the Deities. No validwaqf was, or could ever be
created of Sri Rama Janma Bhumi or any part of it, in view of the title
and possession of the said Deities thereon, which has been all
pervasive and continuous. ALLAH never claimed, or took, or got any
title or possession over the said premises or any part of them. Nor has
there ever been any person living or juridical, who might have put
forward any claim to ownership or possession as owner of the said
premises or any part of them. Occasional acts of trespass by
iconoclasts were successfully resisted and repulsed by the Hindus from
time to time; and there was no blemish or dent in the continuity of the
title and possession of the said Deities over Sri Rama Janma Bhumi.
No title could or did vest in ALLAH over any part of Sri Rama Janma
Bhumi, by any possession adverse to the Deities or in any other
manner. Neither ALLAH nor any person on his behalf had any
possession over any part of the premises at any time whatsoever, not to
speak of any possession adverse to the ownership of the Deities.
16. That at any rate the Muslims could never acquire any right to worship
at the place as in a mosque, by adverse possession. First, because the
consequence of the violation of any injunction of the Qoran could not,
according to Muslim Law, be worked out by lapse of time howsoever
long. Secondly, in respect of a claim to pray, every single Muslim has
the right to pray in a mosque in his own independent and individual
character. He does not derive that right from another such right of all
the Muslims is similar but independent of each other. Even a newly
converted Muslim gets that right on conversion, although none of his
ancestors or members of his family had any such right. Therefore, it is
impossible to say in law that those who have a right to pray in a
mosque are in possession of that right in the mosque as a
community. The fluctuating body of individual Muslims have this
right as individuals to go into the mosque and pray therein, but only
so long as the mosque continues to exists as a mosque. This right
141
to pray cannot be tacked on by a Muslim to the similar right of another
Muslim, and cannot form the basis of any adverse possession in law, or
acquisition of title to land by prescription as a waqf for a mosque.
The body of worshippers is only an undulating, ever changing body of
individuals and not a corporation. Thirdly, the claim of a right to
worship by going to a place as a mosque is not a claim of a right to
possession of the place as its owner and the factum of occupation of a
place without any claim to title as owner, cannot clothe the occupier
with ownership of the place, and the true owners title remains
unaffected by any such occupation, howsoever long it may be. A place
can become a waqf for a mosque only when Namaz is offered there
with the permission of the owner and publicly in a group after the
calling of azan.
17. That after the annexation of Avadh and the first war of independence,
miscalled the Sepoy Munity by the British, an inner enclosure for the
three-domed structure was created by raising a boundary wall with
iron gratings in the courtyard of the building, which separated the
Rama Chabutra and the Charans and the Sita Rasoi, from the building
and divided the courtyard into two parts. The inner part in which the
three domed structure was situated, was land-locked from all sides by
the outer part in which the Rama Chabutra, the Charan and the Sita
Rasoi were situate. The British thus tried to confine the Hindus to
worship their Deities in the outer part of the courtyard, but no Muslim
could enter the inner part of the courtyard or the three domed structure
within it, except by passing through the outer courtyard, which had
Hindu places of worship in it and was in their exclusive and constant
occupation. This laid the seeds of trouble off and on whenever any
Muslims wanted to go inside. The result was that no Namaz was
offered inside the three domed structue, inspite of the attempt of the
British Government to induce the Muslims to do so by raising the
inner boundary wall. This was calculated attempt by the Britishers to
encourage the Muslims to use the abandoned place as a mosque and
create differences between their Hindu and Muslim subjects, with the
object of maintaining their power, particularly in the context of the
142
First War of Independence in which the Hindus and the Muslims had
fought the British power shoulder to shoulder like brothers. However,
the attempt to induce the Muslims, to use the building inside the inner
enclosure as a mosque did not succeed. There was an over-helming
number of Hindus living all round the place, and the local Muslim
population knew that the place was not a proper place for offering
Namaz, as it was not a mosque according to the true tenets of Islam.
The Hindus never left the place and continued to worship the
ASTHAN through such symbols of the DIVINE SPIRIT as the
CHARANS, the SITA-RASOI and the Idol of BHAGWAN SRI
RAMA LALA VIRAJMAN on the Rama Chabutra within its
precincts.
18. That with reference to the fact of demolition of substantial parts of the
three domed structure at Sri Rama Janma Bhumi in the communal riots
of 1934 at Ayodhya, which were sparked off by the slaughter of a cow
by some fanatic, or a hired hoodluy and the fact of its reconstruction
and renovation by the British Government, at its own cost through a
Muslim Thekadar, stated in paragraph 8 of the plaint, it is submitted
that the said act of the British Government must have been very much
a part of their policy to divide the Hindus and the Muslims in order to
rule India. If there really was a mosque in existence with the grant of
revenue free land of two villages attached, for its maintenance and
upkeep, as alleged in the plaint, there ought to have been a Mutwalli to
manage the waqf and to look after the mosque, and there could, and
would have been no question of rebuilding and reconditioning the
mosque by the benign British Government at its cost, through a
Muslim Thekadar, for the benefit of the loyal Muslim subjects of His
Majesty the King Emperor of India, in order to teach Hindus a lesson,
as they were raising their head against the British rule. The British
were thus sowing the seeds of the two nation theory which ultimately
led to the Partition of India. Nevertheless inspite of the British efforts,
no prayers were ever offered in the three domed structure at Sri Rama
Janma Bhumi even after the reconstruction and renovation, for the
Muslims knew that the place was no mosque inasmuch as ALLAH
143
does not accept Namaz offered at a place occupied without the
permission of its owner, or on land occupied by Gasba, that is, without
title.
19. That in 1936 the U.P. Muslim Waqfs Act, was passed. It established
two Central Boards of Waqfs in U.P., namely the Sunnil Central Board
of Waqfs and the Shia Central Board of Waqfs, to supervise and
control the Muslim Waqfs of the two sects respectively. All the
existing Waqfs were required to be surveyed and classified into Sunni
and Shia waqfs by a Commissioner of waqfs, who was required to
submit his report to the local Government, and the Government in its
turn was required to send that report to the Central Board concerned,
according to the sect to which the waqf belonged, whereafter the
Central Board concerned was required to notify in the Gazette the
waqfs of its respective sect. There was no such notification in respect
of the waqf of the mosque in dispute. Allegation to the contrary is
wrong. The Plaintiff waqf Board, has had no jurisdiction in respect of
the premises even if it were a mosque. Further, it took no action or
postive steps for the custody or the care of the building or its
establishment as a mosque. No one acted as its Mutwalli, or
Mauzin, or Imam, or Khatib, or Khadim. The descendant of Mir Baqi
who was sought to be planted as the Mutwalli by the British was an
opium addict. He denied that the grant of revenue free land was waqf
for the purposes of the mosque, and instated claimed that it was his
Nankar for services rendered to the British, and did not look after or
manage the mosque at all.
20. That on the independence of India from the British yoke, coupled with
the Partition and the carving out of the new State of Pakistan, on the
footing that the Hindus and the Muslims constitute two separate
nations, and the mass killing and expulsion of Hindus from Pakistan,
Baba Abhiram Das, the answering Defendants Guru, who was the
Propoganda Secretary of the Hindu Mahasabha at that time, resolved,
along with Peramhans Ramchandra Das, Defendant No.2, who was the
Secretary of the local unit of the Hindu Mahasabha at that time, and
Gopal Singh Visharad, Defendant No.1, and several other, to restore
144
the sacred ASTHAN of Sri Rama Janma Bhumi to its pristine glory, in
particular by removing the three domed structure raised thereat by Mir
Baqi, which was an object of National shame for the Hindus. Pursuant
to this resolution, action was initiated by taking a collective vow
publicly for the restoration of Sri Rama Janma Bhumi, at a public
meeting held on 2.10.1949, the Gandhi Jayanti day, which was also the
Bijaya Dashmi day that year, as the first step towards the fulfillment of
the dream of the Mahatma of establishing Rama-Rajya in
Bharatvarasha after independence from the British bohdage. After the
taking of the collective vow their first step was to clear up the
scattered mounds of earth which the Muslims claimed were their
graves, in the areas around Sri Rama Janma Bhumi. This was
followed up by Navahna Pathas, Japa and Sankirtan at Sri Ram Janma
Bhumi. The first batch of 108 Navahna Pathas commenced on
16.10.1949. This was followed by 1108 batches of Nayahna Pathas.
Japa and Sankirtan were also performed continuously. They
continued in and outside the three-domed building, and within its
precincts and on adjacent land all round, unabated, rather in rising
crescendo, until the great event of the Manifesation of BHAGWAN
SRI RAMA within the three domed building, under its central dome to
be more precise, by the installation of the Idol of BHAGWAN SRI
RAMA LALA with all due ceremony at the auspicious hour
Brahmamuhurta, during Shrgvan Nakshatra and Tula Lagna in the
most auspicious constellation of the planes, named Harshan Yoga, on
Thursday, Pausha Shukla 3, of Vikrama Samvat 2006. It may be
added that although the Planet Sun was Dakshinayana Sanyasis and
Variragis are permitted by the Sastras to instal a Deity even during
Dakshinayana. The Idol of BHAGWAN SRI RAMA LALA IS Chala
and seated on a Silver Singhasan. Akhan-da Sankirtans and Japa have
continued ever since without any break for the last about 40 years at
Sri Rama Janma Bhumi.
21. That the suit is bad and not maintainable in law inasmuch as the Deity
of BHAGWAN SRI RAMA LALA VIRAJMAN under the central
dome of the building, and on the Rama Chabutra, and the Deity of
145
ASTHAN SRI RAMA JANMA BHUMI with such symbols of
worship as the Charan and the Sita Rasoi, have not been made parties
to the suit. It is also bad for want of Mutwalli of the alleged waqf.
22. That the Sunni Central Board of Waqfs, U.P. has no jurisdiction or
competence to meddle with the alleged waqf; or the alleged
mosque, or to sue in respect thereof for want of a proper and valid
notification in its favour, in respect thereof, under Section 5 of the U.P.
Muslim Waqfs Act, 1936, the notification published in the Official
Gazette dated 26.2.1944, having already been held to be invalid by the
Courts finding dated 21.4.1966 on issue No.17, in this suit, which has
become finial and irreversible between the parties. Further, the suit
when filed in 1961, was barred by the provisions of the U.P. Muslim
Waqfs Act, 1960; only the Tribunal constituted under that Act had the
jurisdiction to entertain a suit of this nature, if filed within the
limitation prescribed by it, and the Civil court had no jurisdiction to
entertain it.
23. That the suit as framed under Order 1 Rule 8 is incompetent and not
maintainable. The permission granted by the court to the Plaintiffs to
sue in a representative capacity for all the Muslims, is liable to be
revoked, particularly because the Plaintiffs are all Sunnis, while the
Shias did claim the alleged mosque and alleged waqf in respect of it
to be a Shia waqf. The Defendants named in the suit cannot also
represent all the various sects of Hindus in India.
24. That none of the plaintiffs have any right to sue for possession over the
alleged mosque.
25. That the relief for possession by the removal of the idols and other
articles of Hindu worship, is in fact and in law a relief for mandatory
injunction, and is barred bt the 6 years limitation prescribed by Article
120 of the Schedule to the Indian Limitation Act, 1908. Otherwise too
a person other than the Mutwalli of a Mosque cannot sue for its
possession, and can only sue for a declaration that it is a mosque and,
if out of possession or dispossessed, that its possession be made over
to the Mutwalli, and to such a suit also Article 120 applied, and neither
of the Articles 142 or 144 of the Schedule to the Indian Limitation Act,
146
1908 had any application. Further, on the pleas raised in the plaint, the
Plaintiffs having claimed to have been effectively and completely
dispossessed by the Preliminary order of attachment and appointment
of a Receiver to maintain the worship of the Deity inside the three
domed building, passed on 29.12.1949 under Section 145 of the code
of Criminal Procedure, 1898, the suit is barred by Article 14 of the
Schedule to the Indian Limitation Act, 1908. In as much as the
plaintiffs have claimed that they were completely and effectively
ousted from the building and the premises in suit by the Defendants
act of placing of Idols within the mosque, on December 23, 1949,
their cause of action was finally complete and closed that day, and did
not recur thereafter, according to their own allegations. It could not be
said to arise thereafter de-die-in-diem, as it was not the case of a
continuing wrong, within the meaning of Section 23 of the Indian
Limitation Act, 1908. In any view of the matter the suit is hopelessly
barred by limitation, even on the allegations of the Plaint which is
liable to be rejected under Order 7, Rule 11 of the code of Civil
Procedure, 1908, and Section 3 of the Indian Limitation Act, 1908,
casts a duty on the Court to dismiss the suit and not to proceed with its
trial any further.
26. That it is essential in the interest of justice and the maintenance of
peace and amity between the Hindus and the Muslims in India, and
now, even for maintaining good international relations between India
and Pakistan and some of the Muslim countries, that this dispute is
speedily resolved by the court. So far as the answering Defendant is
concerned he, along with the Vaishnavite Hindus of the Ramanandi
Sampradaya whom he claims to represent, and to whom the Temple at
Sri Rama Janma Bhumi belong as the persons entitled to look after the
management of the worship and also as the true worshippers of the
Deities who SIT there, would only be too willing to arrive at a
negotiated settlement with the Muslim community, under the
supervision or mediation of the court, for the honourable
udinguishment of their claim to the demolished three doomed structure
at Sri Rama Janma Bhumi, Ayodhya, and its re-erection at village
147
Sahanwa near the place where Mir Baqis mazar stands. It may be
stated that while there are many instances of removal of mosques in
Muslim countries, the place where Maryada Purshottam Bhagwan Sri
Rama Chandra Ji Maharaj manifested himself in human form as an
incarnation of Bhagwan Vishnu, according to the faith of the Hindus,
cannot be changed. There are no Muslims residing anywhere near the
place, who may require a mosque there, for offering prayers, and the
number of existing mosques at Ayodhya is so large, as compared to
the need for them, that some of them have even fallen into disrepair
and ruins for want of maintenance. The answering Defendant has said
this in the true tradition of the Ramananda Sampradaya Kabir, a
Muslim by birth, was one of the most famous disciples of the Adiguru
Ramanandachayra. Given the necessary goodwill and dedication to
the national interest on both the sides, such a negotiated settlement is
not impossible and the answering Defendant would hope and pray for
it. indeed Prince Anjum Quqder, the President of All India Shia
Conference, and a descendant of NawabWajid Ali Shah who ruled
Avadh when it was annexed by the British, has come forward with the
statement in reply to the suit filed on behalf of the Deities (Suit
No.236 of 1989 of the Court of Civil Judge Faizabad, now registered
as Other original Suit No.5 of 1989, in the High Court) that he and
the Muslims of India have the highest regard for Lord Rama. He has
quoted from Iqbal the couplet: Amended as
per order of court
dated 21.08.1995 Sd./-
Hae Ram ke wajood pa Hindostan ko naaz Ahle Nazar
Samajhte hain uski Imame Hind.
ultimately he has said:
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.
148
And in support he has quoted, among others, the authority of the
celebrated Muslim historian and scholar Maulana Syed Sabahuddin Abdur
Rahman (since expired) in his well known treatise BABRI MASJID, at
page 5, at the very begining of its preface-
On behalf of Muslims I also have a right to say that if it is proved that
babri Masjid has been built after demolishing Ram Janam Bhoomi Mandir on
its place, then such a mosque if built on such an usurped land deserves to be
destroyed. No theologian or Alim can give Fatwa to hold Namaz in it.
Prince Anjum Quder had also obtained a Fatwa from Ulema Maulana Saiyid
Mohammad Naqi, who is now a resident of karachi and a Pakistani National
since the partition, but is reputed to be the principal authority governing the
Shias in such matters in the Sub-continent of India, Pakistan and Bangla
Desh, that if the removal of the Babri Masid is necessary in the present
circumstances, for preserving the peace and resolving the dispute, then that
may be done.
41. That in the Navajivan dated 27.7.1937, Mahatma Gandhi had
expressed his views thus on the controversy relating to Sri Rama Janma
Bhumi----
It is a great sin to occupy by force any religious place of worship.
During the Mughal times, due to religious fanaticism, Mughal rulers had
occupied many such Hindu religious places which were sacred places of
worship for the Hindus. Many of them were looted and destroyed, and many
of them given the shape of a mosque. Although a temple and a mosque are
both sacred places for worshipping God, and there is no deference between
them, but the traditions and forms of worship of the Hindus and the Muslims
are different from each other.
From the religious point of view a Muslim can never tolerate the
placing of an Idol by a Hindu in his mosque where he has been worshipping
KHUDA. In the same way a Hindu will never suffer demolition of any of his
temples where he has been regularly worshiping Rama, Krishna, Shankars,
Vishnu and Devi, and the construction of a mosque in its place. All such
disgraceful acts were symptoms of religious bondage. Hindus and Muslims
should both try and resolve all such disputes by mutual settlement. The
Hindus should generously return such Muslim places of worship as may be
149
under their control. Similarly the Muslims should willingly return those
places of Hindu worship which are in their possessions. This will resolve the
differences between the two, and further Hindu Muslim unity which will
prove to be a boon for the pious people of India.
42.That under the circumstances, the re evection of the demolished three
domed structure, minus its kasauti columns and the sandalwood beam,
somewhere near the Mazar of Mir Baqi at village Sahanwa, or any other
place where the Muslims have a sizeable population and agree to its re-
evection, on land to be provided by them, is the most sensible solution of
the dispute for preserving the integrity of the Nation, and peace and amity
on the sub-continent of India, Pakistan and Bangla Desh. The answering
Defendant hopes and prays that the Hon'ble Court would bring that about
by using its good offices, and remove once for all this festering sore from
the body politic of India that is Bharat.
43.That as a result of the ruling of the Supreme Court, dated October 24,
1994, on the issue whether the suit has abated or survives given in the
centeral of the questioned validity of the Acquisition of certain area at
Ayodjya Act, 1993, to the effect that the acquisition of the entire area
specified in that act except for the site of the demolished structure,
described therein as RAM JANAM BHUMI BABRI MASJID (including
the premises of its inner and outer courtyards), situate in a part of plots
nos.159 and 160 of village of Kot Ram Chandra Ayodjya, (of the last
revenue settlement of the year (93A AD), was absolute and
constitutionally valid, and that the rights title and interest therein stand
transferred to, and west in the Central Government under Section 3 with
the consequences detailed in Section 4(1) and (2) of that Act, the claim of
a Muslim graveyard on that laid does not servive, and is fit to be
dismissed without any further enquiry thereinto.
44.That the entire cause of action pleaded, and relief claimed in the suit,
other than that in respect of the grave yard, relates to the demolished three
domed structure which does not exist any longer, therefore, no part of the
suit survives now, after the disappearance of the said structure.
45.That the Sunni Central Board of Waqfs, has not been constituted for many
years past in accordance with the requirements of the U.P. Muslims Waqf
150
Act 1960, and its present controller who is alleged to have been appointed
illegally, by Janab Mohd. Azam Khan, the present Minster of Waqfs in the
present government of Uttar Pradesh (who is also the convener of the
Babri Masjid Act committee) has been restrained from performing certain
functions of the Board until the issue of notification constituting the
Board after the necessary election under the Act, by a division bench of
the Hon'ble High Court sitting at Allahabad in writ petition no.37378 of
1994 filed by Janab. S.Farman Ahmad. The suit therefore, proceed due to
the non-existence of the principal plaintiff, namely, the Sunni Central
Board of Waqf, U.P.
46.That a statuary body like the Sunni Central Board of Waqf U.P., cannot
represent all the Muslims generally, nor the Shia Central Board of Waqf
U.P. and the Shia in particular, the other Muslims individuals who were
joined as plaintiffs are also all of them Sunni Muslims and cannot
therefore, represent the Shia Muslims withwhom there was a clear
conflict of interest in the suit in view of the suit filed by the Shia Central
Board of Waqfs U.P., against the Sunni Central Board of Waqfs U.P.
claiming the alleged mosque to be a Shia Waqf, and the admitted fact that
the alleged Mutwalli of the alleged waqf was a Shia and did not submit to
the jurisdiction of the Sunni Waqf Board and even claimed that there was
no waqf at all in his application to that Board. In view of the fact that the
Mutwalli of the alleged Waqf had to be Shia Muslim the suit could not
proceed without him and was had for his non-joinder, in as such as the
alleged Waqf of property held by him for the maintenance of alleged
mosque was a Shia Waqf and the Sunni Central Board of Waq could not
appoint any Mutwalli in his place, or committee of Management for the
alleged waqf of the alleged mosque, nor exercise any central in respect
thereof. None of plaintiffs could, therefore, maintain the suit and in any
case the ttreatment of the suit as a representative suit on behalf of
Muslims was wholly illegal. This is in addition to the plea already taken
that the Hindu defendants did not and cannot represent the Hindus
generally the permission to sue in a representative capacity was illegal
and non-est in law.
151
Amended as per courts order dated
21.08.1995
Sd./- Dharam Das defendant No.13.
Sd.-
Counsel for the defendant No.13
Dated Lucknow
4
th
December 1989

152
ADDITIONAL WRITTEN STATEMENT ON BEHALF OF DEFENDANT
NO: 13
IN
ORIGINAL SUIT NO: 4 OF 1989
Sunni Central Board of Waqf U.P. & Ors. Plaintiffs
Versus
Gopal Singh Visarad & Ors. .Defendants
ADDITIONAL WRITTEN STATEMENT ON BEHALF OF MAHANT
DHARAMDASS (DEFENDANT NO.13) MOST RESPECTFULLY
SHOWETH:-
21-A. That the contents of the paragraph nos:21-A added in the plaint are
incorrect and denied. The building structure of ShrI Ram Janam Bhumi
which was demolished on 6.12.1992 was not a mosque and could not be
called BABRI MASJID. The demolition of the structure (wrongly called
Babri Masjid) was not in violation of the order of the Hon'ble Supreme Court
dated 15.11.1991, nor in violation of any orders of this Hon'ble Court dated
3.2.1986 or 7.11.1989, nor in violation of any other order of any court. The
Deities were never removed from the place where they sat. The structure
evected on 7.12.1992 was not an illegal structure, nor were any of these acts
in violation of any order of any court or the above orders, or any undertaking.
The people who demolished the structure (wrongly called the Mosque)
were not miscreants or criminals. The demolition and destruction was not
with the connivance of the then State Government of B.J.P. There could be
no question of any restoration of any structure as it then existed on 5.12.92.
As already stated, the demolition of the building structure at Sri Ram Janam
Bhumi was not in defiance, nor in violation of any orders of this Court or the
Supreme Court.
21-B. That the contents of paragraph no.21-B added in the plaint are
incorrect and denied. The land in suit had a structure wrongfully erected
153
thereon by GASB after wrongfully demolishing the Hindu Temple
standing at Sri Ram Janam Bhumi by force of arms. it could not, be and
never became a mosque under the law of the land, nor even according to the
Shariat. There could thus be no question of the site of the demolished
structure, being a mosque of the Muslims or there being any right to offer
prayers therein or thereat.
21-C. That the contents of paragraph no.21-C as stated are denied. The
structure at Sri Ram Janam Bhumi was not a mosque and could not be
described as Babri Masjid. The interpretation of the judgment of the
Hon'ble Supreme Court dated 24.10.94 is incorrect. Correct facts are stated
in the additional pleas.
Relief Clause (bb): The clause (bb) has been wrongly inserted in the relief
clause of para 24 of the plaint. The Central Government is a Statutory
Receiver of the disputed area under Act 33 of 1993 as interpreted by the
Supreme Court in its judgment dated 24.10.1994 reported in 1994 (VI) SCC
360. According to the findings recorded by this Hon'ble Court in order dated
25.5.1995 on C.M.Application No.9 (0) of 1995, there does not exist any lis
now between the plaintiff and the Central Government and no such decree
can be claimed in the suit.
ADDITIONAL PLEAS:
46. That the amendments made in the plaint from time to time and with the
permission of the court after its order dated 25.5.1995 on C.M. Application
No: 9(0) of 1995 are not verified at all. They can not be read and relied upon
as part of the plaint. The application for amendment was signed by Mohd.
Hashim alone. he does not hold any power of Attorney or authority on
behalf of other plaintiffs, and in particular the Principal plaintiff Sunni
Central Board of Wakfs, U.P. The amendments made in the plainst cannot,
therefore, be read and relied upon as part of the plaint.
47. That the contents of paragraph no:21-A are liable to be struck off for
being unnecessary and vexatious and would prejudice and delay the fair
trial of the suit. None of the allegations made therein are against any of
the defendants in the suit, nor were any of them responsible for any of
imaginary wrongs complained off therein. There is no claim for the
154
restoration of building as it stood on 5.12.1992, obviously because Mohd.
Hashim, who alone amongst the several plaintiffs had applied for
amendment, must have known that the talk of restoration of the building
as it existed on 5.12.1992 was moonshine and could not be decreed in the
suit. No claim for any relief of retoration of building as it existed on
5.12.1992 has been made even after the amendment of plaint prayed for
by him. The whole of the contents of para 21-A are meaningless and
unnecessary. They would seem to have been made merely to tease,
scandalize and provoke the devotees of Bhagwan Sri Ram Lala Virajman
at Shri Ram Janma Bhumi. The allegations made are all incorrect and
their retention as a part of the plaint will only delay the fair trial of the
real issues between the parties in the suit.
48. That on the facts and grounds already stated in paragraphs
25,26,27,28,29,30,31 of the answering defendants written statement, the
structure at Shri Ram Janam Bhumi which was demolished on 6.12.1992
was not a mosque at all and its site always was and continues to be a place
of worship for the Hindus and owned and possessed by Shri Ram Lala
Virajman at Sri Ram Janma Bhumi. There could be thus no question of
the place being a mosque or Muslims being entitled to offer prayers
thereon after the demolition of the structure in view of the continuance of
worship of Bhagwan Sri Rama Lala seated thereat under a canopy.
49. That the acquisition of the areas under the Acquisition of Certain Area of
Ayodhya Act (Act No.33 of 1993) was not made for any of the purposes
of the Central Government. The Central Government holds the land
beneath the structure (Including the outer and inner courtyard) as a
statutory Receiver until the adjudication of the dispute relating to the
disputed area in the suits pending before this Court, when the Act was
enforced (7.1.1993), viz, O.S.13,4 and 5 of 1989, with the obligation to
hand over the disputed area aforementioned to the party found entitled
thereto in suits, and to return the remaining area to the original owners
thereof.
50. That clause (bb) has wrongly been inserted in the prayer clause. No
relief can be granted against any person who is not a party in the suit.
The Central Government is statutory Receiver of the area acquaired under
155
Act no.33 of 1993. It has not been appointed as such by this court. The
structure in the form of canopy under, which Sri Ram Lala sits, is not an
unauthorised structure, nor can the idols be removed therefrom by any
decree of the court, more so in a suit in which neither the Deity nor
Bhagwan Sri Ram Lala nor the persons who erected the canopy are
parties.
51.That as already stated in para 2 of the written statement of answering
defendant, the Khasra numbers of the alleged Graveyard and Mosque
are all imaginary and fictitious and are not identifiable at site. In
Schedule A of the plaint, the said numbers are described as the Nazul
Khasra numbers. There is nothing like Nazul Khasra numbers in law.
The law requires identification of immovable property in suit by numbers
in a record of settlement or Survery vide order 7 Rule 3 C.P.C. No relief
can therefore, be granted in the suit with refrence to Schedule A of the
plaint. The Act 33 of 1993 also refers to the record of settlement of
village Kot Ram Chandra, Pargana Haveli Avadh, Tehsil Sadar, District:
Faizabad.
52. That in the light of supervening facts and circumstances, the
disapperance and non-existence of the property in respect of which the
relief is claimed in the plaint, the suit has become wholly infructuous and
cannot be proceed with any further.
53.That the suit even after amendment of the plaint is not maintainable in
law.
54.That the suit is liable to be dismissed with costs.
Dated:August 29,1995 Sd./- Dharam Das
Defendant No.13
156
ORIGINAL SUIT NO: 4 OF 1989
(R.S.No.12 of 1961)
Sunni Central Board of Waqf & Ors. Plaintiffs
Versus
Gopal Singh Visarad & Ors. .Defendants
(ADDITIONAL) WRITTEN STATEMENT UNDER ORDER VIII
RULE 9 C.P.C. TO THE AMENDED PLAINT BY DEFENDANT NO.17
RAMESH CHANDRA TRIPATHI.
The defendant No.17, named above, most respectfully begs to submit
as under:-
1. That the contents of para 21A of the amended plaint are not admitted.
No Masjid or Babri Masjid ever existed at the land in question, and as
such no Masjid was demolished on 6.12.1992. It is further false to
allege that idols were placed only in the night of 22
nd
/23
rd
December,
1949, but the fact is that idols were in existence at the place in
question from the time immemorial. It may be mentioned here that
Babar was an invader and he had no legal authority to construct any
Masjid at the sacred place of Hindus i.e. the birth place of Lord Shri
Ram. Mughal invador Babar through his Commander Mir Baqi tried
to demolish the old glorious temple of Lord Shri Ram at the place in
question, but he could not succeed in his mission. After the riot in
1934, the three domes of the temple were damged. It is submitted that
before the said date, the outlook of the building was of pure Hindu
temple, but while carrying out repair works, the Britieshers tried to
give it the shape of mosque and three domes were constructed over
Kasauti pillars which were of temple. The Hindus have all along been
in possession over he entire area of Shri Ram Janmaabhoomi. The
land in question has all along been in possession of Hindus and
devotees of Lord Shri Ram. The worship of Lord Shri Ram Lala
Virajman is going on since the time immemorial. It is further
submitted that with a view to renovate the old temple and to construct
157
a new one, Kar Sewa was performed and the said action cannot be said
to be in violation of any order passed by any court. There was no
order in force against Hindus in respect of the temple
property/structure. it is submitted that the people of the State had
voted for Bhartiya Janta Party in the election as it was committed to
fulfil the aspirations of the people to construct a glorious Shri ram
Temple at the place in question. It is true that the Bhartiya Janata
Party Government did not resort to firing and barbarian action which
was adopted earlier by the Government headed by Sri Mulayam Singh
Yadav on 30.10.1990 and 2.11.1990. It is further submitted that the
Government cannot suppress the will of the people and it has to
honour and fulfil aspirations of the people in the democratic set up.
The Bhartiya Janata Party has neither abetted for demolition of the
structure, nor did anything in violation of law. The devotees of Lord
Shri Ram who were present in lacs decided to demolish the old
structure. In fact no offence was committed and no law was violated
in demolishing the structure of Hindu temple with an intent to
construct a big temple. At this place, it may be mentioned here that
the Hindus have never been fanatic; they allowed every religion to
flourish in Bharatvarsh. There is no evidence in history to show that
the Hindus ever demolished any mosque or place of worship of any
other religion. The history speaks otherwise. Every Mughal invader
and ruler from Mohammad-bin-Qasim to Aurangzeb and even
thereafter demolished, destroyed and looted the temples of Hindus.
The plaintiffs never had/have any concern with the land in question
and also they are not entitled for restoration of the building or its
possession.
2. That the contents of para 21-B of the amended plaint are not admitted.
The Muslim law cannot be made applicable in Bharatvarsh. Muslim
law is also subject to the provisions of Constitution; it is the
Constitution which is supreme and not any personal law, muchless
Muslim law. Muslims cannot use any open piece of land in question
for offering prayers and they also cannot encroach upon the land of
religious places of Hindus. Under Shastrik law applicable to Hindus,
158
the property once vested in the deity continues to remain of the deity.
It is specifically submitted that the entire property in question belongs
to Shri Ram Lala Virajman who is in existence from the time
immemorial and is being worshipped by his devotees at the place in
question without any interruption till date. According to the own
averments of the plaintiffs, the place in dispute has got no significance
for them as they can offer prayers at any place, even in open.
It would be appropriate and in consonance with the principles of
secularism that the Muslims do not offer prayers within the vicinity
of the birth-place of Lord Shri Ram Lala Virajman, which is sacred for
Hindus and offer their prayers beyond the area of Panchkashi
Parikrama. That will create brotherhood and peace everywhere. The
para under reply itself shows that the alleged mosque was unnecessary
and meaningless for Muslims too. It is further submitted that over the
land in question, no mosque ever existed and the Muslim are not
entitled to encroach upon the land in question or offer prayers at that
place.
3. That the contents of para 21-C of the amended plaint are not admitted.
It is further submitted that no mosque ever existed over the land in
question and no property or land belonging to mosque has been
acquired. The entire area covered under the Ordinance No.8 of 1993
and Act No.33 of 1993 belongs to Hindus and the devotees of Shri
Ram Lala Virajman. The judgment of the Hon'ble Supreme Court is
being misinterpreted and nowhere Hon'ble Supreme Court has held
that the area covered by the Act belongs to any mosque or adjacent
area will be provided for enjoyment of the crucial area of mosque
portion as per requirement.
4. That the relief claus 24-BB of the amended plaint cannot be granted to
the plaintiffs. It is further submitted that the said relief has not been
allowed to be added by this Hon'ble Court vide its order dated
25.5.1995. It is further submitted that the property in dispute has not
been described in Schedule-A to the plaint. The description in
Schedule A of the plaint cannot be termed as suit property as no
dimensions, width, statement of survey numbers etc. have been given
159
for identifying the property as required by Order VII Rule 3 C.P.C. and
hence the property described in Schedule A of the plaint cannot be
termed as suit property being vague and unidentifiable on the spot.
The plaintiffs are not entitled for the possession of the structure
standing at the site at the land in question and the adjacent are belongs
to Hindu and devotees of Lord Shri ram. Please also see additional
pleas.
ADDITIONAL PLEAS
5. That it is worth to mention here that Bharatvarsh was divided on the
basis of the religion and Pakistan was created for Muslim and the rest
part of Bharatvarsh remained for Hindus. Secularism was adopted in
the Constitution as it is one of the pillars of Vedic religion. No
religion of the world preaches religious tolerance and secularism
except the Vedic scriptures. No other community or religious group
can claim any privilege or additional rights in derogation of the rights
of Hindus. The rights of other religious group or community are
subject to the rights of Hindus.
6. That it is an undisputed fact that Lord Ram, Lord Krishna and Lord
Shiv are cultural heritage of Bharatvarsh, which has been recognized
by Constituent Assembly. In the original constitution, on which the
members signed, the pictures of our recognized cultural heritage can
be seen which include the scene from Ramayana (conquest over Lanka
and recovery of Sita by Lord Ram). Thus the citizens of this country
are entitled to pay homage to their Lord at His birth-place and it being
sacred place for Hindus cannot belong to Muslims or any other
community or religious group. Therefore, the claim of Muslims over
the land in question is unconstitutional and is also against Islamic laws
and in the circumstances, the plaintiffs cannot claim themselves to be
Muslims entitled to file the suit.
7. That it may be mentioned here that even according to the plaintiffs, the
devotees of Lord Shri Ram and Hindus in general came into
possession of disputed structure on 22
nd
/23
rd
December, 1949 i.e.
before the commencement of the Constitution on 26
th
January, 1950.
160
If it is so, it cannot be said that the Hindus have committed any wrong.
They have rectified the curse of Mughal Slavery before the
commencement of the Constitution. The said action of invaders had
no sanction of law and after independence, it is the right of citizens to
nullify every misdeed and wrong action of the invaders.
8. That the entire area including the place in question belongs to deity
Lord Shri Ram Lala Virajman and His devotees and worshippers are
entitled to offer prayers, Pooja, Arti, Bhog etc. and to pay homage to
their Great Lord. They have also right to construct a glorious temple
at the place in question.
9. That it is remarkable to mention here that under the debris of
demolished temple structure, a lot of signs and material concerning
temple have been found. The answering defendant believes that under
the orders of this Hon'ble Court, they would be in safe custody. It may
be mentioned here that a very big Chabutara beneath the present
structure exists which also reveals that there existed a glorious and big
temple of Lord Shri Ram. There is no evidence, signs or material at all
to show that there was any mosque.
10. That the statutory receiver has not been arrayed as party to the suit and
as such the plaintiffs cannot claim any relief against the receiver.
11. That Sunni Central Board of Waqfs has no legal authority to file the
suit and as such the suit is liable to be dismissed.
12. That the (amended) relief as prayed for by way of amendment has also
become time-barred.
13. That the amended relief cannot be granted to the plaintiffs as the same
is not permissible under the law.
14. That the case is to be decided on the principles of justice, equity and
good conscience. Prayer for injunction has to be refused if the case of
the plaintiff does not come within the four corners of the said
principles. Since the plaintiffs have failed to prove that their case
comes within the ambit of justice, equity and good conscience, the suit
is liable to be dismissed, as no relief can be granted.
15. That the suit cannot be termed as representative suit; the compliance of
Order 1 Rule 8 of the C.P.C. has not been made. Hindu community as
161
a whole has not been represented and legal procedure for the same has
not been followed. The suit in the representative character is not
maintainable.
16. That the waqf properties are not immune from the operation of law and
no privilege or advantage can be given to waqf properties. The
concept of mosque and graveyard, whatever may be under Islamic law,
is subject to the provisions of the Constitution. The claim of the
plaintiffs based on Islamic law, which is not applicable in Bharatvarsh,
is to be rejected.
17. That the suit property has not been described till date. The schedule
annexed to the plaint with the description of Nazul numbers has no
sanction of law. Moreover, the same was no brought on record in
accordance with law. Amendment of the plaint in this regard is time-
barred and the same is also illegal, inoperative and void.
18. That the suit as framed is a suit for declaration and the relief for
delivery of possession has not been made in specific terms as the said
relief was time-barred on the date of institution of the suit. Now by
way of amendment, relief of possession from statutory receiver is
being sought and as such the plaintiffs are stopped from claiming
possession of the property at this stage and the said claim has also
become time-barred.
19. That the property in suit is the birth-place of Lord Shri Ram and this
fact is established from the customs and usages having the force of
law. At the time of the commencement of the Constitution on
26.1.1995, in view of Article 372 of the Constitution, all laws in force
in the territory of India immediately before the commencement of the
Constitution shall continue in force until altered, repealed or amended
by a competent Legislature.
20. That it is submitted that the entire structure including inner and outer
courtyard, sanctum sanctorium and Ram Chabutara is and was part of
the same building. Those are all deities property and He can sit
anywhere No likes within that campus.
21. That Schedule A to the amendment application dated 2.1.1962 has
not been signed by any party or counsel and in fact nobody can dare to
162
sign the said paper and as such the said Schedule which is not signed
and verified, cannot be added to the plaint. The genuineness of the
said schedule is also disputed.
22. That according to the plaintiffs, the idols were placed in the structure
on 22/23.12.1949. It cannot be disputed even by the plaintiffs that
worship of the deity is going on since then and Arti Bhog and Pooja
etc. are being offered, for more than 45 years.
23. That it is pertinent to mention that no suit has been brought by any
person or body of persons from the Muslim side claiming
dispossession of the deity. Thus, the possession of the deity is hostile
to the interest of the plaintiffs which is in their knowledge, but no suit
has been filed against the deity i.e. Shri Ram Lala Virajman. Thus the
deity has perfected his title by remaining in adverse possession and the
plaintiffs are stopped from challenging the existence of deity now and
claiming possession which has become time-barred.
Lucknow:Dated Sd./- Rameshchandra Tripathi
Sept. 14,1995 Defendant No.17

163
ORIGINAL SUIT NO: 4 OF 1989
(R.S.No.12 of 1961)
The Sunni Central Board of Waqf U.P. Lucknow & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants
WRITTEN STATEMENT ON BEHALF OF MAHANTH GANGADASS.
Para 1. Denied. Totally false and concocted.
Para 2. Denied.
Para 3. Denied.
Para 4. Denied.
Para 5. Denied.
Para 6. Denied. Any statement filed by the said Raghuarbardass
alongwith the alleged plaint would be false and fictitious and is
not binding on the answering defendant.
Para 7. Denied.
Para 8. That the allegations contained in para 8 of the plaint are denied.
The answering defendants deny the allegations of the alleged
Babri Mosque and the allegations of its being damaged and of
its being rebuilt and reconstructed at any bodys cost or
throughthekadar is altogether fictitious. Even if any communal
riot be proved to have occurred in Ajodhya in 1934. No mosque
whatsoever was damaged in Ajodhya in 1935.
Para 9. That the contents of para 9 of the plaint are totally denied except
that UP Muslim Wakf Act, 1936 was passed by the UP
Legislature the answering defendants deny the inquiry of the
report alleged in the said plaint para and its publication in the
Gazettee. Even if any such enquiry were proved to have been
held and its report published, it was totally an ex-parte enquiry
secretly and surrptitiously made without any intimation and
information to the answering defendant and the same is not
binding upon them.
164
Para 10. No knowledge denied.
Para 11. Not admitted.
Para 12. Denied.
Para 13. That the contents of para 13 of the plaint are disputed and are
denied. The fact is that the said City Magistrate started
proceedings u/s 145 Cr.P.C. by attaching the temple of Janam
Bhumi and placing it under the custody of Priyadutt Ram
defendant No.2 as receiver who still continues as such but the
Pooja Path of the diety in the said temple are regularly
performed on behalf of the Hindu community. The Muslims
have no right to offer prayer in the said temple.
Para 14. Denied.
Para 15. No knowledge. Hence denied. But this much is correct that the
building in the present suit is a temple.
Para 16. No knowledge. Denied.
Para 17. No knowledge. Hence denied.
Para 18. No knowledge. Hence denied.
Para 19. That the contents of para 19 of the plaint is denied. The Sunni
Board cannot represent the Shia community. The suit as
contemplated u/order 1 rule 8 C.P.C. is misconceived. The
answering defendant is informed and believe that all the
individual plaintiffs are Sunnis and represents the Sunnis
community. It is said that Babar was a Shia and not a Sunni.
Para 20. That regarding plaint para 20 only this much is admitted that the
building in question i.e. the temple of Janam Bhum is at present
in the custody and management of the receiver. The rest of the
contents of the para are denied. The plaintiffs are not entitled to
any relief.
Para 21. No knowledge. Hence denied.
Para 22. Denied.
Para 23. Denied.
Para 24. That the plaintiffs are not entitled to any such reliefs.
165
ADDITIONAL PLEA
Para 25. That the sketch map attached to the plaint is totally incorrect and
is misleading. The details given in the plaint are wrong and
imiginary. A correct sketchmap of the property indispute is
annexed with the written statement as annexure A and which
correctly shows the various cnstructions and placed in their
relative positions.
Para 28. That the suit is time barred and the plaintiffs for the Muslim or
any of its members have not been in possession within the
limitation over the property in suit.
Para 29. That the contesting defendant does not take even a drop of water
without the darshan of the said Lord Rama installed in the
disputed place known as Janam Bhumi Lord Rama is a stadio of
the answering defendants. The answering defendant is doing
such darshan of the said Lord Rama continuously for 30-32
years. And thus accrued a right of Darshan of the said Lord
Rama by prescription and long usur which the answering
defendant have enjoyed peacefully and without any inturruption
for more 30-32 years.
Para 30. That the plaintiffs suit deserves to be dismissed with costs.
Through: Sd./- Mahant Ganga Das
Dated 18.7.69/19.7.69
166
ORIGINAL SUIT NO: 4 OF 1989
(Transferred Suit No.12 of 1961 from the Court
of Civil Judge, Faizabad)
The Sunni Central Board of Waqf & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants
Written Statement on behalf of Madan Mohan Gupta, the Convenor of Akhil
Bharatiya Shri Ram Janam Bhumi Punrudhar Samiti, E-7/45, Bangla T.T.
Nagar, Bhopal, newly added Defendant No. ____(added by the order dated
23.10.89 of the Hon'ble High Court) is as follows:-
1. That the contents of paragraph 1 of the plaint as they stand are wrong
and are denied.
2. That the contents of paragraph 2 of the plaint are absolutely wrong and
denied. There has never been any battle between Emperor Babar and
the previous Ruler of Ayodhya nor any grave yard or mosque as
alleged has been built or dedicated by Emperor Babar.
3. That the contents of paragraph 3 of the plaint as they stand are wrong
and are denied. The grants, if any, as mentioned in the plaint were
only political act and do not confer any rights on the disputed property.
4. That the contents of paragraph 4 of the plaint are not admitted.
5. That the contents of paragraph 5 of the plaint are denied.
6. That the contents of paragraph 6 of the plaint are denied. The
answering defendants are not aware of any such alleged suit. Any
sketch map filed by said Raghubir Das along with the alleged plaint
would be fictitious and would not be binding on the answering
defendants.
7. That the contents of paragraph 6-A, 6-B, 6-C, 6-E, 6-F of the plaint are
denied. The building in dispute is a temple and not a mosque. Any
alleged decision cannot and does not operate as res-judicata in the
present suit. Neither the answering defendant nor the Hindu Public in
general derive any title from the said Mahant Raghubar Das or his
167
representatives and are not bound by their any action or conduct, nor
any decision in the said suit No.61/280 of 1985.
8. That the contents of paragraph 7 of the plaint are denied.
9. That paragraph 8 of the plaint as it stands is denied.
10. That the contents of paragraph 9 of the plaint except for the act, as
they stand, are denied. The alleged enquiry, if any, is wholly ex parte
and behind the back of the Hindu Public in general and is not at all
binding on Hindus as such.
11. That the contents of paragraph 10 of the plaint are not admitted as they
stand, as neither the answering defendants nor the Hindu Public in
general have been given any notice nor they had any knowledge of the
same. Even otherwise, non-filing of any such suit could not convert a
Hindu temple into a Muslim mosque.
12. That the allegations made in paragraph 11 of the plaint are totally false
and are denied. The building which the plaintiffs allege as Babari
masjid is and has been always the Ram Janam Bhumi Temple with the
idols of Hindu God.
13. That the contents of paragraph 11-A of the plaint are denied.
14. That the facts stated in paragraph 12 are not within the knowledge of
the answering defendants, hence denied. The plaintiffs are put to strict
proof thereof.
15. That the contents of paragraph 13 of the plaint are not in the
knowledge of the answering defendant. It is, however, emphatically
denied that the Muslims have any legal or constitutional rights of
offering prayers alleged at the sight of Ram Janam Bhumi.
16. That the contents of paragraph 14 of the plaint are denied.
17. That the filing of the suit as mentioned in paragraph 15 of the plaint is
admitted but it is denied that the allegations that the building in suit
was a temple and deities are installed are false, or wrong and are
denied.
18. That the contents of paragraph 16 of the plaint are admitted.
19. That paragraph 17 of the plaint needs no reply.
20. That paragraph 18 of the plaint relates to the proceedings of suit no.2
of 1950 and needs no reply axcept that any thing contrary to the Court
168
records is denied.
21. That in reply to paragraph 19 of the plaint it is stated that the plaintiffs
have no right to make the original defendants contest the suit in a
representative capacity of the Hindu community who resides from
Kashmir to Kanyakumari and from Dwarika to Assam and Nagaland.
None of the defendants represent all the Hindus in India.
22. That paragraph 20 of the plaint as it stands is denied. The plaintiffs
have no cause of action to file the present suit.
23. That the contents of paragraph 21 of the plaint as they stand are not
admitted. The plaintiffs are put to strict proof thereof.
24. That paragraph 22 of the plaint is not admitted. The suit is
undervalued.
25. That paragraph 23 of the plaint is denied. The suit is barred, the
plaintiffs have no cause of action.
26. That paragraph 24 of the plaint is denied. The plaintiffs are not
entitled to any relief and the suit is liable to be rejected with costs.
ADDITIONAL PLEAS
27. That Lord Rama, an incarnation of God, was born many many
thousand years ago in Ayodhya and his birth place is known as Ram
Janam Bhumi or Ram Janma Sthan. This birth place is worshipped for
the last many thousand years by the Hindu public who believe in
divine presence at Ram Janma Bhumi in Ayodhya and have a devout
faith that by offering worship at that place they are the recipients of the
bounties and blessings of God, and this by itself constitutes the feature
of a temple in Hindu religion. However, a holy temple stood at this
place in ancient times. At a later stage Maharaja Vikramaditya
reconstructed and resusisticated Ram Janma Bhumi temple and for
Hindus it is a Spiritual base of Hindu religion.
28. That according to Hindu scriptures and traditions, Ram was born
between the close of Treta Yuga and beginning of Dwapar Yuga, and
that the span of Dwapar Yuga was about eight lacs of years. He was
God incarnate and took birth in human form to protect the saints, to
destroy the evils and to establish Dharma and save the world. Since
then for times immemorial he is being worshipped by Hindus with the
169
highest devotion and reverence.
29. That the literature is full with the narration of ideal life lived by Ram
on this earth beginning with Ramayana of sage Balmiki who according
to the evidence in the treatise was a contemporary of Ram. Then
comes sage Vyasa who has mentioned Ram at many places in
Mahabharat and has written a summary in his holy Biography in
Ramopakhyan parva which is part of Bara Parva, Purans,
Arthashastras of Kautilya, Raghubansh of Kalidas, Satrabandha of
great Bhakta King Prabarsein and multitudes of other books in many
languages of India describe the life of Ram and in all these literatures
Ayodhya and its sanctity are repeatedly described.
30. That the last but not the least is Ramcharitra Manas written by
Goswami Tulsidas (1497-1623 AD), who was contemporary of four
Moghal Emperors viz. Babur, Humaun, Akbar and Jahangir. In
Uttarakhand of Ramayan he has described the devotion with which the
functions of Ram Janma were celebrated in Ayodhya. Not a single
word is to be found in this great treatise about the existence of Baburi
Masjid or performance of Namaz at Ram Janma Bhumi.
31. That Ram is the most renowned and respected incarnations born in
India. He was born on Navmi in the month of Chaitra according to
Hindu calendar, which is popularly known as Ram Navmi. He killed
demon Emperor Ravan and the entire episode is celebrated every year
in the shape of Dussehra in every part of India. After the conquest of
Lanka when Ram returned to Ayodhya, the said occasion was
celebrated with great enthusiasm and the Diwali is the successor of
that celebration which is still being celebrated all over India with
participation of all members of religions, communities and sects. The
Father of Nation, Mahatma Gandhi, was also a devotee of Ram. In
fact when the assesian shot him the only word which came out from
his mouth was Hay Ram. The ideal government commended by him
was Ram Rajya. Ram thus enjoys respects of all mankind.
32. That in a very ancient book known as Ayodhya Mahatmya (A Guide
for Travellers), the original of which is in Sanskrit but its translation
by Ram Narain has been published in the journal of the Asiatic society
170
of Bengal, Vol. 54 Part I, Chapter-I-C-4-1875 Calcutta 1875 states that
all the four sons of emperor Dashrath were born in the palaces of their
respective mothers. At one place it is described that Sita Rasoi is in
Kaushalya Bhavan, the Janmasthal. The researchers have concluded
that this ancient book appears to have come into existence during the
tenure of Emperor Akbar. There appears to be no description of any so
called Baburi Masjid alleged to have been constructed by Emperor
Babur.
33. That the Faizabad Gazetteer, Volume 43 (XLIII) of the District
Gazetteers of the United Provinces of Agra and Avadh compiled by Sri
H.R.Nevill, I.C.S., published by Government Press in 1905 under the
topic Directory while dealing with Ayodhya (at page 12-F) affirmed
that The Janmasthan was in Ramkot and marked the birth place of
Ram. Later on, it is said, The Mosque has two inscriptions, one on
the outside and the other on the pulpit; both are in Persian and bear the
date 935 Hizri. Of the authensity of the inscriptions there can be no
doubt, but no record of the visit to Ayodhya is to be found in the
Musalman historians. It must have occurred about the time of his
expedition to Bihar. It is to be noted that nothing has been found so
far to establish the visit of Babur to Ayodhya. Only on the basis of
these two inscriptions, the conclusion is being drawn all round that the
mosque was built by Babur. It is very doubtful that it was so built. It
appears to be a creation of Britishers sometimes in the Nineteenth
century in order to create hatred between the two communities of India
viz. Hindus and Muslims and thereby implement an effective policy of
communal disharmony, and thereby create problems of law and order
so that their annexation of Avadh may be justified on moral grounds.
The script on the outer inscription of the mosque is pretty bold and
more artistic, a style which was developed sometimes in the middle
half of the Nineteenth century while the inner inscription is very fine
and thin, a style developed in the latter half of the Nineteenth century.
It is therefore absolutely certain that on the basis of these two
inscriptions it cannot be concluded that either the mosque was built in
1528 AD or in 935 Hizri, or it was built by Emperor Babur or his
171
Governor Mir Baqui, as stated therein.
34. That in U.P. District Gazetters Faizabad published by U.P. Government
in 1960 and edited by Smt. Esha Basanti Joshi at page 47 quotes the
inscription inside the mosque and relies on it for the date of
construction of the mosque. The translation of the inscription in
Persian given by her is as follows:-
By the command of Emperor Babur whose justice is an edifice
reaching upto the very height of the heavens. The good hearted Mir
Baqui built this alighting- place of angels; Buvad Khair Baqi! (May
this goodness last for ever). The year of building it was made clear
likewise when I said Buvad Khair Baqi (=935).
This also shows that for both the things i.e. for year of construction
and for naming Emperor Babur as the builder of the mosque,
authorities have relied upon only on two inscriptions found in the
mosque.
35. That in the Babur Nama translated by Annette Susannah Beveridge,
Vol. II published by Sayeed International, New Delhi, in appendix U
the heading is The Inscriptions of Baburs mosque in Ayodhya
(Avadh). While reproducing the inscription inside the mosque, and
translating it at page IXXVIII after quoting the cuplets and giving its
translation and working out the number 935 to identify the year, the
author at the bottom appended the following note, which is very
important:-
Presumably the order for building the mosque was given during
Baburs stay in Aud (Ayodhya) in 934 A.H. at which time he would be
impressed by the dignity and sanctity of the ancient Hindu shrine- it
(at least in part) displaced and like the obedient follower of
Muhammad he was in intolerance of another Faith, would regard the
substitution of a temple by a mosque as dutiful and worthy. The
mosque was finished in 935 A.H. but no mention of its completion is
in the Babur Nama. The diary for 935 A.H. has many minor lacunae;
that the year 935 A.H. has lost much matter, breaking off before where
the account of Aud might be looked for. On the next page the author
says, The inscription is incomplete and the above is the plain
interpretation which can be given to the cuplets (aforesaid) that are to
hand.
36. That the Britishers in achieving their object got a book published in
1813 by Laiden and known as Memoirs of Badruddin Mohd. Babur,
172
Emperor of Hindustan and for the first time in this book it was stated
that Babur in March 1528 passed through Ayodhya and even though
Laiden has not mentioned that Babur in Ayodhya demolished the
Hindu temples and built the mosque in their place, yet the British
rulers gave currency to this false news that Babur demolished the Ram
Janma Bhumi Mandir and constructed the Baburi Masjid thereon. The
translated Babur Nama, Memoirs of Babur, published in 1921 and
translated by M.A.S. Beveridge has mentioned that Babur never
interfered with the religion of others and even though he visited
various Hindu temples he appreciated their archaeological beauties. It
appears there are no evidences that Babur ever visited Ayodhya or
demolished any Hindu temple in Ayodhya. To claim the disputed
mosque as one built by Babur 400 years ago by the plaintiffs is
therefore wholly wrong. In fact, in Faizabad Gazetters 1960 at page
352, it is said It is said that at the time of Muslim conquest there were
three important Hindu shrines (Ayodhya) and little else, the
Janmasthan temple, the Swargadwar and the Treta-Ke-Thakur. The
Janmasthan was in Ramkot and marked the birth place of Ram..
37. That there was no mosque even till 1855 is established from the
following narration in Faizabad Gazetteer 1960 at p. 63,where it is
stated as under:-
In 1855 a serious conflict between Vairagis and the Muslims at the
site of Hanumangarhi in Ayodhya, both claiming it to be a place of
worship connected with their respect respective religions. King Wajid
Ali Shah is said to have appointed a Committee to investigate this
matter which held a public meeting in Gulab Bari. It appears that
among those assembled no one testified the existence of the mosque.
Therefore, the Committee unanimously decided the issue in favour of
the Vairagis. When the report of the Committee reached Lucknow, it
caused a sensation among the Muslims. A council of action was
formed of which Maulvi Amir Ali of Amethi (District Lucknow) was
elected leader. He was staying at Suhali and succeeded in attracting a
large number of followers. On learning this the Vairagis started
arrangements for the defence of the place. Wajid Ali Shah then
ordered a regiment to guard it. At last on November 7, 1855 Maulvi
Amir Ali started for Rudauli with his followers. On refusing to retrace
his steps when ordered to do so by Captain Barlow, a fight ensued in
which he and most of his followers were killed.
The Gazetteer for the above has in the Footnote appended referred
173
toKawal-ul-din Haider: Qaisar-ut-Tawarikh or Tarikh-I-Avadh Part II
pp. 110-128 Mirza Zan : Radiqa-I-Shuhda (Lucknow 1772 A.H./1855-
56 AD).
38. That in Faizabad Gazetter of 1905 at page 174 it is said The
desecration of the most sacred spot in the city caused great bitterness
between the Hindus and Musalmans. On many occasions the feelings
led to bloodshed and in 1855 an open fight occurred, the Musalmans
occupying the Janmasthan in force and thence making a desperate
assault on the Hanumangarhi. They charged up the steps of the temple
but were driven back with considerable loss. The Hindus then made a
counter attack and stormed the Janmasthan, at the gate of which
seventy five Mussalmans were buried, the spot being known as the
Ganj Shahidan or the martyrs resting place. Several of the Kings
Regiment were present but their orders were not to interfere. Shortly
afterwards Maulvi Amir Ali of Amethi in Lucknow organized a regular
expedition with the object of destroying the Hanumangarhi; but he and
his forces were stopped in Barabanki district. It is said that upto this
time both Hindus and Musalmans used to worship in the same building
but since the mutiny the outer closure has been put up in front of the
mosque and the Hindus who are forbidden their access to the inner
yard make their offerings on a platform which they have raised in the
outer one.
39. That in Aine Akbari also no mention of the existence of Baburi Masjid
is to be found.
40. That in Faizabad Gazetter of 1960 at pages 351 and 352 it is said that
With the departure of the Court, the Hindus were left to themselves
and numerous temples and monasteries sprang into existence. Naval
Rai, the Deputy of Nawab Safdar Jung built a fine house in Ayodhya
which still stands on the river front. Probably this rise in importance
was due to the creating popularity of the Ramcharitra Manas of
Tulsidas and the progress of this place became even more rapid after
the annexation of the Avadh by the British. before the middle of the
nineteenth century Ayodhya was regarded as a stronghold of
Hinduism.
174
41. That the following facts also establish that the mosque in dispute has
not been built by Babur at all in 1528 nor is a mosque at all:-
(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 minorities, 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
octagonal. There are two inscriptions in Persian. One on the outside
and the other on pulpit bearing the date 935 Hizri. 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
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Hanumagarhi. 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 a place
which is surrounded on all sides by temples where the sound of music,
of Conch shells or Ghanta Ghariyalis must always disturb the peace
and quiet of the place.
(8) A mosque must have a minaret for calling the Ajan. According to
Baille When an assembly of worshippers pray in a 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 minaret after
the first half century fight. (See P.R. Ganapati Iyers law relating to
Hindu and Muhammadan Endowments 2
nd
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 grave yard 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 any where near the building at Sri Ram Janma
Bhumi o 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.
42. That the mere displacement in part of the ancient Hindu temple of
Ram Janma BhumiStahan will not take away the religious sanctity of
the temple and the site inasmuch as the Hindu religion believes the
presence of the divine spirit at the Ram Janma Bhumi Sthan, worship
176
whereat is conducive to the spiritual well being of the person as the
place relates to the birth place of Lord Ram and to constitute temple it
is not merely the presence of idols as such which is required. The acts
of vandalism perpetrated either by Babur or by any other person after
him would not take away the religious sanctity of the place or destroy
the religious belief of the Hindus attached to that place, nor the place
as such could be deemed to be out of possession of the Hindus as such.
As Carneigy puts it "Ayodhya which is to the Hindus as Macca is to
the Muhammadans, Jerusalam to the Jews. has in the traditions of the
Orthodox, a highly mythical origin, being founded for additional
security not on earth for that is transitory but on the chariot wheel of
the Great Creator Himself which will endure for ever. It is intimately
connected with the mass of legend relating to Ram and Suryabanshi
(solar) race and was certainly the capital of several reigning
dynasties. It is a place of great antiquity. According to Hindu
mythology, it represents the forehead of Vishnu and is the chief of the
seven cities (Saptapuri) of pilgrimage in India (See 1960 Faizabad
Gazetteer at page 351). The worship at the place has continued since
ever throughout the ages. The Hindus were never out of actual and
legal possession. Their rights always remained and still exists on the
land in dispute.
43. That according to the case set up by certain defendants and the
documents filed by them or on their behalf, the Babari Masjid was a
Sunni Waqf but its Mutwallis being the descendants of Mir Baqi were
Shia Muslims. It is wholly incomprehensible in law that a Waqf
created by a Shia Waqif would be a Sunni Waqf at all. The mosque
according to the plaintiffs was built by Mir Baqi, who was a Shia and
that he being the Waqif so were the Mutwallis one after the other. But
fully aware of the realities the Shia Central Board of Waqfs U.P. did
not agitate the matter, while the plaintiffs purported to take
proceedings on the basis of some report of the Waqf Inspector. The
said proceedings are not at all binding on the answering defendants or
Hindus in general. The answering defendants were never parties to
those proceedings, nor the entire Hindu community was represented in
177
those proceedings taken by the Sunni Waqf Board. Those proceedings
are clearly violative of principles of natural justice and are null and
void.
44. That before the middle of the 19
th
Century, as mentioned above,
Ayodhya was regarded as a stronghold of Hindus and the Ram Janma
Bhumi was at all material time accessible to Hindus. Since then
Hindus are in peaceful possession of the place and the temple in
dispute and are performing the worship therein peacefully and
uninterruptedly.
45. That in 1949 some members of the Muslim community tried to raise
disputes whereupon the proceedings under Section 145 Cr.P.C. were
initiated and even thereafter the Hindus continued to worship at the
place. According to U.P. District Gazetteers Faizabad 1960 Annexures
in Table 11 at page 450 shows that various fairs are being held on
different days showing there large gatherings of Hindus varying from
2 lacs to 4 lacs, which confirms the description of Carneigy about
Ayodhya being Macca to Hindus.
46. That the same Gazetteer Faizabad 1960 records a very important fact
by Sri William Finch when it mentions as follows at page 50:-
William Finch, the English merchant who traveled through the
Moghal Empire (1608-1611) says that Avadh is a city of
ancient note and seate of a Potan King, now much ruined; the
castle built four hundred years ago. here are also the ruins of
Rani Chand (s) 3 Castle and houses which the Indians
acknowledge for the great God saying that he took a flesh upon
him to see Tamasha of the world. In these ruins remayne certain
Brahmens who record the names of all such Indians as work
themselves in the river running thereby; which custume, they
say, hath continued four lackes of years (which is three hundred
ninety four hundred thousand and five hundred years before the
worlds creation). At the bottom against the word 3 which is
indicated in the citation against the word Rani Chand it is
explained as follows:-

Rani Chandra, the Hero of Ramayan. The reference is to
the mound known as Ramkot or fort of Ram.
Thus it shows that after Babur during the time of Akbar, Ram Janma
Bhumi Sthan was being worshipped by the Hindus which was noticed
by the English traveller as well. It may be mentioned here that Audh
178
was equivalent to Ayodhya.
47. That the temple and the Sthan has always been the public religious
worship place for the last several thousand years and the interference,
if any, by Babur in 1528 by displacement of a part of the Temple for a
few years could not take away the legal rights of Hindus,
speciallywhen after Baburs death the record of history establishers re-
emergency of Hindus possession over the same. The presence or
absence of the idols would not in any way affect the right, title and
interest of Hindus over the Sthan and the temple in dispute, nor it will
affect in any way the religious character of Ram Janma Bhumi as a
place being a part of the Hindu religion. It is not necessary that there
must be idols installed at the place before it could be described as a
temple and a part of the Hindu religion. As for example, Lord Krishna
left this world at the place near Somnath in the State of Gujarat. The
place is known as Prabhas Patan (Somnath) but at this place there is no
idol of Lord Krishna. Yet the place is a very holy place for Hindus and
is worshipped as the Hindus firmly believe that worship at this place
would be conducive to their spiritual well being and peace. In the
present case what is of the maximum religious importance for Hindus
is the birth place of Lord Ram i.e. the Janma Sthan, the presence of
idols on the place are of later origin when Vikramaditya repaired and
resusticated the temple for the benefit of the worshippers who
subsequently started imagining a particular image in which the God
Ram is manifesting Himself as a divine person to them.
48. That, in the above circumstances, the ouster of Hindu community from
Ram Janma Bhumi did not ever take place. The Hindus have always
been and are still today in lawful possession and shall always be
deemed to be in lawful possession of the site in dispute. In the
alternative, even supposing without admitting that the Hindus were
ousted, yet they have thereafter regained possession and have been
exercising their rights of worship peacefully and to the knowledge of
the plaintiffs for more than twelve years and thus perfected their title
in the eyes of law. The suit is barred by limitation.
49. That Babur is alleged not to have made any endowment or waqf, nor
179
he could. The emperor does not if so facto became the owner of the
whole earth of which he may be a ruler. There is no such concept that
the ruler becomes the true owner of all the land in his kingdom if so
facto. The site in dispute admittedly belongs to Hindus for the last
thousand years. The ruler might have a superior right to levy taxes
etc., but could not be deemed to be the actual owner. In these
circumstances, the claim of the plaintiffs that Babur by annexation,
which is emphatically denied, as there was no annexation as such,
became the owner and made a Waqf when there was no battle between
Babur and Raja of Ayodhya and no question of annexation of the
territories arose. The general religious notions of the Hindu
community prior as well as subsequent to Babur has always been that
the temple and the Janma Bhumi Sthan, i.e. Ram Janma Bhumi, the
birth place of the Creator and Lord Ram, are and have always been for
the religious benefit of the Hindus, for the benefit of the truth and
good as against evils and vices, the worship for which the place was
used and stood dedicated was at no relevant time displaced, nor taken
away and hence neither the plaintiffs nor the Muslims acquired any
rights, title or interest in the disputed property. In fact Babur had no
rights to give religious place of Ram Janma Bhumi of Hindus in
perpetuity to Muslims or create any rights in favour of Muslims in
perpetuity over the religious place of Hindus, which is against all
cannons of justice, morality and good conscience. Further a place
already dedicated cannot be rededicated.
50. That birth place of Ram is only located at one particular spot in
Ayodhya. It cannot be shifted to any other place in the world. It is in
the same position for Hindus as Macca for Muslims. As Macca cannot
be shifted so Ram Janma Bhumi cannot be shifted. On the basis of
national policy of assigning the weight of a particular place for a
particular religion or a particular community, the belief and religious
feelings of Hindus in this regard be given supreme importance as a
mosque can be built in any other part.
51. That it has been the national policy of our country since India attained
Independence to value and appreciate the depth of feelings of all
180
communities concerned and redress the wrongs irrespective of the
protests of the opponents on grounds of injuries to their religious
feelings. The Govt. of India under Pt. Jawahar Lal Nehru and Sardar
Patel placed the reconstruction of the Somnath Mandir in Gujarat in
spite of opposition of some Muslims fundamentalists. Similarly, the
claim of Christian fundamentalists on Vivekanand rock was brushed
aside and the Govt. of India okayed the construction of Vivekanand
Mandir near Kanya Kumari.
52. That the plaintiffs have no right to maintain the suit and the suit is
liable to fail on this ground alone.
53. That the plaintiffs are not entitled to any of the reliefs claimed by them
and the suit is liable to be dismissed with costs.
Lucknow dated November 5, 1989 Sd./-
Madan Mohan Gupta
Defendant
(Newly added defendant)
Sd./-
(Sah Om Prakash Agarwal)
counsel for the defendant
181
ADDITIONAL WRITTEN STATEMENT
On behalf of defendant no.2O
IN
ORIGINAL SUIT NO.4 OF 1989
(Regular Suit No.12 of 1961)
The Sunni Central Board of Waqf, U.P. and others Applicants.
Versus
Gopal Singh Visharad & Others Respondents
On behalf of defendant No.20 it is stated as under:-
1. That the allegations in para 21A of the plaint (amended) is not
admitted as stated and is denied.
2. That the allegations of para 21B of the plaint (amended) is not
admitted and is denied.
Corrected today to the permission of
Hon'ble Court. Sd./- 07.01.96
3. That the allegations of para 21C is admitted to this extent that
ordinance No.8A of 1993 was promulgated on 7.1.93 and latter on it
was substituted by Act No.3 of 1993, these ordinance and the Act were
challenged before the Hon'ble Supreme Court. It is also admitted that
Union of India was held as Statutory receiver. Rest of the allegation of
the aforesaid para is not admitted.
ADDITIONAL PLEAS
4. That the disputed land is known as Ram Janam Bhomi, which is very
sacred for the Hindus from time immemorial. There was a temple of
Hindu deity Ram on the aforesaid land. When Babar invaded India
he partly destroyed the said temple. It is alleged that he had
constructed a mosque. In fact the upper structure was constructed and
remaining temple was left as it is. In this construction the malba of the
temple was used. The pillars of the temple were also used in the
construction. On the pillars, the figures of Hindu deity & holy signs
were evidence that Hindu Temple was not completely destroyed. Thus
182
the temple structure existed and it is wrong to claim that a new mosque
was constructed by Babar and handed over to Muslim community.
The muslims were not offering prayer in the disputed structure as there
were in graved figures of Hindu deity on the 14 pillars of the disputed
structure. It is also wrong to say that the Muslims offer Namaz for last
more than 46 years the muslims never offered Namaz. The land or
place does not become mosque. Thus the claim of the plaintiff through
amendment that the disputed land Ram Janam Bhomi will become
Babari Masjid as the Muslims had offered Namaz in the structure is
wrong and incorrect. It is further stated that the nature of Ram Janam
Bhomi will never be changed and it shall always remain as Ram
Janam Bhomi even if Muslims have ever offered namaz in it and it
will not become mosque under the eye of law. It is further stated that
open land is the land of the temple and it cannot be a mosque.
5. That by destruction of the structure, the pillars were also destroyed
which were evidence of Hindu Temple. It is not the destruction of
Babri Mosque but a Hindu temple. The answering defendant No.20 is
entitled to claim the land in dispute for constructing a temple of
Bhagwan Ram on the disputed land.
6. That in case the court decree the suit for re-construction of the
demolished structure, it is necessary that it should be built in the
original shape and model having 14 pillars with the figures of Hindu
diety, lotous, swastic and Ram Chabutara, Sita Rasoi and temple of
Ram Lala.
7. That the building which was alleged as mosque is demolished and now
the land is of the temple of Ram Janam Bhomi, which was demolished
is claimed by the plaintiff through the amendment. The plaintiff has
no right to claim the land of the temple which is the property of
Hindus.
8. That the Babar never became an Emperer of India he was only an
invadar, however no king or Government had a right to hand over or
give the religious land to any person as such Babar had no right to
construct a mosque over Ram Janam Bhomi and give it to Muslims,
nor Muslims have any right to claim Ram Janam Bhomi.
183
9. That similarly the plaintiff cannot claim places of Hindus worship Sita
Rasoi, Ram Chabutara. The claim of the plaintiff is without any basis
nor they are in possession.
Dated:17.10.1995 Sd./- Madan Mohan Gupta
Defendant No.20
184
176 ka1/1
O.O.S.No.4 of 1989
The Sunni Central Board of Wakf U.P. & Ors. Plaintiffs
Versus
Sri Gopal Singh Visarad & Ors. .Defendants
Reg. Suit No.12 of 1961
Replication to the written statement of defendant 3 and 4
Para 1 to 24. The allegations in para 1 to 24 of the plaint are
true. Contrary allegations are denied.
Para 25. The sketch map attached to the plaint is correct. Allegations
against it are denied. The sketch map attached to the written
statement is wrong and denied.
Para 26. Wrong and Denied.
Para 27. Denied. The property in suit is not a temple as alleged and has
never been in possession of the defendants as alleged.
Para 28. Denied.
Para 29. Denied.
Para 30. Denied. The Muslim Public has always been saying prayers and
visiting the Mosque and Ganje-Shahidan which is the property
in suit for last 450 years when the mosque was built.
Para 31. Only this much is admitted that in 1950 the mosque in suit was
attached under Section 145 Cr.P.C. and Sri Priadutta Ram was
appointed Receiver and was placed in possession of the attached
property as such. He is still continuing as Receiver. The rest of
the allegations of this para are absolutely wrong and denied.
Para 32. Denied. The defendants have never been in possession or in-
charge of the property in suit as alleged. The filing of the suit
mentioned in this para is admitted. Rest is denied.
Para 33. Filing of the suit in the court of the Addl. Civil Judge Faizabad
is admitted. The said suit has since been transferred to this
Hon'ble Court and is pending.
Para 34. Denied. The plaintiffs and Muslim Public have been in
possession for last 450 years.
185
Para 35. Denied. The plaintiffs have been in possession of the property
in suit as Mosque and Ganje-shahidan for last 450 years and it is
absolutely wrong that the Hindu public ever had possession of
any sort over the property in suit as temple, as alleged by the
defendants in this para.
Para 36. Denied. The Sketch map and the list given as part of the written
statement is wrong and denied.
Additional Pleas
Para 37. That the Muslim public had been in continuous and open
possession of the mosque and Ganje-Shahidan for last 450
years, i.e. the time when the mosque was built. In 1934 of
course the Hindu Public out of mischief attempted to destroy the
mosque and in their attempt they damaged the mosque at places
which damage was repaired by the Government at the expense
of the Government and Hindus Public was penalized by punitive
tax for their unlawful actions.
Para 38. That the possession of the Muslim public was not disturbed and
they remained in possession of the property as mosque and
saying their usual prayers continuously upto December 1949
when Hindu Public by force entered the mosque, by breaking
open the lock of the mosque and desecrated the mosque by
placing idols inside the mosque which being made by the police
proceedings under Section 145 Cr.P.C. were started and to avoid
apprehension of breach of peace the mosque was placed in
custody of a Receiver. The Receiver is still holding the property
for the benefit of Muslim Public.
Para 39. That the Muslim Public as representative of Wakf has been in
continuous possession of the property in suit for las 450 years
i.e. since the mosque was built and even if the Hindu Public had
any interest whatsoever in the property in suit before that period
of 450 years the Muslim Public as representative of wakf has
perfected title to the property in suit by their long undisturbed
open possession against the interest of Hindu Public to their
186
knowledge which amounts to adverse possession of the wakf
and thus the title or interest, if any, of the Hindu Public has been
extinguished.
Lucknow Dated: Sd./-
September 11/12.1963 Ehtram Ali
Plaintiff
187
O.O.S.No.4 of 1989
Reg. Suit No.12 of 1961
The Sunni Central Board of Wakf U.P. & Ors. Plaintiffs
Versus
Sri Gopal Singh Visharad (Now deceased) & Ors. .Defendants
Replication to the amended written statement of defendant No.10
(President All India Hindu Maha Sabha).
The plaintiffs, above named, beg to submit as under:-
1. That the contents of paras 33 and 34 of the amended written statement
as inserted under the order dated 28.10.1991 (hereinafter referred to as
amended written statement) are the matters of record and they need no
reply.
2. That the contents of para 35 of the amended written statement are
denied as stated and in reply thereto it is submitted that the plaintiffs
are not aware of any 3-point formula referred to in the para under
reply. In any case no such formula finds embodied in the said
Ordinance No.9 of 1990. It is further submitted that the land in
dispute including the mosque in question was not even actually
acquired and the same could not be even legally acquired and any such
acquisition was absolutely illegal, unconstitutional and void.
3. That the contents of para 36 of the amended written statement are also
incorrect and hence denied as stated. As already mentioned above, no
such formula was ever agreed upon by the plaintiffs or by the leaders
of both the communities much less by the Muslim leaders. The
Muslim leaders had categorically rejected the said Ordinance and most
of them had strongly urged for withdrawal of the same. The script of
the T.V. and Air broadcast of the relevant dates, specially of 19
th
October 1990 to 23
rd
October, 1990 will be required by this Hon'ble
Court to be perused for ascertainment of the fact that the said
Ordinance was strongly opposed by the leaders of the Muslim
188
community and also by leaders of Hindu community and even the
Vishwa Hindu Parishad leaders had rejected the same.
4. That the contents of para 37 of the amended written statement are also
incorrect and hence denied as stated. No physical charge of the entire
property in dispute was ever taken over by the said Commissioner,
Faizabad Division. The mosque in question had virtually remained in
the custody of the Receiver all throughout. If any charge is alleged to
have been taken over the same was only a paper transaction and it had
no legal effect upon the custody or management of the mosque in
question. It is also incorrect to say that the Ordinance in question was
in respect of the property in suit. The boundaries of the property
sought to be acquired by the first Ordinance were vague and in no case
the same covered the property in suit which comprised of the 23 plots
of land mentioned in the plaint. The northern boundary of the area
sought to be acquired was upto the road linking Hanuman Garhi with
Doraha Kuan while the property in suit includes plot No.238 also
which falls in the further north of the said road and as such the land of
plot No.238 (of Nazul Khasra) could not at all be said to have been
acquired by the aforesaid First ordinance. Similarly in the Southern
side the boundary of the acquired area extended upto Khasra plot
No.172 of the 2
nd
Second Settlement while the property in suit includes
land falling even beyond the said Khasra plot No.172 of the settlement
and Nazul Khasra plot Nos.603, 606, 607, 610, 619, 620,621 and 628
etc. are all situated in the further south of the said plot No.172 of the
2
nd
settlement. Similarly the western boundary of the so-called
acquired area mentioned in the first Ordinance extended upto the so-
called road in Nazul plot No.577, while the fact is that the said Nazul
plot No.577 was situated in the eastern side of the mosque in suit and
not in the western side and as such the western boundary of the
acquired area was absolutely wrong and vague and on that account
also the said First Ordinance was absolutely illegal, defective,
incomplete and void ab initio.
In the eastern boundary of the acquired property plot numbers,
mentioned in the First Ordinance, are 1105, 1106 and 1118 which do
189
not appear to be the plots of the Khasra of 2
nd
Settlement of Mauza
Ram Kot. In any case these plots numbers are not situated in the
eastern side of the property in suit as the plots numbers of the second
settlement existing in the eastern side of the property in suit are
164,165,166 and 167 etc. As such the eastern boundary of the so-
called acquired area was absolutely vague and unidentifiable. As such
the said First Ordinance was illegal, non est and void even on account
of the aforesaid ambiguity and vagueness.
5. That the contents of para 38 of the amended written statement are also
incorrect and hence denied as stated. It is incorrect to say that the said
First ordinance No.9 of 1990 was implemented in fact and spirit. In
any case the property in suit was not covered by the aforesaid
Ordinance No.9 of 1990 and as such there was no question of
implementation of the said Ordinance in respect of the property in suit.
It is also incorrect to say that the property in suit had ever vested in the
Central Government. As already stated above the Receiver of the
property had continued all through that period and he was never
relieved of his responsibility. Moreover the land of Nazul Khasra plots
nos.238, 603, 606, 607,610, 619, 620, 621 and 628 etc. was clearly
situated beyond the northern and southern boundaries mentioned in the
so-called acquired area under the aforesaid Ordinance and the
boundary of the eastern and western sides being non-existent,
incorrect, misleading and vague, the land of other plots in dispute
could also not be said to have been acquired by the aforesaid
Ordinance and as such the entire Ordinance was nothing but vague and
indefinite in respect of the property sought to be acquired and in that
view of the matter no portion of the property in suit could be said to
have been acquired by the aforesaid Ordinance and as such there was
no question of implementation of the said Ordinance in respect of
physical possession on the spot or even otherwise.
6. That the contents of para 39 of the amended written statement are also
incorrect and hence denied as stated. As already submitted above the
said first Ordinance could not be implemented at all on account of its
vagueness and uncertainty and other deficiencies regarding incomplete
190
details of the property sought to be acquired and as such there was no
question of its being implemented.
7. That the contents of para 40 of the amended written statement are also
incorrect and hence denied as stated. As the First Ordinance itself was
vague, incomplete and void ab initio no consequences could be said to
have been followed from the same. The averments made in the para
under reply are merely imaginary and baseless. Neither the property in
suit had ever vested in the Government and nor it was freed or
discharged as alleged in the para under reply and the orders of
injunction and appointment of Receiver etc. had continued to remain
in force as the Ordinance in question could not at all be said to have
applied to any portion of the property in suit much less the entire
property in suit. The suit in question as well as the orders passed
therein had all through remained operative. So also neither the
Commissioner could be legally said to be an authorised person in
respect of any portion of the property in suit much less the entire
property in suit and as such there was no question of his taking actual
possession of any portion of the property much less the entire property
in suit.
8. That the contents of para 41 of the amended written statement are also
incorrect and hence denied as stated. It is incorrect to say that the said
first Ordinance was withdrawn under pressure of anyone but the same
appears to have been withdrawn on account of the aforesaid
deficiencies and illegalities which were undoubtedly pointed out to the
then Prime Minister and his Cabinet colleagues and others. The
motive imputed to the Prime Minister is also incorrect and false.
9. That the contents of para 42 of the amended written statement are also
incorrect and hence denied as stated. Whatever was mentioned in the
Second Ordinance would be evident from the contents of the same and
legal effect of the same is a matter of argument regarding which
submissions will be made during the course of arguments.
10. That the contents of para 43 of the amended written statement are also
incorrect and hence denied as stated. The President of India had
absolute and full power to withdraw, repeal and revoke the said first
191
ordinance and to provide for the legal consequences of the same as are
mentioned in the 2
nd
Ordinance. As already mentioned above the
property in suit had never vested in the government and the same or at
least major portion of the same was not at all covered by the First
Ordinance and as such there was no question of vesting or divesting of
the said property which was not at all covered by the First Ordinance
and the property, if any, found to be covered by the First Ordinance
could very well be divested by the said 2
nd
Ordinance and its sta us
could be restored to its original position as if the first Ordinance had
not at all been issued.
11. That the contents of para 44 of the amended written statement are also
incorrect and hence denied as stated and the same being of
argumentative nature, they would be replied during the course of
argument. It is further submitted that the suit in question had not at all
abated by the First Ordinance and as such the interim orders passed
therein had also remained very much operative and in force in spite of
the First Ordinance.
12. That the contents of paras 45, 46, 47, 48, 49 and 50 of the amended
written statement are also incorrect and hence denied as stated. The
same contain legal pleas which have no basis but still the same will be
replied during the course of arguments.
13. That the contents of para 51 of the amended written statement are also
incorrect and hence denied as stated. As the suits and proceedings in
question had never abated even by the First Ordinance, the same had
always remained in existence and very much operative and in force. It
is further submitted that even if the First Ordinance had caused any
effect upon the said suit or orders, the said effect could very well be
undone by the 2
nd
Ordinance and the same was undone by the said 2
nd
Ordinance.
14. That the contents of para 52 of the amended written statement are also
incorrect and hence denied as stated. The averments of the para under
reply are argumentative in nature and the same will be replied during
the course of arguments.
15. That the contents of para 53 of the amended written statement are
192
absolutely incorrect and hence denied as stated. It is further submitted
that since allegations of malafide have been made against Sri
V.P.Singh and his Cabinet colleagues they were required to be
impleaded as parties to the instant suit if at all the said allegations are
considered worth trial although the plaintiffs maintain that the said
allegations are liable to be deleted or at least ignored as they are not at
all relevant for the purposes of the instant suit.
16. That the contents of paras 54, 55 and 56 of the amended written
statement are also incorrect and hence denied as stated and in reply
thereto it is submitted that whatever advice is given by the Council of
Ministers to the President of India, the same is not justiciable by the
Courts of law and in any case the Courts cannot go into the
circumstances which led to the enactment of any legislation and as
such the circumstances which had necessitated the issuance of the
second Ordinance cannot be investigated by this Hon'ble Court and the
reasoning given in the 2
nd
Ordinance is to be read as is mentioned
therein. It is also incorrect to say that the 2
nd
Ordinance hits the basic
structure of the Constitution of India.
17. That the contents of para 57, 58, 59 and 60 of the amended written
statement relate to the Union Government and as such the Union of
India is liable to be impleaded in order to reply the same.
The plaintiffs maintain that the said second Ordinance having
been legally promulgated on 23
rd
October, 1990 the same could remain
in force for six weeks without being laid before any House of the
Parliament and as such at least it had the effect of withdrawing the
First Ordinance and by virtue of the said Second Ordinance it will be
presumed that the First Ordinance had never been issued and had
never seen the light of the day.
18. That the contents of paras 61, 62, 63 and 64 of the amended written
statement are also incorrect and hence denied as stated and in reply
thereto it is submitted that the same are all argumentative in nature and
will be replied during the course of arguments.
19. That the contents of para 65 of the amended written statement are also
incorrect and hence denied as stated. There is no definite and
193
prescribed procedure for promulgating an Ordinance and the procedure
which can be said to have been prescribed under the Constitution of
India for issuance of an Ordinance has been followed and both the
Ordinances were issued by following the same procedure and as such
the Second Ordinance had the effect of nullifying and doing away with
the first Ordinance.
20. That the contents of para 66 of the amended written statement are also
incorrect and hence denied as stated and in reply thereto it is submitted
that the legal fiction of withdrawal makes the first Ordinance non-
existent and as such the first Ordinance will not be deemed to have
been issued and it never came into effect. The legal pleas will be
replied during the course of arguments.
21. That the contents of paras 67, 68, 69 and 70 of the amended written
statement are also incorrect and hence denied as stated and the same
being of argumentative nature will be replied during the course of
arguments.
It is, however, maintained that the instant suit had very much
remained pending all throughout and the same had never abated either
in part or in full and as such the same is liable to be tried.
Dated: Lucknow
18
th
November, 1991 Sd./- Secretary,
U.P.Sunni Central Board
of Waqfs, Lucknow
1. Sd./- illegible
2. Sd./-illegible
3. Sd./- illegible
Plaintiffs
Sd./- Z.Jilani
Advocate,
Counsel for the plaintiffs.

194
InthecourtofCivilJudge,Faizabad
12of1961
SunniCentralBoardvs.ShriGopalSinghVisharat
*******
08.08.62
Shri Mohd. Ayub, advocate for the plaintiffs states that the
propertyinsuitisthepropertyisdedicatedtoAlmightyGodandisa
MosquefortheuseoftheentireMuslimcommunityatlarge.Headds
thatShiasandSunnishavetheinterestinthesame.
Sdillegible Sd/illegible
Mohd.Ayub, CivilJudge,
Advocate 08.08.62
195
RS12/61
WS/28.8.63
28.8.63
SriMohd.AyubstatesthatthemosquebeinA,B,C,Dasshown
intheplaintmap(sketchmap)andthelandaroundA,B,C,Disgrave
yardsoftheMuslimsasshowninit.
Sd/illegible
28.8.63
28.8.63
SriMohd.Ayubstatesthattheplaintiffpleadsinthealternative
thatevenifthedefendantshadanyrightinthepropertyinsuit,the
samehavebeenextinguishedbylapseoftime.
Heclarifiesthatthesameinveststoadversepossessionandthe
rightsofthedefendantshaveextinguishedbyitandtheplaintiffhas
arguedtitlebyadversepossession.
Sd/illegible
28.8.63
196
Statement under Order 10 Rule 2 C.P.C. of Sri Zafaryab Jilani,
Advocate,fortheplaintiff.

Thatthe mosquewas situate onaNazul PlotNo.583of

theKhasraof1931ofMohallaKotRamchandraknownasRamkotat
Ayodhya.
Sd/illegible
SriZafaryabJilani
11.1.1996
197
STATEMENT OF SRI ZAFARYAB ZILANI, COUNSEL FOR
PLAINTIFF IN O.O.S. 4 OF 1989 MADE UNDER ORDER X RULE 2
C.P.C. ON 22.04.2009.
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
a described in Balmiki Ramayana or as existing today. It is, however,
disputed and denied that the site of Babri Masjid was the place of birth of
Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple
at the site of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the second half of Nineteenth
Century onwards is also not disputed. It is, however, denied and disputed
that Nirmohi Akhara was in existence and specially in Ayodhya in 16
th
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 22
nd
December, 1949.
Sd/-
Z. Jilani, Adv.
22.04.2009
The above statement
was recorded before us.
Sd/-
S. Rafat Alam
Sudhir Agarwal
D.V.Sharma
22.04.2009
198
STATEMENT OF SRI MUSTAQ AHMAD SIDDIQUI, COUNSEL FOR
PLAINTIFF IN O.O.S. 4 OF 1989 MADE UNDER ORDER X RULE 2
C.P.C. ON 22.04.2009.
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
a described in Balmiki Ramayana or as existing today. It is, however,
disputed and denied that the site of Babri Masjid was the place of birth of
Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple
at the site of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the second half of Nineteenth
Century onwards is also not disputed. It is, however, denied and disputed
that Nirmohi Akhara was in existence and specially in Ayodhya in 16
th
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 22
nd
December, 1949.
Sd/-
M.A. Siddiqui, Adv.
22.04.2009
The above statement
was recorded before us.
Sd/-
S. Rafat Alam
Sudhir Agarwal
D.V.Sharma
22.04.2009
199
STATEMENT OF SRI SYED IRFAN AHMAD, COUNSEL FOR
DEFENDANTS NO.6/1 AND 6/2 IN O.O.S. NO.3 OF 1989 MADE
UNDER ORDER X RULE 2 C.P.C. ON 22.4.2009.
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
a described in Balmiki Ramayana or as existing today. It is, however,
disputed and denied that the site of Babri Masjid was the place of birth of
Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple
at the site of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the second half of Nineteenth
Century onwards is also not disputed. It is, however, denied and disputed
that Nirmohi Akhara was in existence and specially in Ayodhya in 16
th
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 22
nd
December, 1949.
Sd/-
S. Irfan Ahmad, Adv.
22.04.2009
The above statement
was recorded before us.
Sd/-
S. Rafat Alam
Sudhir Agarwal
D.V.Sharma
22.04.2009
200
In The Court of Civil Judge Faizabad
Reg. Suit No. 12 of 61
Sunni Central Board and others
Vs
Gopal Singh and other
Statement U/ order X rule 2
C.P.C. of Plaintiff's Counsel
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In The Court of Civil Judge Faizabad
Reg. Suit No. 12 of 61
Sunni Central Board and others
Vs
Gopal Singh and other
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In The Court of Civil Judge Faizabad
Reg. Suit No. 12 of 61
Sunni Central Board and others
Vs
Gopal Singh and other
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In The Court of Civil Judge Faizabad
Reg. Suit No. 12 of 61
Sunni Central Board and others
Vs
Gopal Singh and other
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In The Court of Civil Judge Faizabad
Reg. Suit No. 12 of 61
Sunni Central Board and others
Vs
Gopal Singh and other
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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH: LUCKNOW
OTHER ORIGINAL SUIT NO.4 OF 1989
(Regular Suit No.12 of 1961)
Sunni Central Board of Waqfs and others .Plaintiffs
Versus
Gopal Singh Visharad and others ..Defendants
Issues at it stands now:
Issue No.1:-
Whether the building in question described as mosque in the sketch
map attached to the plaint (hereinafter referred to as the building) 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 Babar as alleged by the
plaintiffs or by Meer Baqi as alleged by defendant No.13 ?
(b) Whether the building had been constructed on the site o an alleged
Hindu temple after demolishing the same as alleged by defendant no.13 ? If
so, its effect ?
Issue No.1-A:-
Whether the land adjoining the building on the east, north and south
sides, denoted by letters EFGH on the sketch map, was an ancient graveyard
and mosque as alleged in para 2 of the plaint ? If so, its effect ?
deleted vide courts order
dated 23.2.96
Issue no.1-B (a)
Whether the building existed at Nazul plot no.583 of the Khasra of the
year 1931 of Mohalla kot Ram Chandra known as Ram kot, city Ayodhya
(Nazul estate ) Ayodhya ? If so its effect thereon)
Issue no.1-B (b):-
Whether the building stood dedicated to almighty God as alleged by
the plaintiffs ?
207
Issue no.1-B (c):-
Whether the building had been used by the members of the Muslim
community for offering prayers from times immemorial ? If so, its effect ?
Issue no.1-B (d):-
Whether the alleged graveyard has been used by the members of
Muslim community for burying the dead bodies of the members of the
Muslim community ? If so, its effect ?
Issue 1 B(d) deleted vide
court order dated 23.2.96
Issue No.2:-
Whether the plaintiffs were in possession of the property in suit upto
1949 and were dispossessed from the same in 1949 as alleged in the plaint ?
Issue No.3:-
Is the suit within time ?
Issue No.4:-
Whether the Hindus in general and the devotees of Bhagwan Sri Ram
in particular have perfected right of prayers at the site by adverse and
continuous possession as of right for more than the statutory period of time
by way of prescription as alleged by the defendants ?
Issue No.5 (a):-
Are the defendants estopped from challenging the character of
property in suit as a waqf under the administration of plaintiff No.1 in view
of the provision of 5 (3) of U.P. Act 13 of 1936 ? (This issue has already
been decided in the negative vide order dated 21.4.1966 by the learned Civil
Judge)
5 (b) Has the said Act no application to the right of Hindus in general and
defendants in particular to the right of their worship ?
5(c) Were the proceedings under the said Act conclusive ? (This issue has
208
already been decided in the negative vide order dt. 21.4.1966 by the learned
civil Judge.)
(d) Are the said provision of Act XIII of 1936 ultra-vires as alleged in
written statement ?
(This issue was not pressed by counsel for the defendants, hence not
answered by the learned Civil Judge, vide his order dated 21.4.1966).
5(e) Whether in view of the findings recorded by the learned Civil Judge on
21.4.1966 on issue no.17 to the effect that, No valid notification under
section 5(1) of the Muslim Waqf Act (No. XIII of 1936) was ever made in
respect of the property in dispute, the plaintiff Sunni Central Board of Waqf
has no right to maintain the present suit ?
5(f) Whether in view of the aforesaid finding, the suit is barred on account
of lack of jurisdiction and limitation as it was filed after the commencement
of the U.P. Muslim Waqf Act, 1960 ?
Issue No.6:-
Whether the present suit is a representative suit, plaintiffs representing
the interest of the Muslims and defendants representing the interest of the
Hindus?
Issue No.7:-
7(a) Whether Mahant Reghubar Dass, plaintiff of Suit No.61/280 of 1885
had sued on behalf of Janma-Sthan and whole body of persons interested in
Janma-Sthan ?
7(b) Whether Mohammad Asghar was the Mutwalli of alleged Babri
Masjid and did he contest the suit for and on behalf of any such mosque ?
7(c) Whether in view of the judgment in the said suit, the members of the
Hindu community, including the contesting defendants, are estpopped from
denying the title of the Muslim community, including the plaintiffs of the
present suit, to the property in dispute ? if so, its effect ?
209
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 that suit ? If so, its
effect ?
Issue No.8:-
Does the judgment of Case No.6/281 of 1881, Mahant Raghubar Dass
Vs. Secretary of State and others, operate as res judicate against the
defendants in suit ?
Issue No.9:-
Whether the plaintiffs served valid notices under Sec. 80 C.P.C.
(Deleted vide order dated May 22/25. 1990).
Issue No.10:-
Whether the plaintiffs have perfected their rights by adverse
possession as alleged in the plaint ?
Issue No.11:-
Is the property in suit the site of Janam Bhumi of Sri Ram Chandraji ?
Issue No.12:-
Whether idols and objects of worship were placed inside the building
in the night intervening 22
nd
and 23
rd
December, 1949 as alleged in paragraph
11 of the plaint or hey have been in existence there since before ? In either
case, effect ?
Issue No.13:-
Whether the Hindus in general and defendants in particular had the
right to worship the Charans and Sita Rasoi and other idols and other
objects of worship, if any, existing in or upon the property in suit?
210
Issue No.14:-
Have the Hindus been worshipping the place in dispute as Sri Ram
Janam Bhumi or Janam Asthan and have been visiting it as a sacred place of
pilgrimage as of right since times immemorial ? If so, its effect ?
Issue No.15:-
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 Hinus
in general ? If so, its effect ?
Issue No.16:-
To what relief, if any, are the plaintiffs or any of them entitled ?
Issue No.17:-
Whether a valid notification under section 5(1) of the U.P. Muslim
Waqf Act No. XIII of 1936 relating to the property in suit was ever done ? I
so, its effect ?
(This issue has already been decided by the learned Civil Judge by order
dated 21.4.1966).
Issue No.18:-
What is the effect of the judgment of their lordships of the Supreme
Court in Gulam Abbas and others Vs. State of U.P. and others, A.I.R. 1981
Supreme Court 2198 on the finding of the learned Civil Judge recorded on
21
st
April, 1966 on issue no.17 ?
Issue No.19(a):-
Whether ever after construction of the building in suit deities of
Bhagwan Sri ram Virajman and the Asthan Sri Ram Janam Bhumi continued
211
to exist on the property in suit as alleged on behalf of defendant No.13 and
the said places continued to be visisted by devotees for purposes of
worship ? If so, whether the property in dispute continued to vest in the said
deities ?
Issue No.19(b):-
Whether the building was land-locked and cannot be reached except
by passing through places of Hindu worship ? If so, its effect ?
Issue No.19 (c):-
Whether any portion of the property in suit was used as a place of
worship by the Hindus immediately prior to the construction of the building
in question ? If the finding is in the affirmative whether no mosque could
come into existence in view of the Islamic tenets, at the place in dispute ?
Issue No.19 (D):-
Whether the building in question could not be a mosque under the
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 legaly be a mosque as on
plaintiffs own showing it was surrounded by a grave-yard 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.
Issue No.20 (a):-
212
Whether the Waqf in question cannot be a Sunni Waqf as the building
was not allegedly constructed by a Sunni Mohammedan but was allegedly
constructed by Meer Baqi who was allegedly a Shia Muslim and the alleged
Mutwalis were allegedly Shia Mohammedans ? If so, its effect ?
Issue No.20 (b):-
Whether there was a Mutwalli of the alleged Waqf and whether the
alleged Mutwalli not having joined in the suit, the suit is not maintainable so
far as it relates to relief for possession.
Issue No.21:-
Whether the suit is bad for non-joinder of alleged deities?
Issue No.22:-
Whether the suit is liable to be dismissed with special costs ?
Issue No.23:-
If the Wakf Board is an instrumentality of state ? If so, whether the
said Board can file a suit against the state itself ?
Issue No.24:-
If the wakf Board is state under Article 12 of the constitution ? If so,
the said Board being the state can file any suit in representative capacity
sponsering the case of particular community and against the interest of
another community).
Issue No.25:-
Whether demolition of the disputed structure as claimed by the
plaintiff it can still be called a mosque and if not whether the claim of the
plaintiffs is liable to be dismissed as no longer maintainable ?
213
Issue No.26:-
Whether Muslims can use the open site as mosque to offer prayer
when structure which stood thereon has been demolished ?
Issue No.27:-
Whether the outer court yard contained Ram Chabutra Bhandar and
Sita-Rasoi ? If so whether they were also demolished on 6.12.1992 along
with the main temple ?
Issue No.28:-
Whether the defendant No.3 has ever been in possession of the
disputed site and the plaintiffs were never in its possession ?
214
IN THE COURT OF THE CIVIL JUDGE FAIZABAD.
PLAINT OF ORIGINAL SUIT.
(Under order VII, Rule 1, of the Code of Civil Procedure, 1908)
O.O.S. No. 5 of 1989 (R.S. No. 236 -89
1. Bhagwan Sri Rama Virajman at Sri Rama Janma Bhumi, Ayodhya,
also called Bhagwan Sri Rmaa Lala Virajman, represented by next
friend, Sri Deoki Nandan Agrawala, Senior Advocate and retired
Judge High Court, 56 Dilkusha New Katra, Allahabad.
2. Asthan Sri Rama Janma Bhumi, Ayodhya, represented by next friend,
Sri Deoki Nandan Agarwala, Senior Advocate and retired Judge High
Court, 56, Dilkusha, New Katra, Allahabad.
3. Sri Deoki Nandan Agarwala, aged about 68 years, son of late Sri M.L.
Agarwala, Senior Advocate and retired Judge, High Court, resident of
56, Dilkusha, New Katra, Allahabad. ...Plaintiffs.
Versus
1. Sri rajendra Singh, adult, son of Late Sri Gopal Singh Visharad, at
Present residing at Gonda, care of the State Bank of India, Gonda
Branch Gonda.
2. Param Hans Mahant Ram Chandra Das of Digambar Akhara,
Ayodhya.
3. Nirmohi Akhara Mohalla Ram Ghat, Ayodhya, through its present
Mahant Sri Ram Kewal Das, Chela Gopal Das, resident of Nirmohi
Akhara Mohalla Ram Ghat, Ayodhya.
Substituted with permission of Court vide order dated
SD./- 1.9.95
Mahant Jagannath Das aged about 54 years, Chela of Vaishnav Das
Nirmohi resident of Mohalla Ram Ghat Nirmohi Bazar Pargana Haveli
Awadh, Ayodhya, District Faizabad.
4. Sunni Central Board of Waqfs, U.P. having its officer at Moti Lal Bose
Road, Lucknow.
5. Sri Mohammad Hashim, Adult, son of the Sri Karim Bux, resident of
Mohalla sutahti, Ayodhya.
6. Sri Mohammad Ahmad, Adult son of Sri Ghulam Hasan, resident of
Mohalla Rakabganj, Faizabad.
7. State of Uttar Pradesh, through the Secretary, Home Department, Civil
Secretariat, Lucknow.
8. The Collector & District Magistrate, Faizabad.
215
9. The City Magistrate, Faizabad.
10. The Senior Superintendent of Police, Faizabad.
11. The President, All India Hindu Mahasabha, New Delhi.
12. The President, All India Arya Samaj, Dewan Hall, Delhi.
13. The President, All India Sanatam Dharma Sabha Delhi.
14. Sri Dharam Das Adult, Chela Baba Abhiram Das, resident of
Hanuman Garhi, Ayodhya.
15. Sri Pundarik Misra, Adult son of Sri Raj Narain Misra, resident of
Baham pur Sarai, Rakabganj, Faizabad.
16. Sri Ram Dayal Saran Adult, Chela Ram Lakhan Saran, resident of
Ramcharit Manas Bhavan, Mohalla Ramkot, Ayodhya.
17. Sri Ramesh Chandra Tripathi Adult, sonof Sri Parash Ram Tripathi,
resident of Village Bhagwan Patti, Pargana Minjhaura, Tehsil
Akbarpur, District Faizabad.
Deleted vide order dated Sd./-20.9.1989
18. Mahant ganga Das Adult Chela Sarju Das, resident of Mandir Lalta
Prasad, Ayodhya.
19. Swami Govindacharya Manas Artand, Adult, son of Sri Balbhadar,
alias Jhallu, resident of Ayodhya.
20. Sri Umesh Chandra Pandey, Adult, son of Sri Uma Shankar Pandey,
Advocate, resident of Ranopali, Ayodhya.
21. Sri Rama Janma Bhumi Nyas, a Trust, having its officer at Sankat
Mochan Ashram, Sri Hanuman Mandir, Rama Krishan Puram, Sector
VI, New Delhi, through Sri Ashok Singhal, Managing Trustee.
22. Shia Central Board of Waqfs, U.P., Lucknow.
23. Sri Javvad Husain, Adult, resident of Village Sahanwa, P.O. Darshan
Nagar, District Faizabad.
24. Prince Anjum Quder, Preestrict, All India Shia conference, Qaomi
Ghar, Nadan Mahal Road, Lucknow.
25. All India Shia Conference, through Sri S. Mohammad Hasnain Abidi,
Honorary General Secretary, Qaomi Ghar, Nadan Mahal Road,
216
Lucknow.
*26. Hafiz Mohd. Siddiqui, aged about 46 years son of late Haji
Mohd. Ibrahim, resident of Lalbagh Moradabad. General Secretary,
Jamaitul Ulema Hind U.P. Jamait Building B.N. Verma Road,
Kutchery Road, Lucknow.
*27. Vakeeluddin aged about 55 years, son of Ismail, resident of Madarpur
Pergana and Tehsil Tanda District Faizabad.
..Defendants
* Amended vide order dated 15.4.92
read with order dated 21.4.92. Sd./-
SUIT FOR DECLARATION AND INJUNCTION
1. That the plaintiffs Nos. 1 and 2, namely, Bhaagwan Sri Rama
Virajman at Sri Rama Janma Bhumi, Ayodhya, also called Sri Rama Lala
Virajman, and the Asthan Sri Rama Janma bhumi, Ayodhya, with the other
Idols and places of worship situate thereat, are juridical persons with
Bhagwan Sri Rama as the presiding Deity of the place. The Plaintiffs No. 3
is a Vaishnva Hindu, and seeks to represent the Deity and the Asthan as a
next friend.
2. That the place Sri Rama Janma Bhumi is too well known at Ayodhya
to need any description for purposes of identification of the subject matter
of dispute in this plaint. However, for greater precision, two site plans of the
building premises and of the adjacent area known as Sri Rama Janma
Bhumi, prepared by Sri Shiv Shankar Lal pleader, in the discharge of his
duty as a commissioner appointed by the court of Civil Judge, Faizabad, in
Suit No.2 of 1950: Sri Gopal Singh Visharad Versus Sri Zahur Ahmad and
others: along with his Report dated 25.5.1950, are being annexed to this
plaint and made part of it as Annexures I, II and III, respectively.
3. That the said suit No. 2 of 1950 was filed on 16.1.1950, by Sri Gopal
Singh Visharad against (1) Zahoor Ahmad, (2) Haji Pheku, (3) Mohammad
Faiq, (4) Mohammad Shami, (5) Mohammad Achhan Mian, (6) Uttar
Pradesh State, (7) Deputy Commissioner, Faizabad, (8) City Magistrate,
Faizabad, and (9) Superintendent of Police, Faizabad. The plaintiff of that
suit died recently and his name has been substituted by that of his son, who
217
has been impleaded as Defendant No. 1, in this suit. Of the defendants, the
first five Muslim individuals are dead and their names have been struck off
under the orders of the Court. They have, therefore, not been impleaded as
defendants in this suit. The defendants Nos. 6 to 9 of that suit have been
impleaded as defendants Nos. 7 to 10, respectively, in this suit also.
4. That the relief claimed in that suit (No. 2 of 1950) was a declaration
that the Plaintiff was entitled to perform the Puja and to have Darshan of Sri
Baagwan Ram Chandra and others Virajman at Asthan Janma Bhumi
without any hindrance, dispute or interruption, and that the Defendants had
no right to interfere in the plaintiffs exercise of his said rights. A permanent
injunction restraining the Defendants and their successors from ever
removing the Idols of Sri Bhagwan Ram Chandra and others Virajman at
Asthan Janma Bhumi, from the place where they were, or closing the
entrance gate or other passages of ingress and egress, and from interfering or
disturbing the Puja or Darshan in any manner whatsoever, was also claimed.
5. That an identical suit, being Suit No.25 of 1950, was filed a few
months later, after serving a notice under section 80 of the Code of Civil
Procedure, 1908, by Paramhans Ramchandra Das, who is now the Mahant of
Digambar Akhara, Ayodhya. He has been impleaded as defendant No.2 in
this Suit. The same five Muslim individuals were Defendants Nos. 1 to 5 in
that suit, and on their death their names were also struck off under the orders
of the Court. Of the remaining Defendants of suit No.2 of 1950, defendants
Nos. 8 and 9, namely, the City Magistrate and the Superintendent of Police,
Faizabad, were not impleaded in Suit No. 25 of 1950 and the only surviving
defendants therein are the Uttar Pradesh State and the Deputy Commissioner,
Faizabad, who have been impleaded as defendants Nos. 7 and 8,
respectively, in this Suit.
6. That a third suit being suit No. 26 of 1959 was thereafter filed in the
Court of the Civil Judge, Faizabad, by the Nirmohi Akhara, Ayodhya, who
has been impleaded as defendant No.3 in this suit, claiming the relief of
removal of Babu Priya Dutt Ram, Defendant No.1 thereto, from the
management and charge of the temple of Janma Bhumi with the idol of Lord
Ram Chandra and others installed therein, at Asthan Janma Bhumi, whereto
he had been appointed as Receiver in the year 1950 by the City Magistrate,
218
Faizabad, in a proceeding under Section 145 of the Code of Criminal
Procedure, 1898. The other Defendants were (2) State of Uttar Pradesh, (3)
Deputy Commissioner, Faizabad, (4) City Magistrate, Faizabad, (5)
Superintendent of Police, Faizabad, (6) Haji Phekku, (7) Mohammad Faiq,
and (8) Mohammad Achhan Mian. The said Defendants Nos. 2,3,4 and 5,
are respectively Defendants Nos. 7,8,9 and 10 in this suit. The other
Defendants have died and their legal representatives have not been brought
on the record obviously because the cause of action did not survive against
them.
7. That a fourth suit, being suit no. 12 of 1961, was thereafter filed by the
Sunni Central Board of Waqfs, U.P., and 8 other Sunni Muslims on
18.12.1961 in the Court of the Civil Judge, Faizabad. The reliefs claimed
were (a) A declaration that the property indicated by the letters A B C D in
the sketch map annexed to the plaint is a public mosque commonly known
as 'Babri Masjid', and that the land adjoining the mosque shown in the sketch
map by letters E F G H is a public Muslim grave-yard, and (b) for delivery
of possession of the mosque and grave yard in suit by removal of the idols
and other articles which the Hindus may have placed in the mosque as
objects of their worship. The Sunni Central Board of Waqfs, U.P. is being
impleaded as Defendant No. 4 in this suit, and of the remaining plaintiffs of
that suit, the only surviving plaintiffs No.7 and 9 are being impleaded as
Defendants No. 5 and 6 hereto. Of the Defendants to that suit, the legal
representatives of Defendants No. 1, 13, and 15, who have been impleaded
therein, are being impleaded as Defendants No. 1.14 and 16 respectively in
this suit. The surviving Defendants No. 2,3, 5.6,7,8,10,11,12, 14,17,18 and
19 of that suit, are being impleaded as Defendants No.
2,3,7,8,9,10,11,12,13,15,17,18 and 19 respectively, herein. Remaining
Defendants No. 4 and 16 have died and have been left out.
8. That it needs to be stated that by an order dated 8.8.1962 of the Court
of the Civil Judge, Faizabad, in Suit No. 12 of 1961, the plaintiffs thereof
were permitted to sue, on behalf of the entire Muslim community, the
Defendants No. 1 to 4 therein as representatives of, and for the benefit of the
entire Hindu community. Of them, Defendant No.4 has since died.
Defendants 10 to 19 were impleaded therein later, on their own request of
219
themselves defendant No. 16 has since died, their legal representatives have
not been impleaded in that suit. They have, therefore, been left out in this
suit.
9. That it also needs to be stated that by an order dated 4.8.1951, suits
No. 2 and 25 of 1950 were consolidated together, and by an order dated
6.1.1964 all the four suits were consolidated and Suit No. 12 of 1961 was
made the leading case.
(Amended vide order dated 05.02.92)
10. That it must also be stated that in suit No. 2 of 1950, an ad-interim
injunction was issued on 16.1.1950, in the terms prayed for but on an
application made by the Defendant District Magistrate, the ad-interim
injunction was modified on 19.1.1950 to read as under-the 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 aforesaid ad-interim injunction was confirmed by order dated
3.3.1951, after hearing the parties, in the following terms- The interim
injunction order dated 16.1.50 as modified on 19.1.50 shall remain in force
until the suit is disposed of.
A first appeal from that order, being F.A.F.O. No. 154 of 1951, in the
High Court at Allahabad, was dismissed by judgement dated 26.4. 1955.
The interim injunction continues to remain in force, ever since down to the
present day.
11. That the issues were framed in all the four suits more than 25 years
ago, but their hearing has not yet commenced. The Sewa and Puja of the
plaintiff Deities has in the meanwhile been looked after by a Receiver, to
begin with by Babu Priya Dutt Ram, appointed by the City Magistrate in the
proceedings under Section 145 of the Code of Criminal Procedure, 1898, and
later by Sri K.K. Ram Verma, who continued to function as such from 1970
onwards pending the passing of final orders by the Civil Court, in suit No. 12
of 1961. He was discharged by the Court of the IIIrd Additional District
Judge, Faizabad, by order dated 25.8.1988. Sri L.P.N. Singh was appointed
Receiver. He functioned upto 22.11.1988, when by an order of that date Sri
Jamuna Prasad Singh was appointed as Receiver.
220
12. The when issues were framed, and when the suits were consolidated,
more than twenty five years ago, the expectation was that the suits would be
disposed of soon thereafter. But for one reason or another, they continued to
remain pending, and still continue to remain pending, with a dim prospect of
their immediate hearing. Although the sewa and puja of the plaintiff Deities
was being conducted regularly and properly yet Darshan was allowed only
from behind a barrier. It is true that in the Temples in the Southern parts of
India, the devotees are not permitted to go near the Deities for their Darshan
and Puja and must do so from behing a barrier, but that is not the custom in
the Northern parts of India, and it was hoped that after the decision of the
suits, the devotees would be able to have a closer Darshan of the Plaintiff
Deity No.1.
13. That because of the indefinite delay in the disposal of the said suits, on
an application made by Defendant No. 20, herein, in the interest of the
worshippers, with the prayer for allowing a closer Darshan the Court of the
Munsif Sadar, Faizabad, refused to pass orders but on appeal there from, the
court of the District Judge, Faizabad by an order dated 1.2.1986, directed the
authorities to remove the barrier by opening the locks on the gates O and P
on the map, which is annexed hereto as Annexure No.1.
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
in which the Receiver has been acting. It is believed that a large portion of
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, the 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 Janma Bhumi, Ayodhya.
15. That in order to improve the Temple administration and to reconstruct
a new Temple at Sri Rama Janma bhumi, the sacred duty of managing and
performing the sewa, archana and puja of the plaintiff Deities, and the task of
protecting, renovating, reconstructing and developing the Temple premises,
in short, of managing all their estate and all their affairs, was entrusted, by
unanimous public opinion, to jagadaguru Ramanandacharya Swami
221
Shivaaramacharaya of Kashi, who was the head of the Ramananda
Sampradaya to which most of the Sadhus and Vairagis of Ayodhya belong.
The Trust so reposed in him by the Hindu public was formally declared by
him by Deed of Trust dated December 18, 1985, and registered the same day
with the Sub Registrar, S.D. No.1, at Delhi, Vide No. 16510 in Additional
Book No.4, Volume 1156, at pages 64 to 69. A copy of the said Deed of
Trust is annexed to and made part of this plaint as Annexure IV.
16. That by the said Trust Deed, apart from declaring himself to be the
First Trustee for life and the Pramuk and Dharmakarta of the Trust, which
was named Sri Rama Janma Bhumi Nyas by Jagadguru Ramanandacharya
Swami Shivaramacharya, the following others were appointed as Trustees
for life, namely :-
(2) Jagadguru Varishtha Shankaracharya Swami Shantananda
Saraswati Ji Maharaj of Jyotishpeetha, Prayag.
(3) Gorakshapeethadhishwar Mahant Avedyanath Ji Maharaj of
Gorakhpur.
(4) Mahant Nrityagopal Das Ji Maharaj of Maniram Chhaoni,
Ayodhya.
(5) Paramhans Mahant Ramchandra Das Ji Maharaj of Digambar
Akhara, Ayodhya, now the acting Pramukh and Dharmakarta,
Defendant No. 2.
(6) Santpravar Prabhu Dutt Ji Brahmachari of Sankirtan Bhawan, Jhusi,
Prayag.
(7) Mahant Ram Kewal Das Ji Maharaj of Nirmohi Akhara, Ayodhya
which is Defendant No. 3.
(8) Sri Vishnu Hari Dalmia, Tees Janwary Marg, New Delhi.
(9) Sri Ashok Singhal, 16/10 Hashimpur Road, Allahabad.
(10) Sri Dau Dayal Khanna, Nanda Vihar, Civil Lines, Moradabad. Of
these Trustees, Sri Vishnu Hari Dalmia was named the Treasurer and Sri
Ashok Singhal the Managing Trustee. In addition to the said 10 Trustees,
power was given to the Marga Darshak Mandal of the Vishva Hindu
Parishad to nominate 4 Trustees who are Mahatmas from different parts of
India, and to its Governing Council to nominate 10 Trustees from among
eminent Hindu citizens of India, and in exercise of the said power the
222
following further Trustees have been appointed by the Vishva Hinduu
Parishad namely:-
A. From among the Mahatmas:
(1) Jagadguru Madhwacharya Sri Vishwshtirtha Ji Maharaj of Udipi,
Karnataka.
(2) Bhante Gyan Jagat, Budhist Bhikshu of Bodh Gaya, Bihar.
(3) Dr. Ramvilas Das Ji Vedanti of Ayodhya.
(4) Jadadguru Ramanujacharya Swami Purushottamacharya Ji
Maharaj, Ayodhya.
B. From among Hindu citizens of India:-
(1) Sri Justice Shiv Nath Katju, Retired Judge, High Court, Allahabad.
(2) Sri Justice Deoki Nandan Agarwala, Retired Judge Rign Court,
Allahabad, by whom this plaint is being filed as the next friend.
Of the plaintiff Deities No. 1 and 2, and as plaintiff No.3.
(3) Rajmata Srimant Vijae Raje Scindhia of Gwalior.
(4) Sri Shrish Chandra Dikshit, Retired Director General of Police,
Uttar Pradesh, Lucknow.
(5) Sri Badri Prasad Toshniwal, Industrialist, New Delhi. The
Trustees so appointed hold office for 4 years, and half their number
retire by rotation once every two years, but are eligible for
reappointment.
16-A. (1)That Jagadguru Ramanandacharya Swami Shivaramacharya of
Kashi, who was the Pramukh and Dharmakarta of the Nayas had
died and after him Paramhans Mahant Ramachandra Dasji
Maharaj of Digambar Akhara, Ayodhya has been acting as the
Pramukh and Dharmakarta of the Nyas.
(Added with permission of Court vide order dated 07.05.92 on C.M.
No. 68 (o) of 1992).
(2) That Sant Pravan Prabhu Duttji Brahamachari, of Sankirtan
Bhawan Jhusi, died after the institution of the suit.
(3) That the two vacancies among the trustees from among the
Mahatmas have been filled up, according to the deed of Trust, by
the appointment of the following as trustees of the Nyas, namely-
223
(i) Veetraag Sant Paramhans Pujya Swami Vamdeoji Maharaj, of Anand
Vrindavan, Vrindavan Mathura.
(ii) Mahant Dharam Dasji Maharaj of Sankat Mochan Mandir,
Faizabad Road Ayodhya.
(4) That there were 5 vacancies among the Trustees to be appointed from
among the eminent Hindu citizens of India, when the suit was filed. They
have since been filled up, according to the deed of Trust, by the appointment
of the following as Trustees of the Nyas, namely:-
(i) Sri Moropant Pingle, Dr. Hedgewar Bhawan Mahal Nagpur.
(ii) Sri Brahma Deoji, Sankat Mochan, Hanuman Mandir, Sector VI,
Ramkrishna Puram New Delhi.
(iii) Sri Surya Krishnaji, Sankar Mochan, Hanuman Mandir Sector VI.
Ramkrishnapuram, New Delhi and
(iv) Sri Yashuvant Bhai Bhatt, Sri Rama Janma Bhumi Nyas Karyalaya,
Ramkot, Ayodhya.
(Amendment made with the oral permission of the Court on
25.08.1991).
17. That Sri Rama Janma Bhumi Nyas is directly interested in the seva,
puja and other affairs of the Plaintiff Deities. It is being impleaded as
Defendant No. 21 in this Suit.
18. That although the aforesaid suits have been pending trial for such an
extraordinarily long number of years, they are inadequate and cannot result
in a settlement of the dispute which led to their institution or the problems
arising there from, inasmuch 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
224
buildings and other things appurtenant thereto. The Plaintiffs have been
accordingly advised to file a fresh suit of their own.
19. That it is manifestly established by public records of unimpeachable
authority that the premises in dispute is the place where Maryada
Purushottam Sri Ramchandra Ji Maharaj was born as the son of Maharaja
Dashrath of the solar Dynasty, which according to the tradition and the faith
of the devotees of Bhagwan Sri Rama is the place where HE manifested
HIMSELF in human form as an incarnation of BHAGWAN VISHNU. The
place has since ever been called Sri Rama Janma Bhumi by all and sundry
through the ages.
20. That the place itself, or the ASTHAN SRI RAMA JANMA BHUMI,
as it has come to be known, has been an object of worship as a Deity by the
devotees of BHAGWAN SRI RAMA, as it personifies the spirit of the
Divine worshipped in the form of SRI RAMA LALA or Lord RAMA the
child. The Asthan was thus Deified and has had a juridical personality of its
own even before the construction of a Temple building or the installation of
the idol of Bhagwan Sri Rama thereat.
21. That it may be here stated that the Hindus do not worship the stone or
the metal shaped into the form of their ISHTA DEVATA, or the stone of
SALIGRAM which has no particular shape at all. They worship the Divine,
which has no quality or shape or form, but can be known only when it
manifests ITSELF in the form of an incarnation, and therefore, adopt the
form of his incarnation as their ISHTA DEVA. For some even that is
unnecessary. They can meditate upon the formless and the shapeless
DIVINE and aspire for a knowledge of him through his grace. It is the
SPIRIT of the DIVINE which is worshipped by most Hindus, and not its
material form or shape in an idol. This SPIRIT of the DIVINE in an idol is
invoked by the ritual of pranapratishtha. The SPIRIT of the DIVINE is
indestructible and ever remains present everywhere at all times for any one
to invoke it in any shape or form in accord with his own aspiration.
Different persons are at different levels of realisation of the REALITY.
Some find it helpful to pursue a particular set of rituals for their spiritual
uplift. A large section of Hindus follow BHAKTI MARGA, and
BHAGWAN SRI RAMA or BHAGWAN SRI KRISHNA is their ISHTA
225
DEVA.
22. That according to the faith of the devotees of BHAGVAN SRI RAMA
LALA, or Lord Rama the Child, it is the Spirit of BHAGWAN SRI RAMA
as the Divine Child which resides at Asthan Sri Rama Janma Bhumi and can
be experienced by those who pray there and invoke that Spirit for their
spiritual uplift. That Spirit is the Deity. An idol is not necessary for
invoking the Divine Spirit. Another example of such a Deity is that of
KEDARNATH. The Temple of KEDARNATH has no Idol in it. It is the
undulating surface of stone which is worshipped there as the Deity. Still
another example of such a Deity is the Vishnupad Temple at Gaya, That too
has no Idol in it. The place which is believed to have born the footprints of
Bhagwan Vishnu is worshipped as Deity. Similarly, at Ayodhya, the very
Asthan Sri Ram Janma Bhumi is worshipped as a Deity through such
symbols of the Divine Spirit as the Charan and the Sita Rasoi. The place is a
Deity. It has existed in this immovable form through the ages, and has ever
been a juridical person. The actual and continuous performance of Puja of
such an immovable Deity by its devotees is not essential for its existence as a
Deity. The Deity continues to exist so long as the place exists, and being
land, it is indestructible. Thus, Asthan Sri Rama Janma Bhumi is an
indestructible and immovable Deity who has continued to exist throughout
the ages.
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 Baber'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 prevent
the completion of the mosque. To this day it has no minarets, and no place
for storage of 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 Baber's time by Mir Baqi, was in the possession and control of
226
Hindus at that time. According to the 1928 Edition of the Fyzabad Gazetteer
published by the Government Press, U.P. (at page 179)--Ayodhya is pre-
eminently a city of temples...................................... It is locally affirmed that
at the time of the Musalman conquest there were three important Hindu
shrines at Ayodhya and little else. These were the Janmasthan temple, the
Swargaddwar and the Treta-ka-Thakur, and each was successively made the
object of attention of different Musalman rulers. The Janmasthan was in
Ramkot and marked the birthplace of Rama. 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 devices. Their length is from seven
to eight feet, and the shape square at the base, centre and capital, the rest
being round or octagonal. The mosque has two inscriptions, one on the
outside and the other on the pulpit, both are in persian and bear the date 935
Hijri.... and again according to the same Gazetteer (at page 180):- This
desecration of the most sacred spot in the city caused great bitterness
between Hindus and Musalmans. On many occasions the feeling led to
bloodshed, and in 1855 an open fight occurred, the Musalmans occupying
the Janmasthan in force and then making a desperate assault on the Hanuman
Garhi. They charged up the steps of the temple, but were driven back with
considerable loss. The Hindus then made counter-attack and stormed the
Janmasthan, at the gate of which seventy-five Musalmans were buried, the
spot being known as the Ganj Shahidan or the martyr's resting place. Several
of the king's regiments were present, but their orders were not to interfere.
Shortly afterwards Maulvi Amir Ali of Amethi in Lucknow organised a
regular expedition with the object of destroying the Hanuman Garhi, but he
and his forces were stopped in the Barabanki district. (Gazetteer of
Barabanki, P. 168). It is said that upto this time both Hindus and Musalmans
used to worship in the same building; but since the mutiny an outer
enclosure has been put up in front of the mosque and the Hindus, who are
forbidden access to the inner yard, make their offerings on a platform which
they have raised in the outer one.
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24. That such a structure raised by the force of arms on land belonging to
the Plaintiff Deities, after destroying the ancient Temple situate thereat, with
its materials including the Kasauti pillars with figures of Hindu gods carved
thereon, could not be mosque and did not become one in spite of the
attempts to treat it as a mosque during the British rule after the annexation of
Avadh. Some salient points with regard thereto are noted below.
(A) According to the Koran, ALLAH spoke to the Prophet thus-
And fight for the religion of GOD against those who fight against you; but
transgress not by attacking them first, for GOD loved not transgressors. And
kill them wherever ye find them; and turn them out of that whereof they have
dispossessed you; for temptation to idolatory is more grievous than
slaughter. Yet fight not against them in the holy temple, until they attack you
therein;............
(B) According to all the Muslim authorities and precedents and the
decided cases also, ALLAH never accepts a dedication of property which
does not belong to the Waqif that is, the person who purports to dedicate
property to ALLAH for purposes recognized as pious or charitable, as waqf
under the Muslim law. By his acts of trespass and violence for raising a
mosque on the site of the temple after destroying it by force, Mir Baqui
committed a highly un-Islamic act. His attempt to convert the Temple into a
mosque did not, therefore, create a valid dedication of property to Allah,
whether in fact or in law, and it never became a mosque.
(C) That in spite of all that Mir Baqi tried to do with the Temple, the land
always continued to vest in the Plaintiff Deities, and they never surrendered
their possession over it. Their possession continued in fact and in law. The
ASTHAN never went out of the possession of the Deity and HIS
worshippers. They continued to worship HIM through such symbols as the
CHARAN and SITA RASOI, and the idol of BHAGWAN SRI RAM LALA
VIRAJMAN on the Chabutra, called the Rama Chabutra, within the enclosed
courtyard of the building directly in front of the arched opening of its
Southern dome. No one could enter the building except after passing
through these places of Hindu worship. According to the Muslim religion
and law there can be no Idol worship within the courtyard of a mosque, and
the passage to a mosque must be free and unobstructed and open at all times
228
to the 'Faithful'. It can never be through Hindu place of worship. There can
be no co-sharing of title or possession with ALLAH in the case of a mosque.
His possession must be exclusive.
(D) A mosque must be built in a place of peace and quiet, but near to a
place where there is a sizeable Muslim population according to the tenets of
Islam, and as insisted upon by it, a mosque cannot be built in a place which
is surrounded on all sides by Temples, where the sound of music or conch
shells or Ghanta Ghariyals must always disturb the peace and quiet of the
place.
(E) A mosque must have a minaret for calling the Azan. According to
Baillie When an assembly of worshippers pray in a masjid with permission,
that is delivery. But it is a condition that the prayers be with izan. or the
regular call, and be public not private, for though there should be an
assembly yet if it is without izan. and the prayers are private instead of
public, the place is no masjid, according to the two disciples. (Pt. 1. BK. IX,
Ch. VII Sec. i,p. 605) Indeed, there has been no mosque without a minaret
after the first half century from the Flight. (See-P.R. Ganapathi Iyer's Law
relating to Hindu and Mahomedan Endowments, 2
nd
Edition, 1918, Chap.
XVII, P. 388.)
(F) According to the claim laid by the Muslims in their suit No. 12 of
1961, the building is surrounded on all sides by grave-yard known as 'Ganj
Shahidan'. There is a mention in the Fyzabad Gazetteer also, quoted herein
above, of the burial of 75 Muslims at the gate of the 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, if the building was surrounded by a grave-yard during the British
times soon after the annexation of Avadh by them, the building could not be
a mosque, and could not be used as a mosque, for the offering of prayers,
except the funeral prayers on the death of a person buried therein, is
prohibited in a grave-yard according to the Muslim authorities.
(G) As already stated, there is no arrangement for storage of water for
Vazoo and there are the Kasauti pillars with the figures of Hindu Gods and
Godesses inscribed thereon in the building.
229
(25) That the worship of the Plaintiff Deities has continued since ever
throughout the ages at Sri Rama Janma Bhumi. The place belongs to the
Deities. No valid waqf was ever created or could have been created of the
place or any part of it, in view of the title and possession of the Plaintiff
Deities thereon. ALLAH, as conceived by the Muslims, never got any title or
possession over the premises or any part of them. Nor has there ever been
any person, living or juridical, who might have put forward any claim to
ownership of the property or any part of it. Occasional acts of trespass or
attempts to get into possession by the muslims were successfully resisted and
repulsed by the Hindus from time to time, and there was no blemish or dent
in the continuity of title and possession of the Plaintiff Deities. No title
could or did vest in ALLAH over any part of Sri Rama Janma Bhumi by
adverse possession or in any other manner. Neither ALLAH nor any person
on his behalf had any possession over any part of the premises at any time
whatsoever, not to speak of any adverse possession.
(26) That at any rate no prayers have ever been offered in the building at
Sri, Rama Janma Bhumi, which was recorded as Janmasthan Masjid, during
the British times, and confined, after the annexation of Avadh, to the area
within the boundary wall raised by them adjacent to the arch openings, in the
courtyard which is n ow enclosed by what may now be described as the outer
boundary wall. The domes of the building and substantial parts of it were
destroyed by the Hindus in the year 1934 during the communal riots which
occurred by way of retaliation to cow slaughter by some Muslims at
Ayodhya. Although the building was got re-built by the Government, no one
dared to offer namaz therein. No action was taken by anyone for its use or
management as a mosque. Neither of the two Boards of waqfs in U.P.,
namely the Sunni Central Board of Waqfs and the Shia Central Board of
Waqfs, created on the passing of the U.P. Muslim Waqfs Act in 1936, took
any action or postive steps for the establishment of the building as a mosque.
No one acted as a Mutwalli or Muazzin or Imam or Khatib or Khadim of the
building as a mosque.
(27) That after independence from the British Rule, the Vairagis and the
Sadhus and the Hindu public, dug up and levelled whatever graves had been
left in the area surrounding Sri Rama Janma Bhumi Asthan and purified the
230
place by Akhand Patha and japa by thousands of persons all over the area.
Ultimately, on the night between the 22
nd
23
rd
December, 1949 the idol of
Bhagwan Sri Rama was installed with due ceremony under the central dome
of the building also.
(28) That although there have been no Muslims residing anywhere near the
place, and no resistance was offered by any Muslim to any of these acts, the
local authorities found it difficult to get out of their old habits acquired under
the British Rule, and a First Information Report was recorded by the Police
on their own and proceedings were initiated by the Additional City
Magistrate under Section 145 of the Code of Criminal Procedure, 1898, by
recording a Preliminary Order dated 29.12.1949. The Magistrate did not
identify any Hindu or Muslim individuals as parties to the dispute, and
merely said that he was satisfied on information received from Police
sources and 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 Babri Masjid and Janma Bhumi
Mandir......... is likely to lead to a breach of the peace. That was merely a
device to take over the administration of the Janma Bhumi Mandir by the
Government by appointing a Receiver, namely, B. Priya Dutt Ram, who was
appointed as such by the same order, and after his death in 1970 Sri K.K.
Ram Verma was appointed in his place by the City Magistrate, although he
had dropped the proceedings under section 145 of the Code of Criminal
Procedure, 1898, by order dated 30.7.1953, with the finding that there was
no apprehension of the breach of peace any longer. Orders for appointment
of Receiver have now been passed by the Civil Court, and Sri K.K. Ram
Verma, who was functioning for more than 15 years under stay orders, has
been replaced by a Civil Court Receiver.
(29) That the plaintiff Deities were not made parties to any of the aforesaid
proceedings in which the orders of appointment of Receiver have been
passed, whether by the City Magistrate or the Civil Court. The powers of a
Receiver are derived solely from the orders of the Court. The Receiver was
not authorised to remove any person from the possession or the custody of
the premises, and in fact the Receiver never interfered with the possession of
the Plaintiff Deities. No party to a proceeding could dispossess a third party,
231
nor could the Receiver interfere with the possession of a person who is not a
party to the proceedings. At the highest, the Receiver acted like a Shebait.
He did not disturb the possession of the plaintiff Deities. Their possession
over, the building premises in disput ever since the installation of the first
Plaintiff's Idol on the night between the 22
nd
and 23
rd
December, 1949, is
admitted by all the concerned parties. Thus, independently of the original
title of the Plaintiff Deities which continued all along, the admitted position
of their possession places the matter of their title beyond any doubt or
dispute. Even if there had been any person claiming title to the property
adversely to the Plaintiff Deities, that would have been extinguished by their
open and long adverse possession, which created positively and affirmatively
a proprietary title to the premises in the Plaintiff Deities.
(30) That the Hindu Public and the devotees of the Plaintiff Deities, who
had dreamed of establishing Ram-Rajya in Free India, that is, the rule of
Dharma and righteousness, of which Maryada Purushottam Sri Ramchandra
Ji Maharaj was the epitome, have been keenly desirous of restoring his
Janmasthan to its pristine glory, as a first step towards that national
aspiration given to us by Mahatma Gandhi. For achieving this, they are
publicly agitating for the construction of a grand Temple in the Nagar style.
Plans and a model of the proposed Temple have already been prepared by the
same family of srchitects 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.
(31) That the plaintiff Deities not being a party to any of the litigations
pending in the Courts, and being thus not bound or affected by anything
which may be decided or not decided in any of the four suits pending as
aforesaid for the last so many years, the Plaintiff No. 3 felt that the pendency
of the said suits may present a hindrance, inasmuch as a declaration has been
sought, privelously though, in suit No. 12 of 1961, by the Sunni Central
Board of Waqfs, U.P., that the building at Sri Rama Janma Bhumi Ayodhya is
a mosque known as 'Babri Mosque' and that the adjacent land is a Muslim
Public graveyard, known as Ganj-Shadidan, and the Court had permitted the
plaintiffs of that suit to sue the Defendants Nos. 1 to 4 thereof as
232
representatives of the entire Hindu community. The Plaintiffs of that suit
cannot represent the entire Muslim community because they are all Sunnis,
and thus only asegment of the Muslim population, who have wide ranging
differences with other sects of Muslims, particularly the Shias. Nor were the
Defendants Nos. 1 to 4 competent or capable of representing the entire world
of Hindus. The Defendants Nos. 1 and 2 have categorically stated that they
do not represent any one else except themselves, and the Defendant No.3 has
put forward a personal interest in the management of the worship of the
Plaintiff Deities. Defendant No.4 is already dead. Under the circumstances
the Plaintiff No. 3 has been advised to file this suit as the next friend for and
on behalf of the Deities, to remove whatever obstacle there may be in the
path of the fulfilment of the aforesaid programme, against all the contending
parties.
(32) That according to the case taken up by the Defendants Nos. 4, 5 and 6
and the documents filed by them or on their behalf, the 'Babri Masjid' was a
Sunni Waqf but its Mutwallis, being the descendants of Mir Baqi, were Shia
Muslims. A judgement dated 30.3.1946 of Sri S.A. Hasan, Civil Judge,
Faizabad, in suit No. 29 of 1945, of his Court, between the Shia Central
Board of Waqfs U.P., as Plaintiff and the Sunni Central Board of Waqfs U.P.,
as the Defendant, has been produced in this context, although the judgement
has not been relied upon or referred to in the Plaint of Suit No. 12 of 1961 to
show that the Waqf of the Babri Masjid was a Sunni Waqf and that its
Mutwallis were Shias. This position seems to be incomprehensible in law,
inasmuch as a waqf created by a Shia Waqif would be a Shia waqf and
could not be a Sunni Waqf. Admittedly, according to their case, the 'mosque'
was built by Mir Baqi and that he was a Shia, and that he being the Waqif his
heirs were the Mutwallis one after the other. But the Shia Central Board of
Waqfs, U.P. did not agitate the case any further, either because of negligence
or collusion in those difficult days of communal conflict immediately before
the Partition. At any rate this judgement is not binding. Further according to
a report dated 10.12.1949 of Mr. Mohammad Ibrahim, Waqf Inspector, and
an office note signed by the Secretary of the Sunni Central Board of Waqfs,
U.P. and dated 25.11.1948, Sri Javed Husain, the nambardar of village
Sahanwa, and in the line of descent from Mir Baqi, was the Mutawalli of the
233
waqf, although it appears, he was not acting as such and did not submit to
the jurisdiction of the said Board of Waqfs. The Shia Central Board of
Waqfs, U.P., and Sri Javved Husain are also being impleaded as Defendants
Nos. 22 and 23 in this suit. Prince Anjum Quder, who is the president of the
All India Shia conference and that body as representatives of the Shia
Muslims, have also been impeaded as Defendants Nos. 24 and 25 in the suit.
(33) That the entire premises at Sri Rama Janma Bhumi, Ayodhya, which
contain, besides the presiding Deity of Plaintiff No. 1 other Idols and Deities
and the Rama Chabutra, the Charan and the Sita Rasoi etc., along with the
yards, enclosures and buildings, including the Sita Koop, and all that,
constitute one integral complex. They have a single identity. The claim by
the Muslims represented by the Defendants Nos. 4,5 and 6 is confined to the
building and the area enclosed within the inner boundary wall, erected after
the annexation of Avadh by the British. The rest of the area has not been
claimed as 'Babri Masjid'. The claim that the surrounding area is a Qabristan
known as Ganj Shahidan is vague and undefined. There are no graves
anywhere for the last fifty years at least. The totality of the Facts and
circumstances set out above demonstrate the utter hollowness of the claim
put forward by the Muslims represented by Defendants Nos. 4,5 and 6 who
do not represent the entire Muslim community. Besides, although admitting
that Defendant No. 23 is the present Mutwalli of the 'Babri Masjid' since
before 1948, he was not joined as a Plaintiff or Defendant in the suit No. 12
of 1961, in spite of the well established position in law that only a Mutwalli
of mosque can sue for its possession, and even where a worshipper sues in
respect of an existing mosque he must sue for possession being delivered to
the Mutwalli and that he cannot ask for possession being delivered to him.
(34) That a sensible section of the Muslim community led by Prince Anjum
Quder, Defendants No. 24, does not approve of the course adopted by the
Defendant Nos. 4 to 6 and their like. Suggestions have been made from
many quarters for ending the dispute by removal of the 'mosque' to suitable
place where it could serve the interest of its beneficiaries. Although the
Plaintiffs do not admit for a moment that the building at Sri Rama Janma
Bhumi, Ayodhya, or any part of its precincts has ever been a mosque, they
would not be averse to the proposal of removal of the materials of the
234
building, except the Kasauti pillars and the like, for, the building will in any
case have to be demolished for the construction of the new Temple which
they propose to construct at the place.
(35) That the Muslims are as much the children of God as Hindus, and the
Plaintiff No.3, believes in the policy of living in amity and goodwill with all
the several communities and religious denominations in Free India. But
having regard to the nature and significance of the ASTHAN SRI RAMA
JANMA BHUMI for the Hindus, its sites cannot be changed. On the other
hand, under the tenets of Islam a Mosque can be shifted under certain
circumstances, and these circumstances are fully and entirely made out in the
case of the 'Babri Masjid', if a mosque it ever was. The shifting of the so
called 'Babri Masjid' from its present site at Sri Rama Janma Bhumi, would,
therefore, appear to be the most sensible solution of the acrimonious dispute
which has been raging for some time past and threatening the peace of this
land of SRI RAMA.
(35 H) That exasperated by the laws deleys, the saints assembled in a
meeting held at Ujjain during May, 1992, resolved to start the KAR SEWA
for the construction of New Temple at Sri Rama Janma Bhumi from the
SHILANYAS site, on July, 9, 1992, and in their assembly at Ayodhya on
July 6,7 and 8, 1992, that resolve was re-affirmed.
(35 I) The 30
th
November was fixed by the Assembly of saints or
October 30, 1992 for the commencement of the KAR SEWA for constructing
the new temple at Sri Rama Janma Bhumi after the break down of the talks
for an amicable resolution of the Rama Janma Bhumi-Babri Masjid dispute
that had been initiated at the instance of the Prime Minister.
(35 J) That inspite of all efforts to the contrary, the KAR SEWAKS
climbed up the three domed structure and brought it down with their bare
hands, in about 5 hours after 11.A.M., on 6.12.1992. The debris was
thereafter cleared and carried away by the KAR SEWAKS as holy
mementos, leaving the place where the Deity of BHAGWAN SRI RAMA
LALA was installed under the central dome of the demolished structure flat
in the form of a CHABUTRA on which the Deity was immediately re-
installed, the place was enclosed by a brick boundary wall and a canopy was
also erected for the protection of the Deity, and PUJA was continued as of
235
yore.
(35 K) That owning full responsibility for the orders that firing shall
not be resorted to by the security forces against the KAR SEWAKS and the
inability to prevent the demolition of the three domed structure, Sri Kalyan
Singh, the then Chief Minister of U.P. resigned from that office by the
evening of 6.12.1992 but instead of acceptance of the resignation by the
Governor, the Prime Minister advised the President to impose his own rule
and notify the dissolution of the Legislative Assembly before midnight that
day, which the President dutifully did under Article 356 of the Constitution.
(35 M) That shortly thereafter on January 7, 1993, the President
Promulgated the ACQUSITION OF CERTAIN AREA AT AYODHYA
ORDINANCE, No. 8 of 1993 and simultaneously referred to the Supreme
Court, under Article 143(1) of the Constitution for its consideration and
opinion, the following question:-
Whether a Hindu temple or any Hindu religious structure existed prior, to
the construction of the Ram Janma Bhumi-Babri Majid (including the
premises of the inner and outer courtyards of such structure) in the area on
which the structure stood?
(35 N) That the object and purpose of both the said measures adopted
by the President on 7.1.1993, was stated therein to be the settlement of the
long-standing dispute relating to the structure (including the premises of the
inner and outer courtyards of such structure) commonly known as the Ram
Janma Bhumi Babri Masjid, situated in village Kot Ramchandra in Aydhya.
The preamble to the reference shows that the area in which the structure
stood is located in Revenue Plot Nos. 159 and 160 in the said village Kot
Ramchandra.
(35 O) That the device adopted by the Ordinance was the acquisition of
the area in which the disputed structure stood, and vesting it for the time
being in the Central Government until its transfer to any authority or other
body, or trustees of any trust willing to comply with the terms and
conditions that may be imposed by the Central Government, which event, it
must have been contemplated, would come after the settlement of the dispute
in the terms of the opinion of the Supreme Court on the question referred.
Under Sub-Section (3) of Section 4 of the ordinance all the suit and
236
proceedings relating to the said dispute that were pending in courts were
abated, and until the resolution of the dispute and transfer thereafter of the
area to some authority or other body or trustees of a trust by the Central
Government, it was required by Section 7 of the Ordinance to manage and
administer it, either by itself, or a person or body of persons or trustees of
any trust authorised by it in this behalf who was called the authorised
person according to the meaning assigned to that term under the definitions
clause (b) of Section 2 of the Ordinance, Sub Section (2) of Section 7 of the
Ordinance required that: In managing the property vested in the Central
Government under section 3, the Central Government or the authorised
person shall ensure that the position existing before the commencement of
this Ordinance in the area on 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 is maintained.
(35 P) That the said Ordinance was replaced and re-enacted as
Parliaments Act No. 33 of 1993, which received the presidents assent on
April 3, 1993, and was published the same day in the Gazette of India
Extraordinary but was deemed to have come into force on the 7
th
January
1993, the day on which the Ordinance was promulgated.
(35 Q) That the Plaintiff Deities who are juristic persons in law could
not have been, nor do they appear to have been acquired under the said
enactment. Nor could the right of the Hindus in general and the devotees of
SRI RAMA in particular to worship them be acquired or taken away. But
the right to manage their property including the arrangements to be made for
maintaining their worship on the SHEBAITI rights which in themselves
constitute heritable property under the Hindu law, would seem to have been
taken away and entrusted for the time being to the Commissioner, Faizabad
Division, Faizabad, ex-officio under Section 7 of the enactment by the
Central Government under cover of its responsibility to manage the area in
which the disputed structure stood.
(35 R) That the Authorised person is required by sub-section (2) of
Section 7 of the enactment to maintain status quo as it existed on the 7
th
January 1993, in the area in which the disputed structure stood. That is best
illustrated by the affidavit of Sri Radhe Sham Kaushik, the Commissioner,
237
Faizabad, dated the 6
th
August 1993, in the Contempt Petition No. 97 of
1992. In the matter of Mohd. Aslam alias Bhure Verses State of U.P.: I.A.
No. 10 of 1992: before the Supreme Court of India.
(35 S) That the validity of the said enactment (Ordinance No. 8 and
Act No. 33 of 1993) was challenged in several writ petition in the Hon'ble
Court which were with drawn by the Supreme Court for hearing and decision
along with the hearing of the preliminary objection to the maintainability of
the Presidential Reference under Article 143(1) of the Constitution. It was
sought to be challenged in the connected O.O.S. No. 3 and 4 of 1989 in this
Court as well, and an issue whether the suit has abated or services was
raised thereupon. Notice was also issued thereafter to Attorney General of
India, by the Hon'ble Court, but before the hearing of the issue could be
taken up by it, it was stayed by the Supreme Court, while ordering the
withdrawal of the writ petition against the acquisition from this Court to
itself for hearing and decision.
(35 T) That by judgement dated October 24, 1994, of the Hon'ble the
Chief Justice Mr. M.N. Venkatachalliah Hon'ble Mr. Justice J.S. Verma and
Hon'ble Mr. Justice G.N. Ray, in the Transferred Cases Nos. 41, 43 & 45 of
1993: Dr. M. Ismail Faruqui etcetera Vs. Union of India and others
connected with other Transferred cases and Writ Petitions and the Special
Reference No. 1 of 1993 under Article 143(1) of the Constitution: the
Supreme Court has declared the Sub Section (3) of Section 4 of Act No. 33
of 1993, to be unconstitutional and invalid, but upheld the validity of the
other provisions thereof subject to the interpretation put thereon by it.
(After Para 35 and before Para 36 all paragraphs are added vide
order dated 09.5.1995. Para 35 U struck of under the order of the
court dated 03.08.1995. Paras 35 H, 35 I, 35 J, 35 K, 35 M, 35 N,
35 O, 35 P, 35 Q, 35 R, 35 S, 35 T, 35 U amended under vide order
dated 09.05.1995 on C.M. A. No. 8 (O) of 1994. Sd/- 22.05.1995).
(36) That the cause of action for this suit has been accruing from day to
day, particularly since recently when the plans of Temple reconstruction are
being sought to be obstructed by vioient action from the side of certain
Muslim Communalists.
(37) That the subject matter of dispute is situate within the limits of the
238
territorial jurisdiction of the Court.
(38) That the valuation of the suit for purposes of jurisdiction is placed at
Rs. 11,11,101/- as the subject matter of the suit being inalienable, is
incapable of valuation in terms of money and consequently that for payment
of Court Fee it is Rs. 2,22, 220/-. The prescribed court fee of Rs. 500/- being
the maximum, is being paid on the consequential relief of injunction.
(39) That the Plaintiffs claim the following RELIEFS:
(A) A declaration that the entire premises of Sri Rama Janma Bhumi at
Ayodhya, as described and and delineated in Annexures I, II and III, belong
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.
(C ) Costs of the suit against such of the Defendants as object to the grant
of relief to the plaintiffs.
(D) Any other relief or reliefs to which the Plaintiffs may be found
entitled.
Counsel for the Plaintiffs
Dated: July 1, 1989. Sd/-
(DEOKI NANDAN)
Plaintiff No. 3
for himself and for and on
behalf of Plaintiff Nos. 1 & 2
as their next friend.
239
31A1/1
In the Hon'ble High Court of Judicature at Allahabad Lucknow Bench
Lucknow.
Written statement under order 8 Rule 1 C.P.C. On behalf of Nirmohi
Akhara Defendant No. 3.
In
O.O.S NO. 5 OF 1989
********
1. Before giving para-wise reply to the plaint it is necessary to state that
Shri Deoki Nandan Agrawal posing himself as the Next Friend has filed this
long cumbersome suit embracing a wide range of matters and topics, mostly
irrelevant collected from alleged many and various records and books and
annals of history running into 39 long paragraphs. The suit was filed on
1.7.1989 before the Civil Judge Faizabad without serving any notice or
duplicate of the plaint. The suit has since been transferred to this Hon'ble
Court. On 11.8.1989 when the answering defendants learned counsel
informed this Hon'ble Court that he will require sufficient time to collect
necessary information and materials to enable him to file a full and complete
written statement. This Hon'ble Court was pleased to observe that written
statement may be filed on 14.8.1989 and then a supplementary written
statement may be filed later. The answering defendant despite his best efforts
could not collect necessary requisite information and materials to file a full
and complete written statement and is filing this written statement reserving
his right to file a supplementary written statement with fuller and more
complete facts after making further inquiries and collecting more facts, for
which a separate application for time is also being made.
2. That the present suit filed by B. Deoki Nandan Agrawal is purely a
malicious suit and is designed to damage the title and interest of the
answering defendant. He has no right to act as Next Friend of plaintiffs 1
and 2 and plaintiff no. 2 is not even a juridical persons. Nor has he any
personal right to file the suit. The suit is liable to be summarily dismissed.
3. That it is wrong to say that Bhagwan Shri Ram is also called Ram Lala
Virajman. The address of the plaintiff No. 1 is also incorrect. Bhagwan Shri
Ram is installed not at Janma Bhoomi but in the Temple known as Janma
Bhoomi Temple for whose delivery of charge and management the
answering defendant has filed his suit No. 26 of 1959 (Now O.S. No.2 of
1989). The suit is liable to be dismissed for this incorrect description and
240
address as well.
4. That the contents of para-1 of the plaint as drafted are totally wrong
and are denied. The idol of Bhagwan Shri Ram is installed or is Virajman
not at Ram Janma Bhoomi Ayodhya but in the temple known as Ram Janma
Bhoomi Temple Ayodhya for whose delivery of charge and management the
answering defendant has filed his suit referred to above. It is also totally
wrong to say that Bhagwan Shri Ram is also known as Ram Lala
Virajman. He is not known as such more over the ward VIRAJMAN
tacked with the words Shri Ram Lala is simply meaningless. Virajman is
not the name or title of any deity but it simply means resident or residing.
Asthan Shri Ram Janma Bhoomi Ayodhya as stated in para-1 of the plaint
is again a meaning less phrase. Asthan, simply, means a place and is not a
juridical person. It is denied that the plaintiff No. 3(Shri Deoki Nandan
Agarwal) is a Vaishnavite. He is not even a worshipper of the Deity installed
in Shri Ram Janma Bhoomi Temple and has no right to sue. Nor can he
represent the Deity or the so called Asthan. He is not at all interested in the
welfare of the Deity in question. He lives at Allahabad and is not at all
interested in Shri Ram Janma Bhoomi Temple and got maliciously interested
to obtain cheap popularity by raising a slogan of constructing a new temple
by arranging to spend Rs. 25 Crores when the temple belong to the defendant
No.3, the answering defendant.
5. That the contents of para-2 of the plaint are denied. The birth place of
Ram is not in dispute. The whole world knows that His birth place is in
Ayodhya where the Temple Ram Janma Bhoomi stands. It is the temple
known as Ram Janma Bhoomi Temple situate in mohalla Ram Kot Ayodhya
which is in dispute in the various suit transferred to this Court, which by
Muslims is said to be a mosque and which is claimed by the answering
defendant as being the Temple of Bhagwan Shri Ram under his charge and
management, and where of the Nirmohi Akhara is the Shebait of Bagwan Sri
Ram. Annexure I, II and III are denied as incorrect. The plaintiffs should
submit a fresh correct and complete plan. Many important places of the
temple have not been shown in the said Annexures. They pertain to another
suit and have no evidentiary value in the present suit.
6. That the contents of para-3 of the plaint are not denied.
241
7. That the correctness of the contents of para-4 of the plaint can best be
verified from the plaint of suit No. 2 of 1950. The plaintiffs have wrongly
used the words Asthan Janma Bhoomi which is denied. It is the temple
known as Shri Ram janma Bhoomi Temple at mohalla Ram Kot Ayodhya.
Asthen Janma Bhoomi means the birth place of Shri Ram which is the entire
city of Ayodhya. It is the temple referred to above which is question and not
the birth place of Bhagwan Shri Ram.
8. That the contents of para-5 of the plaint are not denied.
9. That in regard to the contents of para-6 of the plaint it is submitted that
the said contents are not denied except that the plaintiffs of the present suit
filed by Sri Deoki Nandan Agrawal have maliciously used the words
Asthan Janma Bhoomi in place of the words Temple of Janma Bhoomi.
The correct version of the plaint in suit No. 26 of 1959 shall appear from the
said plaint itself which suit has been connected with the present suit.
10. That the contents of paras 7 to 10 of the plaint are all matters of record
which may best be ascertained from the record of the suits which are all
consolidated and connected.
11. That the contents of para-11 of the plaint are not denied.
12. That the contents of para-12 of the plaint are not denied except the last
sentence which is irrelevant.
13. That the contents of para-13 of the plaint are matters of record which
may be ascertained from the same.
14. That the answering defendant will reply to the first part of Para -14 of
the plaint after making full inquiries. But the contents of the last sentence
are emphatically denied. The answering defendant is the Shebait of
Bhagwan Shri Ram installed in the temple in dispute, and he (the Nirmohi
Akhara) alone has the right to control and supervise and repair or even to re-
construct the temple if necessary. It is absolutely false to say that the
devotees of the plaintiff Deities are diserous to have a new temple
constructed after removing the old structure.
15. That the contents of para-15 of the plaint are emphatically denied.
The Nirmohi Akhara has no knowledge of the alleged Trust and he (the
defendant No.3) reserves the right to give fuller reply to this para after
making complete inquiry of the allegations contained in this para.
242
16. That the contents of para-16 of the plaint are emphatically denied.
The answering defendant reserves his right to give fuller replies after making
thorough inquiries. The alleged Trust has no relevance at all to the present
dispute. In this para the name of Mahant Ram Kewal Das is mentioned at
item No. 7 as also being a Trustee for life to the alleged Trust. Mahant Ram
Kewal Das is a simple Sadhu and he was duped to become a Trustee without
understanding fully the malicious plan of the alleged Trust to encroach upon
the rights and interests of the Nirmohi Akhara which is Panchayate Akhara
and is governed by the Panches of the Akhara. The Mahant is only a figure
head without any power or authority to bind the Akhara through any act done
by him or any transaction or entered by him. Even if Mahant Ram Kewal
Das be proved to have accepted himself as Trustee, intelligently and
consciously which is denied, the Nirmohi Akhara is not all bound by his
alleged act and the alleged Trust even if proved has no bearing or relevance
to the present dispute. The Nirmohi Akhara filed its suit in 1959 and the said
Trust is said to have come into existence only in 1985 with an obvious
design to damage the title and interest of the Akhara.
17. That the contents of para-17 of the plaint are totally wrong and are
emphatically denied. The said NYAS is neither directly nor indirectly
interested in the Sewa, Puja of Bhagwan Shri Ram which interest solely lies
with the answering defendant. The said Nyas is only maliciously interested
to encroach upon the rights of the Nirmohi Akhara who is the sole Shabait of
the said Deity. The Nyas is irrelevant to the present dispute and is not at all a
proper party to the suit.
18. The contents of para-18 of the plaint are emphatically denied. The
plaintiffs have been wrongly advised to file this malicious suit. Asthan Shri
Ram Janma Bhumi is not at all a juridical person. The answering defendant
has already filed suit No. 26 of 1959 thirty years ago for the benifit of
Bhagwan Shri Ram for a decree of delivery of charge and management of
the temple to the Nirmohi Akhara.
19. That the contents of para-19 need no reply except that though the birth
place of Bhagwan Ram is place where the temple known as Ram Janma
Bhumi Temple is constructed but the dispute is not regarding the place of
birth of Lord Rama but regarding the Temple known as Temple Shri Ram
243
Janma Bhumi. The belief that Lord Ram is the son of Raja Dashrath of solar
Dynasty is not disputed.
20. That the contents of para-20 of the plaint are denied. They are
products of imagination of the so called Next Friend of the plaintiffs 1 and 2.
The plaintiffs studiously avoid to mention the subject of dispute as the Ram
Janma Bhumi Temple for whose delivery of charge and management the
Nirmohi Akhara has filed the suit No. 26 of 1959 and maliciously uses the
phrase Asthan Sri Ram Janma Bhumi which is meaningless. The said Asthan
is not a juridical person.
21. That the contents of para-21 of the plaint are the indivisual view of
Shri Deoki Nandan Agrawal, the plaintiff No. 3 of the suit are totally
irrelevant to the subject matter of dispute and have been vainly introduced in
the plaint.
22. That the contents of para-22 of the plaint are the personal views of
Shri Deoki Nandan and are totally irrelevant to the present dispute which
relates to the Ram Janma Bhumi Temple.
23. That the contents of para-23 of the plaint refer to various alleged
historical facts. They cannot be replied without making thorough
investigation for which the answering defendant seeks time and will reply
through a supplementary written statement later.
24. That the contents of para-24 of the plaint shall be answered after
making further inquiry into the matter later through a supplementary written
statement.
25. That the contents of para-25 of the plaint are denied. The temple in
question along with the land and properly appertaining there to is already
Waqf property where of the Nirmohi Akhara is the Shebait and Manager.
The rest of the contents are only argumentative.
26. That in reply to the contents of para-26 of the plaint it is true that no
prayers have ever been offered by any muslim in the Ram Janma Bhumi
Temple which is claimed by some muslims on Mosque which it never was.
The rest of the contents are matters of evidence which shall be inquired into
by the answering defendant and then replied later through a supplementary
written statement.
27. That the contents of para-27 of the plaint cannot be replied without
244
making thorough inquiry for which the answering defendant needs time. But
it is asserted that the idol of Bhagwan Ram was always there installed in the
Temple. The answering defendant reserves the right to give fuller and more
complete inquiry through a supplementary written statement.
28. That in reply to the contents of para-28 of the plaint only this much is
admitted that the temple in question along with the appertaining properties
was attached illegally under section 145 Cr.P.C. It was on account of this
attachment that the Nirmohi Akhara filed Suit No. 26 of 1959. The rest is a
matter of record.
29. That in reply to the contents of para-29of the plaint it is stated that the
answering defendant has already filed suit No. 26 of 1959 for of delivery of
charge and management of the said temple. The contents of para-29 are
irrelevant. The plaintiffs have no right and interest a part from the rights of
Nirmohi Akhara.
30. That the contents of para-30 of the plaint are denied. There is no
movement of any construction of a new temple in place of the present
temple. The Temple belongs to Nirmohi Akhara. No body else has a right to
construct a new temple in its place except the Nirmohi Akhara.
31. That the contents of para-30 of the plaint are partly irrelevant and
partly a matter of record and can be ascertained from the same. The
plaintiffs of the suit have no real title to sue and they have been wrongly
advised to file the suit only to harass the Nirmohi Akhara and to try to
encroach upon its rights of management of the temple. There is a subdues
observation regarding the fulfilment of the Aforesaid programme which
obviously referes to the imaginary plan if reconstruction. This renders the
entire suit as malicious and inconsistent with the relief sought and the suit is
liable to be dismissed.
32. That the contents of para-32 of the plaint refer to various orders and
report about which the answering defendant has no knowledge. He will give
a reply after full inquiry regarding the said orders and reports through a
supplementary written statement later.
33. That the contents of para-33 of the plaint are denied. The entire
premises belong to the Nirmohi Akhara the answering defendant. There is
no question of any mosque as Babri Masjid or any Qabristan.
245
34. That the contents of para-34 of the plaint are not known to the
answering defendant. He will give complete reply after full inquiry through
a supplementary written statement. But this is admitted that the Temple of
Shri Ram Janma Bhumi was never a mosque. There is no question of
demolishing the building at all nor of a new construction.
35. That the contents of para-35 of the plaint are irrelevant and need no
reply.
36. That the contents of para-36 of the plaint are denied. The plaintiffs
have no cause of action at all and the suit is liable to be dismissed.
37. That para-37 of the plaint is admitted.
38. That the valuation fixed in para-37 of the plaint is totally fictitious and
is denied.
39. That the plaintiffs are not entitled to any relief at all. The premises
mentioned by the plaintiffs belong to the Nirmohi Akhara and the Plaintiffs
of this suit have no right of declaration against the right and titles of the
Nirmohi Akhara. Nor are the plaintiffs entitled to any injunction as sought.
Additional Pleas
40. That the reliefs sought by the plaintiffs are both imaginary and
inconsistent and contained a threat to demolish the temple of the Nirmohi
Akhara for which the suit of the Akhara is pending. The suit is liable to be
dismissed.
41. That the answering defendants will file a supplementary written
statement later after making necessary inquiries into the various allegations
made in the plaint. In any view of the matter this suit is liable to be stayed
under Section 10 C.P.C. till the final disposal of the suit of Nirmohi Akhara.
R.S. No. 26/59.
Lucknow
Dated: August 14, 1989. Defendant No. 3
Nirmohi Akhara through
Mahant Ram Kewal Das.
Present Mahant
Through
Sd/-
(S.L. Verma)
Advocate
Counsel for the Nirmohi
Akhara Defendant No. 3.
246
In the High Court of Judicature at Allahabad Lucknow Bench Lucknow
Additional W.S./Supplementary W.S. On behalf of Nirmohi Akhara
Defendant No. 3
in
O.O.S. No. 5 of 1989
Full Party Name to be typed.
1. That contents of para 1 to 41 of W.S. Of defendant No. 3 are
reaffirmed.
Addl. W.S./Supplementary W.S.
Para 42. That site plan annexure 11 attached to the above noted plaint
does not bear any plot nos. (settlement or Nazul) nor it is bounded as to give
any definite identity of property. Temple Shri Vijay Ragho Ji Sakshi Gopal
has never been subject matter of the any of the suit O.O.S. 4/1989 or O.O.S
3/1989 pending before this Hon'ble Court. Sumitra Bhawan is another
temple shown in the site plan which is temple of Sheshaawatar Laxmanji
Maharaj and that is why it is famous name of his mother Sumitra as Sumitra
Bhawan. It has been in possession and management of Mahant Raj Mangal
Das one of the panch of Nirmohi Akhara. The Nazul plot no. 588
measaming 1-6-13-15 Kachwanceis of Mohalla Ram Kot is recorded with
Diety Laxamanji Maharaj through Ram Das Nirmohi who is Guru of Raj
Mangal Das. Mah Ram Das of Sumitra Bhawan is recorded in settlement
plot No. 168 to 174 as qubiz. Similarily Lomash Chaura Mandir, Sita Koop
Mandir, Kuti shown is said map has distinct Diety of Bahgwan Ram Lalaji
by the other panches of Nirmohi Akhara namely and respectively Mahant
Dwarika Das, Mahant Naval Kishore Das and Ram Gopal Das who are all
panches of Nirmohi Akhara. Sankat Mochan temple have been omitted in
the said map whereas it did exist on the date of this suit. It has its diety
Sankat Mochan Hanomanji and Thakur Ram Janki represented by Sarbarakar
Ram Dayal Saran Chela of Ram Lakhan Saran. Late Ram Lakhan Saran and
also belong to the spiritual family of Nirmohi Akhara as he was Naga Chela
of Goliki Ram Lakhan Das, one of the old panch of Nirmohi Akhara. Other
Samadhis in the name of famous sages have been owned and claimed by
answering defendant No. 3 as Samadhies of old Sadhus of Nirmohi Akhara.
Panches and Sadhus of Akhara are living in the surrounding since before the
human memory. The outer Sahan carried a little temple of Bhagwan Ram
247
Lalaji along with other place which are regularly worshipped according to
the customs prevailing amongst Rama Nandi Vairagies. The outer part with
this temple of Ram Lallaji and other dieties have ever been in management
and charge of Nirmohi Akhara as sheibiat till this outer portion with Bhandar
was attached U/s 145 Cr.P.C. on 16.2.1982 and a receiver is appointed there
vide order of Civil Judge Faizabad in Reg. Suit 239/82 Sri Ram Rama Nandi
Nirmohi Akhara Versus K.K. Ram Varma etc. due to lootpat committed by
Dharam Das. Mr. Deoki Nandan Agarwal has named himself to be witness
of Dharam Das. Therefore, suit for all these properties by plaintiff 3 is not
maintainable for want of possession and is barred by provision of Section 34
of Specific Relief Act.
Para 43: That outer portion consisting of Bhagwan Ram Lala on Sri Ram
Chabutra along with other deities, chathi pujan sthan and Bhandar with
eastern outer wall carrying engraved image of varah Bhagwan with southern
and northern wall and also western portion of wall carries the present
municipal No. 10/12/29 old 506, 507 and older 647 of Ram Kot ward of
Ayodhya City had been a continious referred in man litigation since 1885 till
Reg. Suit No. 239/82 of the Court of Civil Judge Faizabad and in every case
Nirmohi Akhara was held always in possession and management of this
temple so the Bhagwan Ram Lalaji installed by Nirmohi Akhara on this Ram
Chabutra is a distinct legal entity owned by def. no. 3. That suit is bad for
want of impleadment of necessary party as mentioned above.
Para 44: That attachment made in the 1949 is only in respect of main
building of Garbh Grahya Carrying three Shikher where in the deity of
Bhagwan Sri Ram Chandraji is installed by Nirmohi Akhara from time
beyond the human memory and are since then is management and possession
of it till the said property attached. Therefore, plaintiff 3 can not claim any
right to represent him.
Para 45: That origin of installation pltf. 1 and 2 and dedication to it both
have not been pleaded by plaintiff no. 3. Thus pleading is vague and
misconceived.
Para 46: That suit is heavily time barred.
Para 47: That plaintiff No. 3 Mr. Deoki Nandan is office bearer of V.H.P.
and is also member of defendant No. 2 the alleged Nayas which is not a legal
248
constituent. There could be no delegation of an endowment to any other
trust. Once a dedication to endowment is always a dedication for ever. Thus
def. No. 21 altogether an illegal entity playing in the hands of V.H.P. Thus
interest of Pltff. No. 3 as member of Nayas Def. No. 21 is adverse to
Bhagwan Sri Ram Ji Pltff. No. 1.
Para 48: That outer portion with surrounding temples were illegally
acquired by V.H.P. Backed BJP Govt. which notification 7.10.1991 is under
the challenge in Writ Petition but same is void, illegal U/s 52 of T.P. Act.
Para 49: That plaintiff no. 1 can only be represented by Def. No. 3 along
and therefore plaintiff 1 to transposed as defendant to be represented by
defendant No.3.
Para 50: That suit is liable to be dismissed.
********************
Def. no. 3 Nirmohi Akhara Sd/-
R.L. Verma.
Advocate.
249
In the High Court of Judicature at Allahabad Lucknow Bench
Lucknow.
IInd Addl. W.S. On behalf of Defendant No.3 Nirmohi Akhara
In Re:
O.O.S. No. 5/1992
Full party name to be typed.
1. That the contents of Original Written Statement from para 1 to 41 and
contents of para 42 to 50 of Addl. Written Statement are re-affirmed.
Second Additional Written Statement
Para 51: That contents of para 16-A of the plaint are denied. That
existence of alleged Nayas is ipso facto illegal and void. Jagada Guru Rama
Nand had himself condemned the existence of alleged Nayas vide his
interview of Dainik Jan Morcha before his death. Sri Ram Chandra Das
has himself admitted the title, possession of Nirmohi Akhara since long.
Para 52: That disputed temple belongs to Nirmohi Akhara from before
the time of Hanuman memory and mostly all the property in suit vests to be
religious denomination of Panch Rama Nandi Nirmohi Akhara and thus there
could be no divesting of the religious institution to any other endowment or
Nayas. Def. No. 3 has not joined information of any such Nayas nor could it
do legally.
Para 53: That said Nayas is also becomes illegal as non-constituent body
being devoid of any title to disputed property.
************
Sd/- Mahant Bhaskar Das
Defendant No. 3 Nirmohi
Akhara.
Sd/-
R.L. Verma
Advocate.
250
In the High Court of Judicature at Allahabad Lucknow Bench
Lucknow.
O.O.S. No. 5 of 1989
(Regular Suit No. 236 of 1989)
(of the court of Civil Judge, Faizabad)
Full party name to be typed.
Fixed for 18.09.1989.
Written statement of the U.P. Sunni Central Board of Waqfs, Lucknow
(Defendant No. 4)
in O.O.S. No. 5 of 1989
The defendant No. 4 begs to submit as under:-
1. That the contents of para 1 of the plaint are incorrect and hence denied
as stated. Neither the plaintiffs Nos. 1 and 2 are the juridical persons and nor
there is any Presiding Deity of Sri Ram Chandraji at the place in dispute and
nor the plaintiff no. 3 has any locus standi or right to represent the so-called
and alleged deity and Asthan as next friend. It is further submitted that the
plaintiffs nos. 1 and 2 are not at all legal personalities (and as such they have
no right to file the instant suit). As a matter of fact there has never been any
installation of deity within the premises of the disputed place of worship
known as Babri Masjid and the idol in question was stealthily and
surreptitiously kept inside the mosque in the night of 22
nd
/23
rd
December,
1949 by some mischief-mongers against whom an F.I.R. had also been
lodged at the Police Station Ayodhya on 23
rd
December, 1949.
2. That the contents of para 2 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that the said plan as well
as the report submitted by Sri Sheo Shanker Lal, and made part of this Plaint
do not depict the correct position of the spot and the same cannot be relied
upon for identification and description of the property in suit. The plaintiffs
were, therefore, obliged to give the boundaries as well as the site plan of the
property in suit and the plaint is defective in this respect.
3. That the contents of para 3 of the plaint are also denied as stated and
in reply thereto only this much is admitted that suit No. 2 of 1950 had been
filed by Sri Gopal Singh Visharad against Sri Zahoor Ahmad and others. It
is incorrect to say that the original plaintiff of the said suit has died only
recently. The fact is that Sri Gopal Singh Visharad had expired several years
ago and no application for substitution has been moved in the said suit
within the prescribed period (and as such the said suit had abated much
251
before 1986 and the order of substitution passed in favour ofdefendant No.
1 is absolutely illegal and improper).
It is further submitted that the names of the Muslim defendants of the
said suit had been wrongly struck off. The answering defendant is advised to
state that the heirs of the Muslim defendants were liable to be substituted in
place of the original Muslim defendants. Rest of the contents of the para
under reply may be verified from the record of the original Suit No. 2 of
1950.
4. That the contents of para 4 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that whatever relief was
claimed in the said suit No. 2 of 1950 would appear from the copy of the
plaint of that suit.
5. That the contents of para 5 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that the contents of the
said suit No. 25 of 1950 may also be verified from the copy of the plaint of
that suit, and in the absence of the relevant record it is not admitted that a
valid notice under Section 80 of the Code of Civil Procedure had been given
prior to the filing of the aforesaid suit No. 25 of 1950.
(It is further submitted that the names of the Muslims defendants have
been wrongly struck off).
6. That the contents of para 6 of the plaint are also incorrect and hence
denied as stated and in reply thereto is submitted that since suit No. 25 of
1950 was also considered to be defective like Suit No. 2 of 1950, a third Suit
had also been got filed which had been numbered as Suit No. 26 of 1959.
Whatever was pleaded in Suit No. 26 of 1959 would appear from the copy of
the plaint of that suit and it is absolutely incorrect to say that the idols of Sri
Ram Chandraji and others have ever been installed in the said premises of
Babri Masjid which has been wrongly described as Janam Bhoomi. (It is
further submitted that the said Suit No. 26 of 1959 was also defective and
not maintainable. It is also incorrect to say that the heirs of the Muslims
defendants of the said suit were not liable to be substituted. The answering
defendant is advised to state that the cause of action, if any, did survive even
against the heirs and legal representatives of the said Muslim defendants). As
all of them claimed the property in suit to be a mosque and none of them had
252
ever admitted the said building to be a temple.
7. That the contents of para 7 of the plaint are also incorrect and hence
denied as stated and in reply thereto only this much is admitted that suit No.
12 of 1961 was filed by the answering defendant and 8 other Muslims in the
Court of the Civil Judge, Faizabad. The reliefs claimed in the said suit may
be verified from the plaint of the said suit and it is incorrect to say that only
plaintiffs Nos. 7 and 9 of the said suit are surviving. As a matter of fact the
plaintiffs nos. 5 and 8 of the said suit No. 12 of 1961, namely Maulvi Mohd.
Naseer and Vakiluddin are also very much alive and the plaintiffs nos. 2, 4,6
and 10 are survived by their legal representatives (and all of them are liable
to be impleaded in the instant suit).
8. That the contents of para-8 of the plaint are denied as stated for want
of definite knowledge and the same may be verified from the record.
It is further submitted that the aforesaid suit No. 12 of 1961 was filed
in the representative capacity and the application for permission to sue in a
representative capacity was allowed by the Court.
9. That in reply to para 9 of the plaint it is admitted that all the aforesaid
four suits have been consolidated and suit no. 12 of 1961 had been made as
the leading suit.
10. That the contents of para 10 of the plaint may also be verified from the
record of the suit No. 2 of 1950.
11. That the contents of para 11 of the plaint are denied as stated and in
reply thereto it is submitted that the plaintiffs nos. 1 and 2 cannot be treated
as deities and also there arises no question of their Sewa and Pooja. Rest of
the contents of the para under reply may be verified from the record.
12. That the contents of para 12 of the plaint are also denied as stated and
in reply thereto it is submitted that there arises no question of Sewa and
Pooja of the said alleged deities as no such deities exist in the building in
question and the idols kept therein could not be treated as deities. It is
further submitted that the restricted Pooja as carried on 16
th
January, 1950
could not be treated as Sewa and Pooja of the alleged deity. It is also
incorrect to say that there has ever been any likelihood of the suits being
decided in such a manner that any closer Darshan of the idols could be
possible.
253
13. That the contents of para 13 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that the defendant No. 20
had no right or title or locus standi to move the said application for the
opening of the gate of the mosque for closer Darshan (and the defendant No.
20 being not at all a party to any of the aforesaid suits, he had no locus standi
to file the Appeal before the District Judge, Faizabad, and the order dated
1.2.1986 passed by the District Judge, Faizabad, was patently and manifestly
illegal and without jurisdiction) and two writ petitions are pending in the
Hon'ble High Court against the aforesaid order dated 1.2.1986.
It is further submitted that the building in dispute is not the Janam
Bhoomi of Sri Ram Chandraji and no idols of Sri Ram Chandraji were ever
installed in the said building and as such there arises no question of any right
or claim of the defendant no. 20 or of anyone else to perform Pooja and
Darshan over there. The fact is that the property in suit is an old mosque
known as Babri Masjid and the same was constructed during the regime of
Emperor Babar.
14. That the contents of para 14 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that the building in
dispute is not a temple and as such there arises no question of any Pooja and
Darshan being allowed to be performed over there. (It is reiterated that the
plaintiffs nos. 1 and 2 are not the deities recognised by Hindu law and as
such they have no legal entity).
It is further submitted that since the building in question is a mosque
there arises no question of any new temple being constructed over the site of
the said Babri Masjid (and the plaintiffs or anyone else have no right or locus
standi to claim the removal of the old structure of the said mosque).
It is also relevant to mention here that neither any idols were kept in
the said mosque prior to the incident of the night of 22
nd
/23
rd
December,
1949 when the idols were surreptitiously or stealthily kept in the mosque by
some mischievous elements and nor the said mosque was ever used for
performing Pooja and Darshan etc. prior to 23.12.1949. As the plaintiffs
Nos. 1 and 2 cannot at all be treated as deities, there is no question of
unhappiness of the so called deities and their alleged devotees. It is,
however, admitted that there has been unnecessary and unusual delay in the
254
disposal of the suits referred to above and on account of the attachment of
the mosque for the last about 39 years the condition of the building has also
deteriorated. The Receiver appointed by the Court is not taking proper
interest in the maintenance of the building and in spite of the orders of the
Court, no repairs of the building have been undertaken for the last several
years. The answering defendant is, however, not aware of the alleged
misappropriation of the money by the staff appointed by the Receiver. The
answering defendant is further advised to state that the alleged desire of
removing the structure of the mosque and of constructing a temple on the
site of the said mosque is wholly uncalled for and unwarranted and
mischievous and any such attempt will be fraught with very dangerous
consequences (and instigation of such unholy design and illegal activity also
amounts to offence apart from being contemptuous) and in gross violation of
the restraint order passed by the Hon'ble High Court in Writ Petition No.
746 of 1986: Mohd. Hashim Versus State of U.P. and others.
15. That the contents of para 15 of the plaint are absolutely incorrect and
hence denied as stated and in reply thereto it is submitted that as there is no
temple there arises no question of improving the administration and re-
construction of the same or of managing the performance of alleged Sewa,
Archana and Pooja etc. So also there being no deities, there is no question of
protecting, renovating and re-construction and developing the alleged temple
premises, and the building in question being a mosque there was no question
or justification for creation of any Trust or for execution of any Deed of
Trust and the so-called Trust and Deed of Trust are wholly uncalled for,
unwarranted and illegal and the same have got no legal sanctity. The entire
exercise done in this respect is based on imaginary concept of Ram Janam
Bhoomi temple while no such temple ever existed over the premises in
question.
16. That the contents of para 16 of the plaint are absolutely incorrect and
hence denied as stated. As already stated above, the so-called Sri Ram
Janam Bhoomi Nyas has got nothing to do with the building in dispute and
as such it is absolutely irrelevant for the purposes of the instant case as to
who are the Trustees and members of the same.
17. That the contents of para 17 of the Plaint are absolutely incorrect and
255
hence denied as stated. The so-called Nyas has got no concern with the
property in suit and it is also not a legal person and no Sewa and Pooja being
done in the building in question under the auspices of the said Nyas, there is
no question of the impleadment of the Nyas as defendant No. 21.
18. That the contents of para 18 of the plaint are also denied as stated.
Neither there is any Presiding deity and nor there is any Asthan as alleged in
the para under reply and as such the plaintiffs nos. 1 and 2 are not at all the
juridical persons and the suit filed on their behalf is wholly misconceived
and non-maintainable. As already stated above, the idol was surreptitiously
and stealthily kept inside the mosque in the night of 22
nd
/23
rd
December,
1949 and as such the said idol has neither been installed in accordance with
the tradition and rituals of Hindu Law and nor there have been any
ceremonies prescribed by Hindu Law for the installation of the idols and as
such the idols kept in the mosque have got no legal entity and that being so
there arises no question of impleadment of the same, and moreover, the
plaintiff no. 3 has also got no direct right or title or concern with the property
in suit and as such he is also not entitled to institute the present suit. In any
case the instant suit having been filed after expiry of more than 39 years
since after the attachment of the property in suit the instant suit is heavily
barred by time and it is not at all maintainable even on this account.
19. That the contents of para 19 of the plaint are absolutely false and
incorrect and hence denied as stated. Neither there is any public record,
much less any record of unimpeachable authority showing that the premises
in dispute is the place of birth of Sri Ram Chandraji and nor there is any
historical or judicial record to testify the averments of the para under reply.
As a matter of fact the religious books as well as the writing of Hindu
scholars themselves make it very doubtful as to whether the personality of
Sri Ram Chandraji is a historical personality. Similarly there are several
versions about the place of birth of Sri Ram Chandraji and it is not at all
settled, even amongst the Hindu scholars, as to where and in what period
such a religious leader known as Sri Ram Chandraji was born. The booklets
being circulated at Ayodhya by the Vishwa Hindu Parishad and other Hindu
Organizations and other books of Hindu mythology describe the period of
Sri Ram Chandraji as that of Treata Yug meaning thereby that he was born
256
more than 9 lakh years ago. According to Hindu mythology, there have been
three Maha Prayleys during this period due to which the entire earth had
submerged into water and as such according to Hindu mythology itself no
specific place can be said to be the birth place of Sri Ram Chandraji. It is
also pertinent to mention here that greatest authority of Hindu mythology on
Sri Ramchandraji known in the recent history is that of Goswami Tulsidasji.
He had written the book on Sri Ramchandraji known as Sri Ram Charitra
Manas during the regime of Mughal Emperor Akbar who was the grandson
of Mughal Emperor Babar and it is said that Sri Goswami Tulsidasji had
composed the said Ram Charitra Manas at a place known as Datun Kund
situated at a distance of about one kilometre from Ayodhya in district
Faizabad and as such had there been any birth place of Sri Ramchandraji in
Ayodhya, Goswami Tulsidasji must have specifically mentioned about the
same in his Ram Charitra Manas and as a great devotee of Sri Ramchandraji
Goswami Tulsidasji cannot be expected to have skipped over or concealed or
kept quiet over such an important fact regarding the life history of Sri
Ramchandraji and had there been any iota of truth in the story of Sri Ram
Janam Bhoomi temple being there at Ayodhya at the site of the Babri Masjid
during the regime of Emperor Babar or prior thereto and had there been any
incident of demolition of any such temple and construction of Babri Masjid
over the same, Goswami Tulsidasji must have taken up this matter in the
Court (Darbar) of Emperor Akbar and Emperor Akbar must have undone the
alleged wrong and specially so when the Court of Akbar was full of
Advisors, councillors and ministers from Hindu community and his own
Queen was also Jodha Bai. It is also relevant to mention here that even the
location of present Ayodhya does not tally with the location of Ayodhya as
given in the Balimik Ramayan and this also creates doubt about there being
any place of birth of Sri Ramchandraji in the present Ayodhya situated in
district Faizabad. Ayodhya mentioned in the Balmiki Ramayan is said to be
situated at a distance of about 1-1/2 Yojana (equivalent to about 14-1/2
miles) from river Saryu flowing East to West which is presently running
quite adjacent to the present Aydhya from West to East.
It is also absolutely incorrect to say that there is any historical or other
evidence to the effect that Sri Ramchandrji had manifested himself in human
257
form at the place where the idols are presently kept in the mosque in
question.
It is also absolutely incorrect to say that the place known as Babri
Masjid has ever been called as Sri Ram Janam Bhoomi prior to December,
1949.
20. That the contents of para 20 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that there is no deity by
the name of Asthan Ram Janam Bhoomi and as a matter of fact there is no
said Asthan also within the premises of Babri Masjid.
It is also relevant to mention here that in 1885 Mahant Raghubar Das,
Mahant of Janam Asthan of Ayodhya, had filed a suit against the Secretary of
State for India in Council and Mohd. Asghar, Mutawalli of the said mosque
in the Court of Sub-Judge, Faizabad, in which a site plan had also been
annexed along with the plaint and in the said site plan the mosque in
question was specifically mentioned in the western side of the Chabutra in
respect whereof the said suit was filed for permission to erect temple over
the said Chabutra. In respect of the said Chabutra the said Mahant Raghubar
Das had stated that the temple of Janam Bhoomi was desired to be
constructed over there, but the said Mahant could not succeed even in that
suit which was ultimately dismissed on 24
th
December, 1885 by the Sub-
Judge, Faizabad, and the appeal filed against the said judgement and decree
dated 24
th
December 1885 was also dismissed by the District Judge,
Faizabad, and the Second Appeal filed against the same had also been
dismissed by the Judicial Commissioner of Avadh. The aforesaid suit was
filed by Mahant Raghubar Das on behalf of other Mahants and Hindus of
Ayodhya and Faizabad etc. As such the plaintiffs cannot claim any portion
of the Babri Masjid to have been defied or having become a juridical
personality by the name of Asthan Ram Janam Bhoomi and specially so
when neither there has been any installation of deity and nor any
personification of the same in accordance with the tenets of Hindu religion
or law. It is further submitted that the plaintiffs are even estopped from
claiming the mosque in question as the Janam Bhoomi of Sri Ram Chandraji
as the plaintiffs' predecessors and specially Mahant Raghubar Das had
confined his claim to the Chabutra (platform) of 17' x 21 ft. outside the said
258
mosque as being Janam Asthan of Ram Chandraji and also because there
already exists another temple known as Janam Asthan temple situate at a
distance of less than 100 yards only from Babri Masjid and on its northern
side.
21. That the contents of para 21 of the plaint are also denied as stated and
in reply thereto it is submitted that the mythological concept of incarnation
etc. is not at all relevant for the purposes of the instant case. However, the
averments of the para under reply are not correct and consistent with Hindu
Law and the same being a matter of legal nature it will be dealt at the
appropriate stage. It is, however, relevant to mention here that neither there
has been any installation of any deity within the premises in dispute and nor
the ritual of Pranpratishtha in respect of any idol surreptitiously and
stealthily kept inside the mosque in question was ever performed or
observed; as such there arises no question of divine spirit having been
created or manifested in the idol forcibly kept in the mosque in question in
the night of 22nd-23
rd
December, 1949 about which an F.I.R. was lodged at
the Police Station Ayodhya in the morning of 23.12.1949 by a Hindu Officer
of the Police Station himself who had mentioned in the said F.I.R. that some
mischievous element had kept the said idol in the preceding night in a
stealthy and surreptitiously manner by sheer use of force and non the basis of
the said F.I.R. a Criminal case had also been registered against those persons
who had kept the said idol and subsequently proceedings under Section 145
Cr.P.C. had been drawn by the Magistrate and as a result of the communal
tension arising and developing on account of the aforesaid incident or
keeping the idol in the mosque, the said building had been attached on
29.12.1949 and Suprudgar/Receiver for the care and custody of the said
building had also been appointed who had drawn up a scheme of
Management and the same was submitted on 5.1.1950.
22. That the contents of para 22 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that the spirit of Sri Ram
Chandraji as the divine child cannot be said to reside at any place or in any
idol kept inside the said mosque and as such no idol or place of the said
mosque can be said to be deity. It is further submitted that there is no
comparison of Kedarnath or Vishnupad temple of Gaya with the Babri
259
Masjid. It is also relevant to mention here that there is no Charan or Sita
Rasoi within the premises of Babri Masjid and the place known as Sita Rasoi
is situated outside the premises of the said mosque. It is also incorrect to say
that Pooja in any form was ever performed inside the mosque in question at
any time prior to 23.12.1949.
23. That the contents of para 23 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that there has never been
any temple of Maharaja Vikramadittya's time at the site of the Babri Masjid
and no authentic books of history and no public record of any unimpeachable
authenticity can be cited in this respect. It is also incorrect to say that the
mosque in question was raised at the site of any temple or after destroying
any temple by force and arms. It is also not correct to say that the material
used in the construction of the said mosque was almost all of it taken from
any temple, and it is also incorrect to say that the pillars of the said mosque
were wrought out of Kasauti or touchstone with figures of Hindu Gods and
Goddesses carved on them. The fact is that such pillars are available at some
other places also. It is also absolutely false and baseless to suggest that any
resistance was put by the Hindus or any battle was fought from time to time
to prevent the construction of the mosque. Regarding the shape of the
structure of the mosque it is submitted that there is no requirement of any
specific type of construction or structure for any mosque and existence of
minaretes or or domes is not at all required for any mosque and so also there
is no necessity of any place for storage of water for VAZOO for any mosque
although in the close vicinity of Babri Masjid a well is very much there for
taking out water for the purposes of Vazoo. There are several other mosques
in India and even in Faizabad and Lucknow, which do not have minarets and
even domes and one such mosque is situated within the premises of Dargah
Hazrat Jahangir Samdani in Kachaucha Shareef district-Faizabad in which
there are no domes or minaretes and one such mosque exists in the district of
Lucknow in which there are five domes but no minaretes. It is also incorrect
to say that any life was lost in any battle fought in respect of Babri Masjid
and no battle in respect thereto had taken place till 1885.
It is also incorrect to say that the building of Babri Masjid raised
during Babar's time had ever remained in the possession and control of
260
Hindus. The citation of Faizabad gazetteer given in the para under reply is
based on hearsay information and the same cannot be said to be true and
correct or in any way a reliable piece of evidence.
It is also relevant to mention here that bitterness had been created
between Hindus and Muslims in respect of the mosque situated inside
Hanuman Garhi and it was on the report of the demolition of that mosque
that some Muslims had tried to take up arms under the command of Maulvi
Ameer Ali, but they could not succeed on account of the army of the Nawab
as well as British army posted for facing their challenge. The expedition of
Maulvi Ameer Ali had, therefore, no concern or connection with the Babri
Masjid and the observations of the contrary in the Gazetteer of Faizabad and
Barabanki are, therefore, totally incorrect and no reliance can be placed upon
the same. It is also incorrect to say that at any point of time Hindus and
Muslims both used to worship in the same building known as Babri Masjid.
Had there been any such practice of worshipping by both the
communities inside the Babri Masjid, mention of the same should have been
made in the plaint of the Original Suit No. 61/280 of 1885: Mahant
Raghubar Das Versus Secretary of State & another, decided on 14.12.85 by
the Sub-Judge, Faizabad.
24. That the contents of para 24 of the plaint are also incorrect and hence
denied as stated. At no point of time there ever existed any temple at the site
of the Babri Masjid and it is absolutely incorrect to say that the said mosque
was constructed, after destroying any ancient temple, with the material of the
alleged temple. The mosque in question has always been used as a mosque
since its construction during the regime of Emperor Babar.
The contents of the sub-paras (A) to (G) of the para under reply are
also incorrect and the same are also denied as stated:
(A) That the contents of para 24(A) of the plaint are also denied as stated.
The quotation of Quran is totally out of context and the same is not even
correct and complete.
(B) That the contents of para 24(B) of the plaint are also incorrect and
hence denied as stated. The land in question undoubtedly belonged to the
state when the Mosque in question was constructed on behalf of the State
and as such it cannot be said that it could not be dedicated for the purposes
261
of the mosque. Emperor Babar was a Sunni Muslim and the vacant land on
which the Babri Masjid was built lay in his State territory and did not belong
to anyone and it could very well be used by his officers for the purposes of
the mosque and specially so when the Emperor Babar himself consented and
gave approval for the construction of the said mosque. It is absolutely
incorrect to say that the site in question was the site of any temple and any
temple was destroyed by Meer Baqi. Had anysuch incident of demolition of
any temple taken place, the same must have been reported in any authentic
book of Mughal history but no such incident finds mention in any authentic
book of history and as such it is absolutely false and concocted to suggest
that the mosque in question was constructed at the site of any temple.
(C ) That the contents of para 24(C) of the Plaint are also absolutely false
and incorrect and hence denied as stated. No temple had ever existed at the
site of the said mosque and there is no question of vesting of the site in any
alleged deity. Similarly no Asthan and deity could be said to have ever
existed over there and as such there arises no question of the possession of
any deity or Asthan on the site in question. The alleged Ram Chabutra has
also not remained in existence since the time of Babar out rather the same is
the creation of around 1857 period.
It is also incorrect to say that the entry of the mosque could not be
possible except after passing through any place of Hindu worship. The
concept of the mosque has also been wrongly and incorrectly described in
the para under reply.
(D) That the contents of para 24(D) of the plaint are also incorrect and
hence denied as stated. There is no such requirement for the construction of
any mosque- that the same should be built in a place of peace and quiet and
near to a place where there is a sizeable muslim population. It is also
incorrect to say that the mosque cannot be built in a place which is
surrounded by temples, where the sound of music and Konch shell, Ghanta
Gharyal disturbs the peace and quiet of the place.
(E) That the contents of para 24(E) of the plaint are also incorrect and
hence denied as stated and in reply thereto it is submitted that there is no
specific shape of building of a mosque and there is no requirement of
existence of any minaretes in a mosque. It is also not required that there
262
should be any specific place or minaretes for calling the Azan. The
quotations given in the para under reply are also irrelevant and out of context
and the same do not even present a correct law.
(F) That the contents of para 24(F) of the plaint are also incorrect and
hence denied as stated. Whatever was mentioned in the plaint of Suit No. 12
of 1961 would appear from the copy of the same and the averments of the
Faizabad Gazetteer referred to in the para under reply are neither authentic
and nor correct. It is also incorrect to say that there were no graves near the
building of the said mosque. The fact is that many graves existing in the
Ganj-Shaheedan have now been mostly demolished by the Bairagis and that
is why they are not now visible. It is reiterated that the mosque in question
has been used for offering regular 5 time prayers up to 22
nd
December, 1949
and even Friday prayers have been offered in the same till 16
th
December,
1949 and the Imam of the said mosque who used to lead the prayers even in
1949 namely Maulvi Abdul Ghaffar son of late Mohd. Abdul Qadir. He had
even filed his affidavit in writ petition No. 746 of 1986 : Mohd. Hashim Vs.
District Judge, Faizabad and others, which is still pending in this Hon'ble
Court.
(G) That the contents of para 24(G) of the plaint are also incorrect and
hence denied as stated and in reply thereto it is, submitted that there is a
pucca well also outside the mosque in question for taking out water for the
purposes of Vazoo.
(25) That the contents of para 25 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that there never remained
any deity in the mosque in question. It is also incorrect to say that no valid
waqf of the mosque was ever created and the reference of command of law
made in the para under reply is also incorrect and misleading.
It further submitted that the muslims possession has remained
uninterrupted and continuous of the mosque in question since its
construction and up to 22.12.1949 (and as such the alleged right or title, if
any, of anyone else over the same has ceased to exist and the alleged right
and title shall be deemed to have extinguished) on account of the
uninterrupted and adverse possession of the muslims over the mosque in
question for more than 420 years.
263
(26) That the contents of para 26 of the plaint are also incorrect and hence
denied as stated and in reply there to it is submitted that regular 5-time
prayers used to be offered in the said mosque up to 22.12.1949 and Friday
prayers were also offered up to 16.12.1949 and on 23.12.1949 when the
muslims led by the Imam of the said mosque had approached the authorities
of the district to offer Friday prayers in the said mosque they were persuaded
to offer Friday prayer on that date in some other mosque with the specific
assurance that they will be allowed to offer Friday prayers in the mosque in
question on the next Friday falling on 30.12.1949. But before that the
mosque in question had been attached by the Magistrate under Section 145
Cr.P.C. and since then the attachment of the said mosque is continuing and
till now the said mosque is continuing in the custody of the Court.
It is further submitted that although communal riot of 1934 had
nothing to do with the mosque in question but still some Bairagees had
damaged a portion of the mosque and as such the District Magistrate of
Faizabad had got the said damaged portion of the mosque repaired through a
muslim contractor soon thereafter.
It is also incorrect to say that after the said repairs no one had dared to
offer Namaz in the said mosque. As the mosque in question was very much
in use there was no occasion for the Waqf Board to take any action or steps
for the establishment of the building as a mosque.
It is also absolutely incorrect to say that there was no Mutawalli or
Moazzin or Imam or Khatib or Khadim of the said mosque. The name of the
mutawalli of the said mosque finds mention even in the Government Gazette
of 1944 declaring the said mosque as a waqf and even at present there is a
Committee of Management of the said mosque appointed by the U.P. Sunni
Central Board of Waqf (answering defendant).
(27) That the contents of para 27 of the plaint are also incorrect and hence
denied as stated. The graves existing near the Babri Masjid were dug up and
levelled mainly after 1949 and not just after Independence and in the night of
22
nd
-23
rd
December, 1949 some Bairagees had forcibly and illegally entered
into the mosque and had kept the idol below the middle dome of the mosque
about which an F.I.R. was lodged at Police Station, Ayodhya in the morning
of 23
rd
December, 1949 and some of the culprits were even named in the
264
FIR. It is absolutely incorrect to say that the idol of Bhagwan Sri Ram
Chandraji was installed with due ceremony in the Central dome of the
building in the 'aforesaid' night. It is also incorrect to say that any
purification of the alleged Asthan was done by Akhand Ramayan and Jap by
thousands of persons all over the area.
(28) That the contents of para 28 of the plaint are also incorrect and hence
denied as stated. It is absolutely incorrect to say that no muslims have been
residing near the Babri Masjid and as such no resistance was offered. The
fact is that muslims reside not only behind the mosque but also in the
localities situated in the southern and eastern side of the mosque. But no one
being aware of the aforesaid keeping of idols in the late hours of the night
could offer resistance at that time and when the muslims had come to know
about the same on 23
rd
December, 1949, they had collected over the spit and
had insisted for offering Friday prayers in the said mosque, but the district
authorities present over there had persuaded the muslims not to offer prayer
on that date and they had assured the muslims that the idols stealthily kept in
the mosque would be removed by the next Friday and as such the muslims
could offer prayer from the next Friday. In this view of the matter the
muslims acted with restraint and as law abiding citizens and when the
mosque was attached on 29
th
December, 1949, the muslims had started
pursuing legal remedies. The said proceedings had started under section 145
Cr.P.C. and have not been dropped so far, but rather the same were stopped
and consigned to record on account of the filing of the Civil suit and the
same will be revived after the decision of the civil suit.
It is also relevant to mention here that the aforesaid act of keeping the
idols in a stealthy manner was done with the connivance of some district
officials and that is why the said idols had not been removed by those
officials specially by the then District Magistrate Sri K.K. Nayyar in spite of
the fact that the then Prime Minister, Sri Jawahar Lal Nehru as well as the
then Chief Minister Pandit Govind Ballabh Pant had severally asked the
District Magistrate Faizabad to get the idols removed from the mosque. In
this respect one Sri Akshay Brahmchari, the then President of the District
Congress Committee, Faizabad, had even undertaken fast in order to press
the demand for the removal of the idols from the said mosque but on the
265
assurance given by the then Chief Minister Pt. Govind Ballabh Pant, he had
broken his fast.
It is also incorrect to say that the Magistrate who had initiated
proceedings under Section 145 Cr.P.C. had not considered the dispute in
question to be a dispute between Hindus and Muslims.
It is also incorrect to say that the said proceedings under Section 145
Cr.P.C. had been dropped on 30
th
July, 1953 with the finding that there was
no apprehension of breach of peace and order any longer.
(29) That the contents of para 29 of the plaint are also incorrect and hence
denied as stated. There was no deity in the eyes of law in the said mosque
and hence there was no occasion for the impleadment of the same either in
the suit filed by the Hindus or in the suit filed by the muslims; the idols kept
in the mosque could not be treated as deities and as such there arose no
question to interfere with the so-called possession of any alleged deity.
Moreover there being a restraint order of Injunction against the removal of
the idols, the said idols could not be removed during the pendency of the
suits. The possession of the building in question has remained with the
Supurdgar/Receiver right from 5.1.1950 and as such no one else could be
said to have been in actual and physical possession over the mosque in
question since after 5.1.1950 up till now. It is also incorrect to say that the
Receiver could be said to have acted like a onebiat. As there are no deities in
possession of the site in question there arose no question of extinguishment
of the rights of the muslims over the mosque in question on account of the
alleged long and adverse possession.
(30) That the contents of para 30 of the plaint are also incorrect and hence
denied as stated. Neither the Hindu public could be said to have dreamt of
establishing Ram Raj after freedom and nor it could be said that the
restoring of the alleged Janam Asthan to its imaginary glory has ever been
the National aspiration of Mahatma Gandhiji. Mahatma Gandhi had never
considered or treated Babri Masjid to be Janam Asthan of Sri Ram Chandraji
and that is why his followers and disciples had never supported the act of
keeping idols in the said mosque but rather they had treated the forcible act
of keeping the idols in the mosque with the contempt it deserved. Sri
Askshay Brahmchari was a disciple of Mahatma Gandhi and that is why he
266
had undertaken fast in order to press his demand for the removal of the idols
from the mosque. It is, therefore, absolutely incorrect to say that the
devotees of Sri Ram Chandraji are agitating for the construction of a grand
temple at the site of the said mosque. As a matter of fact this demand is
being made by some disgruntled elements having their vested interest in
making such demand and a large number of persons have been mislead to
believe that as if the said Babri Masjid is the birthplace of Sri Ramchandraji.
It is further submitted that there is absolutely no justification for the
present campaign being carried on for starting construction of Ram Janam
Bhoomi temple at the site of the Babri Majid with effect from 9.11.1989.
There is no question of construction of any such temple at the site of the
mosque and muslims will never permit any such attempt being successful.
The averments of the para under reply are most unwarranted and amount to
incitement of an offence and also amount to contempt as the same has the
effect of undermining the authority of the Court.
(31) That the contents of para 31 of the plaint are also incorrect and hence
denied as stated and in reply thereto it is submitted that there being no deity
in the said mosque, there was no question of impleading the same as party.
It is also incorrect to say that the four suits pending for the last several years
were in any way insufficient for adjudication of the controversy in question.
It is also incorrect to say that the pendency of the aforesaid suits could
present any hindrance in the making of declaration about the nature and
character of the building in question. It is also incorrect to say that the
declaration sought in the Regular suit No. 12 of 1961 was in any way
frivolous and it is also incorrect to say that the plaintiffs of Regular Suit No.
12 of 1961 could not represent the entire muslim community. It is also
incorrect to say that there are wide ranging differences amongst Shias and
Sunni sects of the muslims in respect of the mosque in question. It is also
incorrect to say that the defendants no. 1 to 4 and other defendants who have
been impleaded later on in Regular Suit No. 12 of 1961, were not competent
or capable of representing the entire Hindu community. In any case several
other Hindus apart from defendants no. 1 to 4 had got themselves impleaded
after publication of notice of the representative suit and the plaintiff no. 3
having not impleaded himself in the aforesaid Regular Suit No. 12 of 1961 at
267
the proper time, he could not now say that he was the next friend of the deity
and that he could file a fresh suit in respect of the subject matter in issue. It
is also incorrect to say that the plaintiff no. 3 was the next friend of Sri Ram
Chandraji. Legally speaking the plaintiff No. 3 has never remained in any
way concerned with the management and pooja etc. of the idols in question
and as such he could in no way claim himself to be the next friend of Sri
Ram Chandraji.
It is also relevant to mention here that the Shia sect has nothing to do
with the waqf of the mosque in question and this matter has already been
adjudicated upon by the Civil Judge, Faizabad in 1946 and it has been finally
settled that the Babri Masjid is a Sunni Waqf.
(32) That the contents of para 32 of the plaint are also incorrect and hence
denied as stated. It is incorrect to say that the mutwallis of the mosque in
question were Shia muslims or the descendants of Mir Baqi. The answering
defendant is advised to state that the judgement and decree dated 30
th
March,
1946 of the Court of the Civil Judge, Faizabad passed in Suit No. 27 of 1945
is binding upon the parties and controversy about the Shia or Sunni nature of
the waqf in question has been set at rest by the aforesaid judgement and the
said judgement has all along been relied upon by the Muslim parties in the
matter in issue. It is, however, relevant to mention here that there is no legal
bar for appointment of Shia Mutawalli of a Sunni Waqf; so also a Sunni
Muslim can very well be appointed as mutawalli of a Shia Waqf.
It is pertinent to mention here that the person, who constructs the
mosque or under whose supervision a mosque is constructed does not
become a Wakif of the said mosque ipso facto and specially so when an
officer or General of the Army of a king constructs a mosque on behalf of the
King or Emperor the waqf is said to have been created by the Emperor and
not by the officer. It is also incorrect to say that any Mutwalli of the waqf in
question had not submitted to the jurisdiction of the Sunni Waqf Board after
the creation of the said Board under the Waqf Act of 1936. From the record
of the Board it is not borne out that Sri Jawwad husain was ever recorded as
mutawalli of the said waqf and as such Jawwad Husain has been wrongly
impleaded as a defendant in the instant case. So also the defendants No. 22,
24 and 25 have also been wrongly impleaded in the instant suit and their
268
impleadment appears to be mala fide and just to create a controversy about
the nature of the Waqf. The suit is, therefore bad for misjoinder of parties.
(33) That the contents of para 33 of the plaint are also incorrect and hence
denied as stated. Neither there is any Presiding Deity of plaintiff No. 1 and
nor there are other deities over the premises in question and it is also
incorrect to say that the so-called Charan (footsteps) and Sita Rasoee etc.
constitute one integral complex and have a single identity. It is also incorrect
to say that the claim of the muslims is confined to the building and the area
enclosed within inner boundary wall. The area being claimed by the muslims
is mentioned very specifically in the plaint of Regular Suit No. 12 of 1961
and the description of the same can in no way be said to be vague and
undefined. It is also incorrect to say that there are no graves in the vicinity
of the said mosque for the last fifty years. It is not at all admitted that the
defendant No. 3 is the present mutawalli of the Babri Masjid since before
1948. At present the said mosque has got a Managing Committee appointed
by the answering defendant. It is also incorrect to say that only a mutwalli of
the mosque can sue for its possession. The Board is a statutory Board having
been created by the U.P. Muslim Waqf Act, 1936 and now continuing under
the U.P. Muslim Waqf Act, 1960. The Waqf Act of 1960 was also passed to
provide for better governance and administration and supervision of the
Waqfs in Uttar Pradesh, and under Section 19 of the said Waqf Act, 1960 the
Board has got the power of general supervision of all the Waqfs and it is the
duty of the Board to do all things reasonable or necessary to ensure that the
Waqfs under its superintendence are properly maintained, controlled and
administered and under Section 19(2)(q), the Board has also been conferred
with the power to institute and defend suit and proceedings in any Court of
law relating to all waqfs. It is, therefore, absolutely incorrect to say that the
Board or other muslims associated with the management and administration
of the mosque in question or offering Namaz therein could not file the suit
for possession registered as Regular Suit No. 12 of 1961.
(34) That the contents of para 34 of the plaint are also incorrect and hence
denied as stated. It is also incorrect to say that Prince Anjum Qudar,
defendant No. 24 or any other sensible and sizeable Section of the muslim
community does not approve of the course adopted by the defendants no. 4
269
to 6. It is also incorrect to say that any responsible muslim has ever made
any suggestion for the removal of the mosque to any other place. The
concept of the removal of the structure of the mosque to any other place is
quite foreign to the Muslim law and there is no possibility of any such course
being adopted by the muslims in respect of the mosque in question. The
concept of the mosque is that the entire area below as well as above the
portion of the mosque remains dedicated to God Almighty and as such it is
not the construction or structure of a mosque alone which is important but
more important is the land on which the mosque stands constructed because
the land also stands dedicated to God Almighty and the same cannot be
removed. As such even if any person bearing the muslim name makes any
suggestion of removal of the mosque to any other place, the same is of no
value and significance as the principles of Islamic law do not permit any
such removal. It is also preposturous to suggest that the building in question
will have to be demolished for the construction of a temple in place thereof.
While making such a statement the plaintiffs do not appear to be conscious
about the grave and disastrous consequences that may follow, if any such
proposal is given effect to. The muslims will never tolerate demolition of
the mosque for the construction of a temple at the site thereof.
(35) That the contents of para 35 of the plaint are quite vague and
ambiguous and also incorrect and hence denied as stated. There can be no
dispute to the averments that all human beings including the muslims and
Hindus are the creation of one and the same God and the plaintiffs of
Regular Suit No. 12 of 1961 as well as other muslims also believe in the
policy of living in amity and goodwill with the members of all communities
and religious denomination. That does not mean that the gesture of goodwill
and amity should be shown to such persons who are bent upon demolishing
the mosque. It is also incorrect to say that the site in question has got
anything to do with the place of birth of Sri Ramchandraji and as such the
same has got no significance of the alleged Asthan Sri Ramchandra Janam
Bhoomi. The entire propaganda and publicity being carried out by the
Vishwa Hindu Parishad and Ram Janam Bhoomi Yagya Samiti and their
associates and allied bodies in this respect is nothing but sheer concoction
and this is being done with the vested interests and political ambitions and as
270
such it is not at all difficult for the plaintiffs of this suit as well as for the
defendants of Regular Suit No. 12 of 1961 to abondon their claim over the
mosque in question and to construct a magnificent and grand temple of Sri
Ramchandraji at any other free site which may not be the property of any
other person or community. It is also incorrect to say that under the tenets of
Muslim law the mosque can be shifted under certain circumstances.
(36) That the contents of para 36 of the plaint are also incorrect and hence
denied as stated. No cause of action ever accrued to the plaintiffs to file the
instant suit as they have never remained associated with the management or
administration of the property in question. In any case if any cause of action
in respect of the property in suit can be said to have accrued to the plaintiff
No. 3, the same must be deemed to have accrued in December, 1949 when
the property in question was attached and when the muslims had
categorically denied the alleged claim of the Hindus to perform pooja in the
mosque in question and that being so the instant suit is highly time barred. It
is also relevant to mention here that the plaintiff no. 3 was required to give
the specific date, month and year since when the alleged cause of action is
said to have accrued and no such description having been given, the
averments of the cause of action are incomplete and defective and the plaint
is liable to be rejected on account of there being no cause of action as per
averments of the plaint.
(37) That the contents of para 37 of the plaint are not disputed.
(38) That the contents of para 38 of the plaint are also incorrect and hence
denied as stated for want of requisite details. Neither the suit has been
properly valued and nor the court fees paid is sufficient.
(39) That the contents of para 39 of the Plaint are also incorrect and hence
denied as stated. The plaintiffs are not entitled for any relief claimed in the
para under reply and the suit is liable to be dismissed with special costs.
(40) That apart from the averments made above, attention of this Hon'ble
Court is invited to the Additional Pleas in support of the averments made
above.
Additional Pleas
41. That the instant suit is not at all maintainable and the plaintiffs no. 1
and 2 are neither deities and nor they can be treated as juristic person and the
271
plaintiff no. 3 cannot claim himself to be the next friend of Bhagwan Sri
Ram. As such none of the plaintiffs have any right to file the instant suit.
42. That the instant suit is highly belated and the same is barred by the law
of limitation and as such the same is liable to be dismissed on this account
alone.
43. That the property in suit has also not been properly described and as
such the instant suit suffers for want of material facts and particulars and on
this account also the plaint is liable to be rejected.
44. That as the relief in the instant suit has been claimed against all the
defendants including the Government and its officers arrayed as defendants
no. 7 to 10, the suit could not be filed without giving notice under Section 80
of the Code of Civil Procedure to the said defendants no. 7 to 10 and no such
notice having been given and there being no averments in the plaint in this
respect, the suit is liable to be dismissed on this account also and in any case
the plaint is liable to be rejected for want of statutory notice.
45. That as the subject matter of the instant suit is a waqf property and
stands registered as a waqf in the Register of Waqf maintained by the Sunni
Waqf Board under Section 30 of the Waqf Act and a Gazette notification in
respect thereto has also been issued by the State government in 1944 and the
same stands recorded as a mosque even in the revenue record and other
government records and the same is even accepted as a mosque by the State
Government and its officers in the written statements filed in Regular Suit
No. 2 of 1950 as well as in Regular Suit No. 25 of 1950, the instant suit
could not be instituted against the answering defendants until the expiration
of two months next after notice, in writing, had been delivered or left at the
office of the Board as per requirement of Section 65 of the U.P. Muslim
Waqf Act, 1960 and no such notice having been given to the answering
defendants by the plaintiffs, the suit is not maintainable and is liable to be
dismissed.
(46) That even the reports of the Archeological experts have been to the
effect that there appear to be no symptoms of human habitation in the present
Ayodhya of more than 700 B.C. and also there appear to be no symptoms of
any Fort or Palace or Old temple being there at the site of the Babri Masjid.
47. That the suit is barred by the provisions of Section 34 of the Specific
272
Relief Act also.
48. That the suit is bad for misjoinder of parties and also because of non-
joinder of necessary parties.
49. That the instant suit is absolutely frivolous, and vexatious and the
same deserves to be dismissed with Special Costs.
*****************
Dated: Lucknow
26/29.8.1989 Sd/-
Defendant No. 4
Z. Zilani
Advocate
Counsel for the Defendant No. 4.
273
In the Hon'ble High Court of Judicature at Allahabad Lucknow Bench
Lucknow
High Court Suit No. 05 of 1989
Regular Suit No. 236 of 1989
Full party name to be typed.
Written Statement under Order 8 Rule 1 C.P.C. on behalf of Defendant
No. 5
In O.O.S. No. 05 of 1989
F.F. 07.08.89
1. That the contents of para 1 of plaint are denied. Neither the plaintiff
no. 1 nor plaintiff no. 2 are the deities within the meaning of Hindu Law nor
they are juristic person to file the suit. Remaining contents of para are also
denied. Kindly see additional pleas.
2. That the contents of para 2 of the plaint are denied. The area and the
places indicated in Annexures No. 1,2, and 3 of the plaint are neither Ram
Janam Bhoomi nor Ram Janam Asthan. However, it is evident that there
exists a mosque known as Babri Masjid, the existence of this mosque is
established by record, Historic, Judicial and Revenue. The filing of the suit
no. 2 of 1950 are not denied. However, the suit is wholly misconceived.
The plaintiff of suit no. 2 of 1950 had no legal right and the suit is
misconceived. (See the additional pleas).
3. That in reply to the contents of para 3 of the plaint, only the filing of
the suit no.2 of 1950 is admittedly but not the contents of the plaint of the
said suit. The remaining contents of para under reply are denied.
(Kindly see additional pleas).
4. That in reply to the contents of para 4 of the plaint it may be pointed
out that relief claimed in suit no. 2 of 1950 is wholly misconceived and
legally not sustainable, remaining contents of this para are denied.
(Kindly see additional pleas).
5. That in reply to the contents of para 5 of the plaint the filing of suit
No. 25 of 1950 is admitted but the contents of the plaint of the said suit are
denied. Remaining contents of the para under reply are also denied.
(Kindly see additional pleas).
6. That in reply to the contents of para 6 of the plaint the filing of suit
No. 26 of 1959 is admitted while the allegations of the plaint of the said suit
are denied, the initiation of the proceeding under Section 145 Cr.P.C. and the
274
appointment of the receiver, which still continuous is also not denied.
However, remaining contents of para under reply are denied.
(Kindly see additional pleas).
7. That in reply to the contents of para 7 of the plaint, the suit No. 12 of
1961 including its contents are admitted. The Sunni Central Board of Waqf
U.P. is the rightful Public Authority having right to have possession of the
entire complex of Babri Masjid and also has a right to maintain it incouding
the graveyard known as 'Ganj Sahheedan'. The claim of U.P. Sunni Central
Board of Waqf has already been adjudicated in its favour.
(Kindly see additional pleas).
8. That in reply to the contents of para 8 of the plaint, it may be pointed
out that the order dated 8
th
August 1962 was rightly passed. Ramaining
contents of para under reply are not admitted as framed.
9. That in reply to the contents of para 9 of the plaint, it may be pointed
out that the averments relate to the judicial record, and hence are not denied.
10. That in reply to the contents of para 10 of the plaint it may be pointed
out that at the time of granting of the said injunction the answering defendant
was not a party to suit No.2 of 1950. The said suit was also not in the
representative capacity. Hence the answering defendant is not bound from
the said interim injunction. The answering defendant is advised to state that
the interim injunction order dated 16.1.1950 as modified on 19.1.1950 was
also beyond the scope of suit No.2 of 1950. Remaining contents of the para
under reply are also denied. (See additional pleas).
11. That in reply to the contents of para 11 of the plaint it may be pointed
out that pooja etc., even in the restricted way, was wrongly permitted.
However, the appointment of receiver is not disputed. (Kindly see additional
pleas)
12. That the contents of para 12 of the plaint are denied. The averments of
para under reply, as regards performing religious ceremonies during the
pendency of the suit is also incorrect and denied.
(Kindly see additional pleas etc.)
13. That the contents of para 13 of the plaint are not admitted as framed,
answering defendant is advised to state that the order of District Judge dated
1.2.1986 is wholly illegal and is also void, being in utter violation of the
275
principle of natural justice. However, the said order has been challenged in
two writ petitions, vide W.P. No.746/86 and W.P.No.3106 of 1986. (Kindly
see additional pleas etc.)
14. That the contents of para 14 of the plaint are denied. There is no deity
in the premises in dispute within the meaning and concept of Hindu Law and
as such there is no question of devotees etc. The averments pertaining to the
money received by the receiver are denied for want of definite knowledge.
15. That the contents of para 15 of the plaint are denied. There is no
question of construction of any temple over the site in question. Answering
defendant and his co-religionist have a right to resist any such attempt.
There is no question of any management of the so called temple. The
premises is a mosque and muslims have a right to offer namaz in it and U.P.
Sunni Central Board of Waqf has a right to supervise and manage it. Neither
Jagadaguru has any right or locus in the matter and nor he can execute any
deed legally in respect of the premises in question. The answering defendant
is not aware of the religious sect of the so called vairagies of Ayodhya.
(Kindly see additional pleas also.)
16. That in view of the submissions made above the contents of para 16 of
the plaint are vehemently denied. The so called trust deed is a nullity. It has
no legal basis and the same has no relevance in the present controversy. (see
additional pleas ).
17. That the contents of para 17 of the plaint are vehemently denied. The
so called 'Nyas' has no locus in the matter, nor it can be a party to any suit.
(Kindly see additional pleas also.)
18. That the contents of para 18 of the plaint are vehemently denied. No
other suit is needed. The present suit is also barred by limitation. The
averments of the para under reply have been made with a malafide intention,
by which the plaintiff No.3 only wants to boost his own status, while he has
no locus; neither there is any deity having a juristic personality (or juristic
person) and nor the plaintiff No.3 is a next friend of any deity and the only
persons who have a right to worship in the premises in dispute, i.e the
mosque, are the muslims. (Kindly see additional pleas).
19. That the contents of para 19 of the plaint are vehemently denied.
There is no evidence, historic or otherwise, to indicate that Sri Ram Chandra
276
Ji was born there. This all is a later concoction and there is no question of
devotees. (see additional pleas also.)
20. That the contents of para 20 of the plaint are vehemently denied. As
there is no deity , there is no question of any devotee and there is no question
of any asthan also. It is an innovation even in Hindu Law; the answering
defendant is advised to state that the so called asthan can not be treated as a
juristic person and as such the suit is not maintainable on this court also.
(Kindly see additional pleas).
21. That the contents of para 21 of the plaint are vehemently denied, the
concepts of the various schools of though of Hindu religion are not relevant
to the controversy before this Hon'ble Court. (see additional pleas.)
22. That the contents of para 22 of the plaint are denied, various
philosophers, fiction and concept of Hindu religion are not relevant for the
controversy to be adjudicated in the 4 suits referred to above. Hence the
averments of the para under reply are only an effort to introduce new
questions not legal but philosophical and spiritual, which are not relevant.
(see additional pleas).
23. That the contents of para 23 of the plaint are denied, the narration of
history in the plaint is false and baseless; no authentic book of history has
been referred in the plaint. The premises has always been a mosque since its
construction in sixteenth century, it has always been used by the muslims for
offering namaz and for no other purposes. Remark in the gazette is no
authentic record of history. It is only a generalised observation, the Gazette
also does not make any reference of any authentic history or record. The
pillars are not of Kasauti. However, it is not relevant as the fact remains that
it is a mosque, and has always been used as a mosque and it is wholly
incorrect that anybody else other than muslims worshipped in the building
which is called Babri Masjid. The narration of history by the plaintiff is
baseless and false. There is no evidence of the demolition of any temple for
the construction of this mosque. (see additional pleas).
24. That the contents of para 24 of the plaint are vehemently denied, the
quotation from Holy Quran has been incorrectly quoted and the same is out
of context. There is no evidence of demolition of any temple. The contents
of sub-paras are also denied, on the basis of judicial records and other
277
evidence, it is clear that the premises in question has always been a mosque
in which muslim had been offering regular namaz upto 22
nd
December, 1949.
No specific shape or specific design has been prescribed for the mosque, in
Islam. The shapes and architectural design of the mosque vary in different
parts of the world and even in India. The Ganj-e-Shahidan also belongs to
muslims and vests in God Almighty. The plaintiff has misrepresented about
the contents of suit No.12 of 1961. The claim and the contents are clear in
the plaint of suit No.12 of 1961, there is also a pucca well outside the
mosque for 'vazoo'.
(Kindly see additional pleas also.)
25. That the contents of para 25 of the plaint are denied, the building has
always been a mosque. In the night of 22/23 December 1949 some
mischievous elements forcibly entered into the mosque and surreptitiously
and stealthily kept the idol, the details of which have been narrated in the
F.I.R. lodged at the Police Station, Ayodhya in the morning of 23
rd
December, 1949. A criminal case was also registered against several persons
on the basis of said F.I.R. and a report was submitted to the Magistrate and
the proceeding under Section 145 Cr.P.C. were initiated and the premises
was attached and the attachment continues.
( see additional pleas ).
26. That the contents of para 26 of the plaint are vehemently denied. The
building known as Babri Masjid has always been in use as a mosque and the
muslims have offered namaz in it since its construction till 22
nd
December,
1949. Some of those who offered namaz in it are still available. Some part
of the mosque was damaged in the communal riot of 1934 and the same was
repaired soon thereafter. The threat contained in the para under reply is most
unwarranted. There was a litigation between Shia and Sunni Waqf Boards
and in 1946 it was decided in favour of Sunni Waqf Board. The mosque is a
Sunni Waqf and there was an Imam as well as a mutawalli of the said
mosque. The averments in the para under reply are wholly incorrect and
false.
(See additional pleas).
27. That the contents of para 27 of the plaint are vehemently denied. As
narrated in the foregoing paragraphs, some persons between the night of
278
22/23
rd
December, 1949, illegally entered into the mosque about which F.I.R.
was lodged at the police Station, Ayodhya in the morning of 23
rd
December
1949, some of the culprits were named in the F.I.R. and on that basis the
proceedings under Section 145 Cr.P.C. were initiated and the mosque was
attached, the attachment continues; there was no so called ceremony nor any
supernatural happening.
(Kindly see additional pleas).
28. That the contents of para 28 of the plaint are vehemently denied. It is
incorrect that muslims do not live nearby. They do live there but the
muslims were not in a position to prevent the aforesaid illegal act done with
the connivance of the local administration. The Muslims acted as the law
abiding citizens and pursued the legal remedy available to them but no party
can be permitted to take benefit of the delay caused in court of law, Here it
may also be pointed out that the rights of the muslims to offer Namaz should
have been protected but the machinery of law failed in it, only the Muslims
still have the right to offer Namaz in the building and no other community
has any right in the said building. The proceedings under Section 145
Cr.P.C. have not been dropped but after the filing of the suits the proceedings
under Section 145 Cr.P.C. were stopped and consigned to record, the
property in suit is custodial egisbeing still under attachment. However,
Namaz has been offered in the mosque in question after 23.12.1949 also and
Azan has also been called.
29. That in view of the submissions made in the foregoing paragraphs the
contents of para 29 of the plaint are denied. Neither there is any deity and
nor there could be any impleadment of it. Plaintiff No. 3 also has no locus
standi and so also plaintiffs No. 1 and 2.
30. That the contents of para 30 of the plaint are denied. There is no
question of any devotee, and the present campaign and proclamation made in
the plaint has nothing to do with the struggle for freedom of the country,
there is no question of construction of any temple there, such an attempt will
be resisted, there is no legal right for the construction of temple on the site
in question. The assertion in the para under reply are most unwarranted and
amount to incitement of an offence, and also amount to contempt, by way of
undermining the authority of this Hon'ble Court as, this Hon'ble Court on
279
3.2.1986 in W.P.746 of 1986 for maintaining status quo, is still in operation.
31. That the contents of para 31 of the plaint are denied. As there is no
deity a there is no question of its next friend and a judicial decision will be
binding upon all, disregard of the Rule of law pleaded in the plaint is
regretted. Shia community has nothing to do with the waqf of the said
mosque and this matter has already been adjudicated by the Civil Judge,
Faizabad in 1946, and it has been settled that Babri Masjid is a Sunni Waqf.
32. That the contents of para 32 of the plaint are denied. Shia Waqf Board
has no locus in this matter. The matter has already been adjudicated and as
such now Sri Jawwad Husain has no legal ststus concerning the mosque in
question. The reference of Shia political conference is also wholly irrelevant
.
33. That the contents of para 33 of the plaint are denied. It may be
pointed out that the entire complex belongs to waqf Babri Masjid, the
existence of which can't be denied, the entire muslim community is
represented by the Sunni Muslims parties and U.P. Sunni Central Board of
Waqf, who are plaintiff in R.S. No.12 of 1961.
34. That the contents of para 34 of the plaint are vehemently denied. The
premises has always been a mosque and it has been used as such and no one
can remove the structure.
35. That no doubt that the Muslims fear the God, other contents of para 35
of the plaint are denied. None of the plaintiff has any status to maintain the
suit.
36. That the contents of para 36 of the plaint are denied, plaintiff has no
cause of action including the plaintiff No.3. The cause of action, if any, had
accrued in 1528 A.D. When the Mosque was built.
37. That the contents of para 37 of the plaint need not reply.
38. That the contents of para 38 of the plaint are denied, the contents of
para 38 of plaint are vague and it has not been properly valued.
39. That the contents of para 39 of the plaint are denied, the plaintiffs are
not entitled to get any relief and the suit is liable to be dismissed with special
costs.
ADDITIONAL PLEAS
40. That according to the inscription in the mosque, the said Babri Masjid
280
was constructed by Mir Baqui, one of the commanders of the Babar in 1528
and since then it has been in use as mosque and the muslims always
regularly offered namaz in it till the attachment.
41. That between the night of 22
nd
and 23
rd
December 1949 certain
undesirable persons forcibly entered into the mosque and surreptitiously kept
the idols in the said mosque.
42. That in respect of above occurrence an F.I.R. was lodged in Police
station, Ayodhya by Police Officer with the Ayodhya Police Station on the
morning of 23
rd
December 1949. A case of criminal trespass and religious
hatred was registered on that basis and a report was submitted under Section
145 of the Cr.P.C. and Additional City Magistrate of Faizabad passed an
order of attachment on 29
th
December 1949 and the mosque was attached.
43. That firstly under the order of the Magistrate the property was given
under the charge of the receiver Sri Priya Dutt Ram and later on the suits
were filed and arrangement regarding the property made under Section 145
of the Cr.P.C. was also accepted by the Civil Court, the receivers in course of
time changed and uptill now the receiver is there.
44. That present suit is not maintainable. The plaintiff No.1 and 2 are not
the Hindu deities to be termed as juristic person, the plaintiff No.3 can not be
next friend of the deities. The plaintiff No.3 has no connection with the
matter, and his sudden emergence only indicates his political motive in the
matter.
45. That the suit is also barred by limitation and on this ground, also the
suit is not maintainable.
46. That the some averments of the plaint contain a threat and constitute
contempt of the courts of law including an excitement to violence and
disregard for the rule of law. Hence plaint as such is liable to be rejected.
The plaintiff No.3 undermines the authority of the court specially the interim
order dated 3
rd
Feb. 1986 passed in writ petition No.746 of 1986 by this
Hon'ble Court being there, for such contemptuous averments the plaintiff
No.3 is liable to be punished.
47. That Babri Masjid (building in question) has always been a mosque
and used as such, and only muslims have right to offer Namaz in it and U.P.
Sunni Central Board of Waqf has a right of supervision and control.
281
48. That the property in suit is not described in accordance with the
provision of Order 7 Rule 3 of C.P.C. and the plaint is liable to be rejected on
this ground alone.
49. That the suit in question involves State and Govt. Officers and no
notice as per plaint averments, as required under the law has been served and
as such the plaint is liable to be rejected.
50. That Lord Rama in whose name the controversy in question has been
created, according to authoritative texts of the historians and other scholar of
Hindu Religion is mere an epic and imaginary figure and was never in
existence. In India there have been authoritative pronouncements by the
various historians and also by the seminars and symposium that Lord Rama
never existed. It is mere an epic, besides above no period and place
could be fixed till this date. After long research Holy Barahmins have come
to conclusion that it is all mere an epic and legend.
51. That as per Balmiki's Ramayan which is supposed to be the only
authoritative source of Lord Rama. The city Ayodhya where the property in
question situates is not the place described in that book, the averment that at
the site of Babri Masjid there was some temple which was demolished at the
behest of Babar is absolutely incorrect and false. Shri Tulsidas who by his
book Ram Charitra Manas has elevated the status of Lords Rama from
Mariyada Prushottam to Bhagwan has not written about the demolition of
any such temple in his book which was written after construction of Babri
Masjid, at the Datoon Kund in Ayodhya itself which situates at a short
distance from the Babri Masjid. Before Tulsi's Ram Charitra Manas, there
were no temples of Lord Rama in any part of India instead there were
temples of other gods and goddess and as such the contention regarding
demolition of Rama Mandir is absolutely baseless and has been designed-ly
thatched up to create communal disharmony and hatred between the two
communities.
52. That the recent scientific investigation a, c-14 test which is radio
carbon dating method has revealed the stones used in the building in
question are less than 500 years in age and this falsifies the claim that the
temple was demolished and by the same material the mosque was built,
however, it is clarified that all such averments made in the plant are
282
absolutely of no consequence in courts of law.
53. That property in question is continuously recorded as graveyard and
mosque in the revenue records from prior to first settlement and the said
entry coming unchallenged and there being three settlement also now the
entries in revenue records are final and can not be questioned.
54. That after the enforcement of 1936 U.P. Muslim Waqf Act the property
in question, after due inquiry in Survey, was notified in official gazette as
waqf property to be registered with Sunni Central Board of Waqfs and the
said notification having not been challenged and the property in question
being recorded in the registers of Waqfs as Waqf property, now same can not
be challenged.
55. That initially there was provided a cash grant from the period of King
Emperor Babar and after British Rule in lieu of the said cash grant
Zamindari of village Shahnavan, Bhoranpur and Sholipur was given for the
Babri Masjid and the masjid in question was inter alia maintained by the
income of said Zamindari property and the salary of Imam and Moazin etc.
was paid and other expenses were also made.
56. That there have been a regular Imam in the said Mosque who led the
Congregational five time prayers including Friday Prayer.
57. That the averments regarding accrual of cause of action are absolutely
vague and lacking necessary material; who has decided to demolish the
mosque and build the proposed temple at its site and how the plaintiff No. 3
became spokesman of such person has not been stated and for want of the
same the plaint is liable to be rejected.
58. That the alleged pooja being carried on by the receiver as per orders in
regular suit No. 2 of 1950 could not legally make any change in the situation
because the receiver being the man appointed by the court and the property
being custoddia legis and both parties being responsible for the expenses
incurred by the receiver. Besides above, regular suit No. 2 of 1950 was an
incompetent suit from the very beginning for non-compliance of Section 80
C.P.C. and after death of Gopal Singh Vishrad which occurred long ago the
said suit has abated and no more survives in law, he himself having claimed
no here table right in the said suit and non having come forward initially for
being substituted or impleaded.
283
59. That Ram Janam Sthan Mandir exists in Ayodhya which is quit
distinct and separate from the premises in question. Mahant Raghubar Das
of Ram Janam Sthan Mandir filed regular suit No. 61/280 of 1885 for a
portion of premises in dispute measuring 17 x 21 feet which was dismissed
from the Court of Subordinate Judge, Faizabad and appeal against the said
decree filed by Mahant Raghubar Das was also dismissed from the court of
District Judge as well as the Judicial Commissioner, Avadh paralled to
Hon'ble High Court. In the said suit the existence of Mosque in question has
been very much unequivocally admitted and that admission is binding on the
present plaintiffs as well as by estoppel and acquiscence and the said suit
was decided with the clear findings that even if any wrong was done in 1528
A.D, that can not be undone now. The answering defendant factually
disputing the statement that any wrong was done by or at the behest of King
Emperor Babar is advised to state that said findings operate as res judicata
and the instant suit is barred Under Section 11 C.P.C. Besides above regular
suit No. 57 of 1978 filed on behalf of and in the name of alleged deity itself
for the very property has been dismissed from the Court of Munsif, Faizabad
and till this date no step has been taken to set aside that order as such the
present suit is liable to be dismissed.
60. That the present suit is inter alia liable to be stayed as provided under
Section 10 C.P.C. On account of pendency of the four suits referred to in the
plaint itself.
61. That the plaintiff no. 3 has got no authority to represent the alleged
deities and file suit on their behalf as next friend. The answering defendant
is advised to state that plaintiff no. 3 being not entitled to file the suit has
sought to regularise his illegal act by obtaining order of the court for being
appointed as next friend. It is stated that next friend is appointed for minors,
lunatics and persons of unsound mind and in some cases for executors and
administrators etc. in case of deity as the dieties are ever represented by
someone known as Manager, Shebait, Mahant or Sarvarakar etc. and the
suits are also filed through such persons and not through next friend. In
revenue records also names of such deities are entered through such persons
and as such the order dated 1.7.1939 appointing the plaintiff no. 3 as next
friend deserves to be recalled and the plaint rejected accordingly for which
284
separate application has been moved.
62. That the plaint is liable to be rejected for want of a real and subsisting
cause of action and not seeking relief of possession under Section 34
Specific Relief Act and as per plaint averment there is no surviving cause of
action in favour of the plaintiffs.
63. That as per plaint averment the matter concerning a large number of
members of Hindu's community as well as Muslim community the suit as
framed is not maintainable.
64. That annexures 1, 2 and 3 relied upon by the plaintiffs do not at all
depict the correct spot situation and are subjudice, objection against the same
by the state as well as other defendants has been filed and that has not been
directed to be brought on record and as such there being no specification of
the property in the plaint the suit is liable to be dismissed.
65. That the temporary injunction as initially ordered on 16.1.1950 and
modified on 19.1.50 and continued since then as stated in the plaint has got
no legal effect in as much as suit no. 2 of 1950 itself being not maintainable
for want of compliance of Section 80 C.P.C. and the plaintiffs of that suit
himself having repeatedly stated that the suit is for his individual rights and
as such no body else can claim any assistance there from.
66. That in the plaint Lord Rama has been stated as son of Dashrath and
thereafter the birth of child as Ram Lala has been stated, no period of the
birth of the either has been given as such the plaint is liable to be rejected.
67. That there has been no concern of Lord Rama, Janki or of any person
having faith in them with the land in question over which exists the Babri
Masjid and adjoining area of graveyard. Admittedly, the mosque being in
existence since 1528 and the deads having been buried the same could not be
subject matter of any other type of Puja in practice and ASTHA if any if the
same could survive from 1528 onwards till this date without any access to
the place in no circumstances that Astha could not give a right for demolition
of the mosque and the place where the deads or burried could not be purified
to be used for any other purpose.
68. That the term he manifested himself in human form is beyond
comprehenssion and vague.
69. That just the mosque was built and the deads were buried the site
285
became waqf property vested in almighty God and it will remain so vested
eternally and the property once vested in the God can not be divested. The
place where the mosque is built remains a mosque to the depth of the earth
and even above the same and can not be removed or shiftted to any other
place at all. No person on the earth can accord a permission for its removal
or shifting.
70. That for the protection of the mosque any muslim interested in the up
keep of the mosque can bring the suit and the averment that the suit having
not been brought by Mutawalli has got no relevance in the matter. However
the averment itself is contradictory.
71. That the averments that Muslims are children of the God is incorrect
and against the Islamic faith. God has no child at all. Them muslims and all
the living on the earth are creatures of God.
72. That in the instant suit a simple question of ownership and possession
of land is involved which has to be decided in accordance with the law of the
land and the claim of the plaintiffs on behalf of the alleged deities that by
meare used some right accrued for them although factually in court has been
repelled by the District Judge in appeal filed by Mahant Raghubar Das.
73. That the suit is bad form is joinder of defendants No. 22 to 25. They
have got no concern with the property in question, they have been impleaded
mala fide with ulterior motive collusively and with a view to create
confusion and rift among the muslims interest.
74. That the defendant No. 3, 11, 12, 13, 21 and 25 are nor the natural,
neigther legal persons and as such the suit is bad and liable to be dismissed
for the misjoinder of such parties.
75. That site plan and the report prepared by Shri Shive Shanker Lal,
pleader filed in regular suit No. 2 of 1950 is itself subjudice and can not be
relied in present suit.
76. That the instant suit is absolutely vexatious and frivolous one and is
liable to be dismissed with special cost having being filed with mala fide
intention and ulterior motive.
Lucknow
Dated: 14.08.89/21.08.89 Sd/-
Defendant No. 5.
286
In the Hon'ble High Court of Judicature at Allahabad Lucknow
Bench Lucknow
O.O.S. No. 5 of 1989
Full party name to be typed.
Additional Written Statement of Defendants Nos. 4 and 5
in O.O.S. No. 5 of 1989
Defendants Nos. 4 and 5 beg to submit as under:-
1. That the contents of para 35-H of the amended plaint are denied as
stated for want of definite knowledge. In any case the same are irrelevant
and hence are denied as stated.
2. That the contents of para 35-I of the amended plaint are also denied as
stated for want of definite knowledge. The averments of the para under
reply are also irrelevant and are denied.
3. That the contents of para 35J of the amended plaint are denied as
stated and in reply thereto it is submitted that the demolition of the Babri
Masjid appeared to be a pre-planned, deliberate and intentional act on the
part of the miscreants and criminals who had assembled at the site on the call
of the Vishwa Hindu Parishad, Bajrang Dal and Shiv Sena etc. All the acts
of the said so-called Kar Sewaks were totally illegal, unjustified and in
violation of the orders of this Hon'ble Court as well as of the Hon'ble
Supreme Court and amounted to blatant exercise of Rule of Jungle and the
so called construction of make-shift temple and placing of idols in the same
on 7.12.1992 was all totally illegal and contemptuous and the said idols
could not be described as deity under Hindu law also.
4. That the contents of para 35-K of the amended plaint are also denied
as stated and in reply thereto it is submitted that Sri Kalyan Singh and his
government had deliberately violated and flouted the orders of the this
Hon'ble Court as well as of the Hon'ble Supreme Court and had even
committed breach of their own undertaking given in the Hon'ble Supreme
Court and as such the dismissal of the State Government headed by Sri
Kalyan Singh was perfectly justified.
5. That the contents of para 35-L of the Amended Plaint are admitted
only to this extent that the said writ petitions were allowed on Ist January,
287
1993 against which Special Leave Petitions were filed in the Hon'ble
Supreme Court which are still pending. Rest of the contents of the para
under reply are denied as stated.
It is further submitted that the averments of the para under reply are
totally irrelevant and frivolous.
6. That the contents of paras 35M, 35 N, 35-O and 35-P of the Amended
Plaint are matters of record and the same may be verified from the said
Ordinance and the Act. The averments contrary to the intent and meaning of
the provisions of the said ordinance and the Act as explained by the Hon'ble
Supreme Court are denied as stated.
7. That the contents of para 35-Q of the Amended Plaint are absolutely
incorrect and are denied as stated. Neither there is any deity at the site in
question and nor the idols in question can be said to have any juristic
personality. The plea contained in the para under reply was raised even
before the Hon'ble Supreme court but the same was not accepted. As there
exist no deity there arises no question of any Shebaiti rights.
8. That in reply to the contents of para 35 R of the Amended Plaint it is
submitted that the Hon'ble Supreme Court has discussed in detail the
meaning and purport of Section 7(2) of the Act and the plea under reply is
unwarranted and irrelevant.
It is further submitted that the averments contained in the affidavit of
Sri Radhey Shyam Kaushik have neither been given in the para under reply
and nor the answering defendants had definite information about the same
and as such the averments regarding the same are liable to be deleted on
account of being vague and ambiguous.
9. That the contents of paras 35-S and 35-T of the Amended Plaint may
be verified from the record.
10. That the contents of para 35-U of the Amended Plaint are not disputed.
11. That the amendments sought in the Plaint and specially those
contained in the paragraphs 35-H to 35-L of the Amended Plaint are totally
irrelevant, vexatious and frivolous and the same are liable to be deleted.
12. That the plaintiffs have no right, title or claim over the property in suit
and after the judgement of the Hon'ble Supreme Court, there remains no
justification for the trial of the instant suit.
288
13. That the plaintiffs have no cause of action and specially so when the
idols placed in the mosque surreptitiously in the night of 22nd-23
rd
December, 1949 have been removed on 6.12.1992. The claim, if any,
regarding the said idols stood extinguished on the removal of the said idols.
Lucknow
Dated: 22
nd
August, 1995
Z. Zilani
Counsel for Defendants No. 4 & 5. Sd/-
Defendants 4 and 5.
289
In the Hon'ble High Court of Judicature at Allahabad Lucknow Bench
Lucknow.
Suit No. 236/89 of Faizabad 07.07.1989 of Lucknow
Full party name to be typed
Date of hearing 14.08.89
Written Statement on behalf of Defendant No. 11, President All India
Hindu Mahasabha, New Delhi.
In O.O.S. No. 5 of 1989.
RESPECTFULLY SHOWETH:-
The defendant No. 11 begs to submit as under:-
1. Para no. 1 of the plaint, as stated, is admitted.
2. Para No. 2 of the plaint, as stated, in its earlier part is admitted. It is
also admitted that Shri Shiv Shankar Lal, pleader, was appointed as a
Commissioner in Civil Suit No. 2 of 1950, by the court of the Civil Judge,
Faizabad. The Annexures mentioned in this para are admitted to be correct.
3. Para No. 3 of the plaint, as stated, is a matter of record.
4. Para No. 4 of the plaint, as stated is also admitted. The said suit is still
pending disposal.
5. Para No. 5 of the plaint, as stated, is also admitted. The said suit is
also pending disposal.
6. Para 6 of the plaint, as stated, is admitted being matter of record. The
said suit is also pending disposal before this Hon'ble court.
7. Para 7 of the suit as stated is a matter of record. The suits detailed in
this is also pending for disposal before this Hon'ble Court.
8. Para 8 of the plaint, as stated is not denied.
9. Para 9 of the plaint, as stated, is a matter of record.
10. Para 10 of the plaint is a matter of record.
11. Para 11 of the plaint is admitted. All the suits are still pending
disposal before this Hon'ble Court.
12. Para 12 of the plaint is admitted.
13. Para 13 is a matter of record.
14. Para 14 of the plaint, as stated, is admitted.
15. Para 15 of the plaint, as stated, is admitted. However, it is submitted
that the All India Mahasabha be also included in the Trust created for
protecting, renovating, reconstructing and developing the temple premises,
290
in short, of managing all their estates and all their affairs.
16. Para 16 of the plaint, as stated, is admitted. That the trust as framed
for managing all the affairs of Ram Janam Bhumi be directed to include All
India Mahasabha as a member of the said Trust for managing all the affairs
pertaining to the Ram Janam Bhumi.
17. Para 17 of the plaint, as stated, is admitted. However, it is submitted
that All India Hindu Mahasabha as a party to the said Shri Ram Janam
Bhumi Nias is directly in the Sewa Pooja and all other affairs of the Ram
Janam Bhumi Temple. The All India Hindu Mahasabha is ready to cooperate
with all Hindu Organisations.
18. Para 18 of the plaint, as stated is admitted.
19. Para 19 of the plaint, as stated, is correct.
20. Para 20 of the plaint, as stated, is correct to the core.
21. Para 21 of the plaint, as stated, is correct.
22. Para 22 of the plaint, as stated is correct.
23. Para 23 of the plaint, as stated, is historically correct. It is, however,
submitted that the quotation of the 1928, Edition, Faizabad, Gazetter,
published by the Government Trust U.P. State, at page 179 is correct.
24. Para 24 of the plaint is historically correct and site inspection of the
suit property stands testimony.
Sub-para (a) is also correct
Sub-para (b) is a matter of record.
Sub-para is also correct.
Sub-para (d) is also correct.
Sub-para (e) is also correct.
Sub-para (f) is also correct.
Sub-para (g) is also correct.
Sub-para (h) is also correct.
25. Contents of para 25 of the plaint as stated are correct and fully
endorsed.
26. Para 26 of the plaint is historically correct.
27. Contents of para 27 as stated are correct.
28. Para 28 is a matter of record.
29. Para 29 of the plaint as stated is correct.
291
30. Para 30 of the plaint as stated is correct.
31. Para 31 of the plaint is admitted to be correct.
32. Para 32 of the plaint as stated is a matter of record.
33. Para 33 of the plaint as stated is a matter of record and the existence of
deities and the Ram Chabootra etc. are admitted to be correct.
34. Para 34 of the plaint, as stated is correct.
35. Para 35 of the plaint is correct.
36. Para 36 is legal and admitted to be correct.
37. Para 37 as stated is correct.
38. That the valuation of the suit property is correct.
Prayer Clause
Prayer clause (a) is correct.
Prayer clause in sub-para (b) is correct and releifs sought by the
plaintiff be granted to the plaintiff.
regarding costs, the plaintiff be awarded costs against the contesting
defendants.
Any other relief which this Hon'ble Court may deem just fit and proper in the
circumstances of the case be granted to the plaintiff.
New Delhi
Dated 14 August, 1989. Sd/- Inder Sane Sharma
Defendant No. 11
Through
Sd/-
Advocate
14.08.89
*****************
292
In the High Court of Judicature, Allahabad Sitting at Lucknow
In Re:
O.O.S. No. 5 of 1989
Arising out of Regular Suit No. 236 of 1989
Full party name to be typed.
Written Statement on behalf of Defendant No. 17 Sri Ramesh Chandra
Tripathi In O.O.S. No. 5 of 1989
1. That the answering defendant No. 17 has perused the above mentioned
suit and has understood the contents.
2. That para 1 to 38 of the plaint is admitted.
3. That the plaintiff is entitled to the relief as prayed in para 39.
Additional Pleas
4. That answering defendant is a Vaishnav, Ramanandi devotee of
Bhagwan Sri Ram Virajman in the Ram Janma Bhumi Temple at Ayodhya.
5. That the Muslims individually and collectively have no right or title in
the said Sri Ram Janma Bhumi Temple and for unnecessary and political
reasons they want to occupy the said temple with the aid of present party in
power.
6. That the said temple and its deity is an object of worship and
reverence and a creed of Hindu faith and the answering defendant is strictly
follower of that faith.
Lucknow
Dated: 14.08.89 Sd/- Ramesh Chandra Tripathi
Sd/- Through Shri K.P. Singh
Advocate, High Court, Lucknow
293
In the Hon'ble High Court of Judicature at Allahabad Lucknow Bench
Lucknow.
Regular Suit No. 05 of 1989
Original Suit No. 236 of 1989
Full party name to be typed.
Written Statement of Defendant No. 24
In O.O.S. No. 05 of 1989
The defendant No. 24 begs to submit as under:-
1. That statement made in para 1 of the suit plaint, i.e. the claims of the
plaintiff no. 3 seeking to represent the deity and the Asthan as a next friend
are not admitted, and are contested. The holy deity and Asthan can not be
made parties to this suit. Plaintiff no. 3 has not secured any authority to file
the suit on behalf of plaintiffs No. 1 and 2. This defendant considers Lord
Rama to be above the Jurisdiction of this Hon'ble Court. This defendant
considers it a sacrilege to drag the name of Lord Rama into these mundane
proceedings. Because this suit, like all suits before the Court, is also liable
to be dismissed. But the plaintiff No. 3 is trying to make Lord Rama as the
Plaintiff No. 1 in order to make sure plaintiff No.3 is not defeated because
Lord Rama can not be defeated. This attempt should not be allowed to
succeed.
2. That as regards the contents of para 2 thereof the answering defendant
has no knowledge of Sri Rama Janam Bhoomi, by which is meant the exact
spot of birth of Lord Rama. The site plans referred are alleged to be the part
of court record, which can be verified by the court, and are not admitted to
be correct. Today, there are at least three spots in Ayodhya claimed as the
exact spots where Lord Rama was born, viz:
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 courtyard outside the Babri Masjid
Structure, is being known as Ram Janam Bhoomi only since 1855.
c. The Janamsthan site Rasoi Mandir, facing the Babri Masjid across the
street, is traditionally known as Ram Janam Bhoomi since time immemorial.
The last 2 mentioned spots have not been abandoned by the believing
devotees in Ayodhya.
294
3. With regard to the contents of paragraphs 3, 4,5,6,7, 8, 9 and 10 of the
suit plaint, this defendant states that since he was not a party to any of the
suits and actions mentioned, he has little knowledge about them. Since the
statements concerned the relevant records of the mentioned cases, this
defendant has nothing to say to that, and does not admit anything.
4. Statements made in paragraph 11 of the suit plaint are also matters of
record. The answering defendant submits that the issues framed in all the
four pending suits as stated may first and promptly be decidedly by this
Hon'ble Court.
5. With reference to paragraph 12 of the suit plaint, it is most respectfully
submitted that when the four pending suits were consolidated and the issues
have been framed, the same should be decided without any further delay.
6. With regard to paragraph 13 of the plaint, this defendant is also
dissatisfied with the order of the District Judge, Faizabad dated 1.2.1986.
Since a writ petition against that order is pending in this Hon'ble Court, this
answering defendant does not wish to discuss the same. But he simply
requests this Hon'ble Court to dispose that pending writ petition
simultaneously with the instant suit and other pending suits.
7. With reference to the statements made in the last sentence of
paragraph 14 of the suit plaint, this answering defendant wishes to place on
record that this defendant considers the mentioned structure as a mosque,
popularly known as Babri Masjid, which can not be lawfully removed to
make way for a Mandir.
8. With reference to the contents of paras 15 and 16 of the suit plaint, the
answering defendant submits that unless the issues in the four pending suits
are decided, and unless new issues in the instant Original Suit No. 236 of
1989 are framed and decided, and unless and until ownership is settled and
decided by this Hon'ble Court of the land and structures called by the
Muslims as Babri Masjid and Ganj-e-Shaheedan Qabristan and by the
plaintiffs as Ram Janmsthan, formation of Trust comprising the disputed
property is illegal and invalid.
9. With reference to the statements made in paragraph 17 of the Suit
plaint, this defendant submits that when the Trust itself is illegal and invalid,
making it as defendant No. 21 in this suit is meaningless. Further more such
295
a step is also collusive, inasmuch as plaintiff No. 3 Sri Deoki Nandan
Agarwala is one of the Trustees of the Trust, which has been made as
defendant no. 21 in it. So, Mr. Agarwala represents both the plaintiffs as
well as the defendants. If Lord Ram were really the plaintiff No. 1 such a
faux pas would never have committed.
10. With reference to the statements made in paragraph 18, this defendant
at the outset wishes to record the fact that he and the Muslims of India have
the highest regard for Lord Rama. These sentiments of the Muslims are best
reflected in the poem entitled Ram composed by the greatest Muslim
thinker of India of the present century Allama Dr. Sir Muhammad Iqbal, who
has summed up in just one verse of the long poem what Muslims of India
think of Shri Ram Chanderji:
Hae Ram ke wajood pa Hindostan ko naaz
Ahl-e Nazar Samajht-e hain usko Imam-e-Hind.
Meaning- India is proud of the existence of Ram. The intelligent-sia
consider him as the leader of India.
This defendant submits that if Lord Ram himself could help it, he
would not have liked his good name to be dragged into this unseemly and
undignified controversy. Impleading of the great names of plaintiffs No. 1
and 2 is therefore, unauthorised and unwarranted. Plaintiff No. 3 has no
right or authority to make the Deity and Asthan as the Platitiffs No. 1 and 2,
as their consent has not been obtained by plaintiff No. 3, and the latter has
not been authorised or appointed by plaintiffs No. 1 and 2 to act on their
behalf. Politicians and communal minded fundamentalists have set up
plaintiff no. 3 to file this frivolous suit in the name of the Asthan and
Bhagwan Sri Rama to serve their own narrow political and selfish ends. The
suit plaint filed asserts that The plaintiffs above-named beg to state as
under, and a number of incorrect statements based on ignorance of facts and
law have been made thereafter. Had Lord Ram been really the plaintiff, such
incorrect and ignorant statements would not have been made. In fact Lord
Ram would not have subordinated himself, the way his devotee has done
him.
11. The claim in paragraph 19 of the suit plaint that the premises in
dispute is the place where Maryada Purshottam Sri Ram Chanderji Maharaj
296
was born is denied and contested. This defendant submits that only since 22
December, 1949, about 40 years ago, such a belief has come into existence.
If any documentary or recorded evidence is produced by the plaintiff No. 3
establishing beyond doubt that the present belief existed before 22.12.1949
also, this defendant will surrender all his opposition.
12. In this connection, this defendant further submits that when the Babri
Masjid was being constructed in 1528 A.D. No such belief existed in
Ayodhya, or elsewhere that the place where the mosque was being built was
Ram Janam Bhoomi. Goswami Sant Tulsidas, the great biographer of Lord
Ram was alive then, and wrote his epic biography Ram Charitra Manas
about the year 1558 A.D., but did not complain that Babri Masjid was built
on Ram Janam Asthan. The book Ram Charitra Manas is a public document.
In an earlier period, Valmiki wrote perhaps the first Ramayana. He
also did not identify the presently contentious spot as Ram Janam Asthan.
In none of the several Ramayanas in several languages, the said
contentious spot has been mentioned as the place of birth of Lord Ram.
13. Statements made in paragraphs 20 and 21 of the suit plaint are
irrelevant to the issues in the suit, and are based on intricacies of philosophy
and theology.
14. Religious sentiments of plaintiff No. 3 contained in para 22 of the suit
plaint are respected but the following passage in it is strongly contested:
The place is a deity. It has existed in this immovable form
through the ages, and has ever been a juridical person. ...............
Thus Asthan Sri Rama Janama Bhumi is an indestructible and
immovable Deity who has continued to exist throughout the ages.
Fact of the whole matter is that idea of Ram Janmsthan was first
floated by British East India Company's agents in 1855 in order to
destabilize the regime of this Defendant's forebear, the King of the realm
Wajid Ali Shah. At that time a spot outside the structures of the Babri
Masjid, in a corner of the courtyard was claimed as Ram Janam Asthan. But
the King settled the dispute by partitioning out the plot 17 ft. x 12 ft. naming
it as Ram Chabutra and by giving it to the Hindus to do paats of
Ramayana, peace was then restored.
Again, for the first time on 22.12.1949 the Ram Janm Asthan claim
297
was shifted from Ram Chabutra to right inside the mosque just beneath the
main large dome of the Babri Masjid.
Earlier than 1855, the undisputed Ram Janm Asthan was the old
Janam Asthan Sita Rasoi Mandir across the street on a mound facing the
Babri Masjid.
All the above mentioned three Ram Janam Asthans are now believed
to be Lord Rama's probable places of birth, viz. (i) inside the Babri Masjid
beneath the main dome since 1949, (ii) at Ram Chabutra in the courtyard of
the Babri Masjid since 1855, (iii) at the old Ram Janam Asthan Mandir
where Sita Rasoi is also situated, and whose present Mahant is Harihar Das,
aged over 100 years.
15. That the statements made in the first two sentences of paragraph No.
23 of the plaint are the most important, and all Muslims of India are willing
to make that as the issue and settle the dispute one way or other at this.
Paragraph No. 23 opens thus:
That the books of history and public records of unimpeachable
anthenticity establish indisputably that there was an ancient temple of
Maharaja Vikramaditya's time of Sri Rama Janam Bhumi Ayodhya. That
Temple was destroyed partly and an attempt was made to raise a mosque
thereat by the force of arms, by Mir Baqia commander of Babar's hordes.
The plaintiff No. 3 Sri Deoki Nandan Agarwal, in a booklet named
Sri Rama Janam Bhumi published by Sri Rama Janam Bhumi Mukti
Yagna Samiti, 58, Rajendra Nagar, Lucknow, has written at page 2 as
follows:-
That there was an ancient Temple of Maharaja Vikramaditya's
time at Sri Rama Janam Bhumi is a fact of history, which is
indisputable, although there is some controversy as to which of the
Vikramaditya resurrected the place and built the magnificent
Temple.
In paragraph No. 23 of the suit plaint there is a reference to 1928
Edition of the Fyzabad Gazetteer published by the then British Government
in Uttar Pradesh, wherein at page 179 there are stories of Moghul Emperor
Babar coming to Ayodhya, halting there for a week, destroying the ancient
temple at Janamsthan, and building the Babri Mosque on its site the
298
materials of the old destroyed Mandir. But it is a well-known fact of history
that Emperor Babar never came to Ayodhya. And that the Babri Mosque was
built by Mir Baqi and not by Babar has been admitted in the suit plaint
itself. Further more, Babar in his Babar-Nama, while recording his daily
diary, has made no mention of visiting Ayodhya, destroying Mandir or
building Mosque there, although in other pages of Babarnama many things
adverse are also mentioned.
But the Fyzabad Gazetteer of 1877, this Defendant submits, does not
contain any mention of destruction of any Mandir and building of Babri or
any Masjid on the Mandir land. Of the two Gazetteers , the one
contemporary and more near to the date concerned will have to be relied on.
District Gazetteers of the British Government, as is well known, were
no works of history. They only reflected the policy of the alien Government
to divide the vast population of India by creating conflicts such as the
present one, and to perpetuate the minority rule of the foreign imperialist
power. This defendant submits that all the aforesaid and other conflicting
facts need to be investigated by this Hon'ble Court or by a Commission of
Experts of history and archaeology to arrive at the truth.
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.
But if this is not a fact, the Babri Masjid must in all fairness be
returned to Muslims.
In this connection, the following quotation of Swami Swaroopananda
Saraswati, the Shankeracharya of Dwarka Peeth, and published in the
national newspaper on 14
th
May, 1987, is being reproduced below from
Qaomi Awaz-Urdu Daily of Lucknow:
CONDITION FOR RETURN OF BABRI MASJID TO MUSLIMS:
Pune (Maharashtra) 13 May-
Jagadguru Shankaracharyya Swaroppananda Saraswati has proposed
that to resolve the Ram Janam Bhumi Babri Masjid tangle an Authority
should be constituted.
299
Addressing a gathering of the All India Virodhman Asthan Kwasi Jain
Shraman Sangh here yesterday he said that if it is proved that Moghul
Emperor Babar got the mosque constructed after demolishing Mandir, then
surely the Hindus should get the Mandir. But if it is found that Hindu
Administrators made the Mandir after destroying the mosque, then the place
will have to be made over to Muslims.
In this connection, the celebrated Muslim historian and scholar
Maulana Syed Sabahuddin Abdur Rahman (since expired) in his well-known
treatise BABRI MASJID wrote at page 5 at the very beginning of his
preface thus: (translation from Urdu).
On behalf of Muslims I also have a right to say that if it is proved
that Babri Masjid has been built after demolishing Ram Janam Bhoomi
Mandir on its place, then such a mosque if built on such an usurped land
deserves to be destroyed. No theologean or Aalim can give Fatwa to hold
Namaz in it.
In the monumental theological work Fatawa-e-Alamgiri, volume 6
page 214, the following is the ruling: (translation).
It is not permissible to build mosque on unlawfully acquired land.
There may be many forms of unlawful acquisition. For instance, if some
people forcibly take somebody's house (or land) and build a mosque or even
Jama Masjid on it, then Namaz in such a mosque will be against Shariat.
Other assertions made in paragraph 23 of the Plaint, not specifically
dealt with above, are contested and denied.
16. Parts of the contents of paragraph 24 of the suit plaint have been
answered in para 15 above. This defendant submits that plaintiff No. 3 is not
competent to interpret Koran, Islamic Shariat, and Islamic custom and
practices which he has tried to do in sub-paragraphs A, B, C, D, E, F and G
of the paragraph 24. The interpretations given are strongly contested. The
contentions in the suit plaint in this regard are wholly irrelevant with the
points at issue. This defendant states:
(A) That Emperor Babar or Mir Baqi did not destroy or demolish any
Mandir.
(B) Emperor Babar or his commander Mir Baqi did not construct the
mosque on the land of or on the ruins of any Mandir. Mir Baqi
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built the Babri Masjid on vacant land.
(C ) Sanctity of Babri Mosque was not affected by the creation of Ram
Chabutra on the courtyard, or by the mosque being surrounded by
Mandirs.
(D) There is no tenet of Islam against existence of a mosque in a noisy
place, or in a non-Muslim locality.
(E) Minaret is no essential part of a mosque.
(F) Non-existence of a water reservoir in it does not make a Mosque
as no mosque.
Finally speaking, if it is not a mosque how it is claimed that mosque
was built after destroying the Mandir.
17. The statements made in paragraph 25 of the suit plaint are based on
imagination, and are contested.
18. Statements made in paragraph 26 of the Suit Plaint are mostly
irrelevant and are matters of record, the same are not admitted. Namaz
particularly Friday Namaz used to be regularly held in the Babri Masjid, and
the last Namaz was held on 22.12.1949. The Imam, who led the prayers
regularly till 22.12.1949, was Maulana Haji Abdul Gaffar and he is alive and
lives at Mohalla Qaziana, Ayodhya, District Faizabad. While the Plaintiffs
have denied here that there was a Mutawalli, they have admitted in
paragraph 32 of the plaint that defendant no. 23 was the Mutawalli of the
Babri Masjid and that is why he has been made defendant. This itself shows
that Lord Rama could not have been the Plaintiff of this Suit.
19. That the statements made in paragraph 27 of the suit plaint are
incorrect. What actually happened on the night between 22.23 December,
1949 is best narrated by the then Deputy Commissioner of Faizabad himself
in an affidavit filed by him on behalf of the State, being Defendant No. 6 in
Regular Suit No. 25 of 1950. Xerox copy of relevant portion of the said
Affidavit is being made Annexure 'A' hereto. Destruction of the graveyard,
done by the plaintiff No. 3's party was an act of sacrilege and was illegal.
The same was done after 23.12.1949. In this connection attention is invited
of your Lordships to the Thana Diary entry made by the constable who was
on beat duty on the said night between 22.-23 December, 1949, which is also
in the records of Regular Suit No. 25 of 1950, which is before your
301
Lordships in this amalgamated hearing.
20. That as regards the contents of para 28 of the Suit Plaint, it is
submitted that under the Constitution of Secular India religious places of all
the communities ought to be protected by the Government, and the action of
its officers for the protection of Babri Masjid and for preventing any breach
of peace was fully justified. The Objection of the Plaintiff to this rule of law
is unfortunate.
21. With reference to the statements contained in paragraph 29 of the Suit
Plaint, it is submitted that the contents therein are imaginary and speculative
and are not based on law. The claim of adverse possession in respect of
religious places like Babri Masjid is unjustified and illegal. Moreover, the
adverse possession if any was always with guilty knowledge, and was
malafide.
22. That as regards the contents of paragraph 30 the answering defendant
believes that the Hindu population of India has always been by and large
secular, otherwise India would have been a Hindu Dharmic State. The
infinitely small minority amongst Hindus, to which group the plaintiff no. 3
and the party of which he is the Vice-President namely the Vishwa Hindu
Parishad belong, have little or no voice in the country. In last 42 years after
India gained freedom from foreign rule, the plaintiff no. 3 and his like-
minded political parties have never been able to win more than 1 or 2 percent
of the total number of seats in the Indian Parliament thereby exposing their
following in the country. The answering defendant believes that the Hindu
public and devotees who have happily co-existed in Ayodhya with the Babri
Masjid for over 400 years since its construction in 1528 will never commit
an act of Adharma by demolishing the Babri Masjid and constructing a
Mandir over it by illegal means as threatened by the Plaintiff No. 3 on
30.9.1989, especially when this Hon'ble Court is seized of the matter and an
order for status-quo is in force. The threats contained in paragraph No. 30
amount, it is most respectfully submitted, to contempt of Court.
23. That the views contained in para 31 of the Suit Plaint are
misconceived. The present suit is nothing but a guise to cover the short
comings of the other original suits, and is bound to create more disputes than
solve them. Contrary to what have been asserted in the plaint, the fact is that
302
there are no differences between Shia and Sunni sects of Muslims in India
and elsewhere so far as the protection of mosques, including the Babri
mosque, is concerned.
24. That as regards paragraph 32 of the Suit Plaint, this Defendant states
that the Babri Masjid was built by Mir Baqi, a Shia Muslim and the
Mutawalliship devolved upon his descendants since inception in 1528
without break. But both Shia and Sunni Muslims used to offer Namaz in the
Babri Masjid, as indeed in all Shia managed mosques all over the world, in
their own different ways. Sunni Muslims however were permitted by the
Shia Mutawalli to form their own daily Jamaat in the Babri Masjid since
about 1925, because by then the Shia population in Ayodhya had dwindled.
The Sunni Imam Maulana Haji Abdul Gaffar was the last Imam of Babri
Masjid, who led the last Namaz on 22.12.1949.
25. That as regards paragraph 33 of Suit Plaint, since every mosque is a
public property and all Muslims regardless of their sect are its beneficiaries,
every member of the Muslim community has right to represent the case of a
mosque. Attempt of the Plaintiff No. 3 to drive a wedge between Shias and
Sunnis in this Hon'ble Court in the instant proceedings is deplored. The
Sunni Central Waqf Board, Defendant No. 4, and its co-defendants No. 5 and
6, being the present three plaintiffs in Suit No. 12 of 1961 have the full
support of this answering defendant as President All India Shia Conference
in their just struggle for the recovery of Babri Masjid. In fact this is the
reason no Shia Muslim, including the Shia Mutawalli of Babri Masjid, or the
Shia Central Waqf Board or All India Shia Conference has ever opposed or
contested the claim of Plaintiffs in Suit No. 12 of 1961. The possession of
the Babri Masjid and the Qabristan or Ganj-e-Shahidan adjoining that
mosque on the mosque land, which is with the Court Receiver and under an
order of Status-quo of this Hon'ble Court, should not be interfered with by
the Plaintiffs' party.
26. That as regards the contents of paragraphs 34 and 35 of the Suit Plaint,
the answering defendant being a representative of the Shia Muslims of India
is deadly against any form of sacriligious actions. He is of the firm view that
no place of worship of any religion should be destroyed and no place of
worship should be constructed on the ruins of the destroyed one. The
303
answering defendant firmly believes that the Babri Masjid was certainly not
built after destroying the Vikramaditya Mandir or any temple. Yet, at the
same time if it is unequivocally proved in this Hon'ble Court in the light of
historical archaeological and expert scientific evidence that the Babri Masjid
was really built after demolishing any Mandir on the Mandir land, only then
this defendant will withdraw his opposition.
As a further concession to the Plaintiff No. 3 and to the Hindu
community of India whose religious sentiments the said Plaintiff and his
party are trying to wrongly arouse since last 3 years, this Defendant is
prepared to withdraw his opposition also if it is unequivocally proved, in this
Hon'ble Court that the belief, of Ram Janam Asthan being at the presently
claimed spot inside the Babri Masjid, existed from before the Babri Masjid
was built, existed from before the Babri Masjid was built. And that the Babri
Masjid was knowingly built on the Ram Janam Asthan spot.
27. Regarding paragraph 36 of the Suit Plaint, it is submitted that no cause
of action accrues to the plaintiffs.
28. With regard to paragraph 38 of the Suit Plaint, this Defendant submits
that the suit has been under-valued.
29. That as regards the contents of paragraph 39 of the Suit Plaint, this
Defendant submits that the Plaintiffs have made out no case, and are not
entitled to any relief, and the suit is liable to be dismissed.
30. It is irrelevant if the disputed Waqf is Sunnni or Shia. In either case
ownership of the Waqf vests in almighty Allah.
31. Once it is admitted that a mosque was built hundreds of years ago and
was used as such it became Waqf by user, irrespective of the fact whether or
not legal formalities for creating a Waqf were observed.
32. The Suit is definitely barred by limitation.
33. The claim is also barred by the principle of estoppel.
Lucknow, dated Sd/-
4.9.1989 Defendant No. 24.
304
IN THE HON'BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD SITTING AT LUCKNOW
----------
O.O.SUIT NO. 5 OF 1989
Bhagwan Sri Ram Virajman & others ........ Plaintiffs
Vs.
Rajendra Singh & others ....... Defendants
WRITTEN STATEMENT UNDER ORDER VIII RULE 1 OF C.P.C.
ON BEHALF OF DEFENDANT NO. 25.
1. That the contents of para 1 of the plaint are denied. Neither the
plaintiff No. 1 nor plaintiff no. 2 are the deities within the meaning of Hindu
Law nor they are juristic person to file the suit. Remaining contents of para
are also denied. Kindly see Addl. Pleas.
2. That the contents of para 2 of the plaint are denied. The area and the
places indicated in Annexures No. 1, 2 and 3 of the plaint are neither Ram
Janam Bhoomi nor Ram Janam Asthan. However, it is evident that there
exists a Mosque known as Babri Masjid, the existence of this mosque is
established by record, Historic, Judicial and Revenue. The filing of the suit
no. 2 of 1950 are not denied. See the Addl. Pleas.
3. That in reply to the contents of para 3 of the plaint, only the filing of
the suit No. 2 of 1950 is admitted but not the contents of the plaint of the
said suit. The remaining contents of para under reply are denied. Kindly see
Addl. Pleas.
4. That in reply to the contents of para 4 of the plaint it may be pointed
out that the relief claimed in suit no. 2 of 1950 is wholly misconceived and
legally not
5. That in reply to the contents of para 5 of the plaint the filing of suit no.
25 of 1950 is admitted but the contents of the plaint of the said suit are
denied. Remaining contents of the para under reply are also denied.
6. That in reply to the contents of para 6 of the plaint the filing of suit
No. 26 of 1959 is admitted while the allegations of the plaint of the said suit
are denied. The initiation of the proceeding under Sec. 145 Cr.P.C. and the
appointment of the receiver, which still continue is also not denied.
However, remaining contents of para under reply are denied. See Addl.
305
Pleas.
7. That in reply to the contents of para 7 of the plaint, the suit No. 12 of
1961 including its contents are admitted, the same may be decreed.
8. That in reply to the contents of para 8 of the plaint, it may be pointed
out that the order dated 8
th
august, 1962 was rightly passed. Remaining
contents of para under reply are not admitted as framed.
9. That in reply to the contents of para 9 of the plaint, it may be pointed
out that the averments related to the judicial record, and hence are not
denied.
10. That in reply to the contents of para 10 of the plaint it may be pointed
out that at the time of granting of the said injunction the answering defendant
was not a party in suit no. 2 of 1950. The said suit was also not in the
representative capacity. Hence the answering defendant is not bound by the
said interim injunction. The answering defendant is advised to state that the
interim injunction order dated 16.1.1950 as modified on 19.1.1950 was also
beyond the scope of suit No. 2 of 1950. Remaining contents of the para
under reply are also denied.
11. That in reply to the contents of para 11 of the plaint it may be pointed
out that Pooja etc. even in the restricted way, was wrongly permitted.
However, the appointment of receiver is not disputed.
12. That the contents of para 12 of the plaint are denied. The averments
of para under reply, as regards performing religious ceremonies during the
pendency of the suit is also incorrect and denied. See Addl. Pleas.
13. That the contents of para 13 of the plaint are not admitted as framed,
answering defendant is advised to state that the order of District Judge dated
1.2..1986 is wholly illegal and is also void being in utter violation of the
principles of natural justice. However, the said order has been challenged in
two writ petitions, vide W.P. No. 746/86 and writ petition No. 3106 of 1986.
14. That the contents of para 14 of the plaint are denied. There is no deity
in the premises in dispute within the meaning and concept of Hindu Law and
as such there is no question of devotees etc. The averments pertaining to the
money received by the receiver are denied for want of definite knowledge.
15. That the contents of para 15 of the plaint are denied. There is no
question of construction of any temple over the site in question. Answering
306
defendant and his co-religionist have a right to resist any such attempt. The
premises is a mosque and muslims have a right to offer namaz in it. Neither
Jagadaguru has any right or locus in the matter and nor he can execute any
deed legally in respect of the premises in question. The answering defendant
is not aware of the religious sect of the so called vairagies of Ayodhya.
16. That in view of the submissions made above the contents of para 16 of
the plaint are vehemently denied. The so called trust deed is a nullity. It has
no legal basis and the same has no relevance in the present controversy.
17. That the contents of para 17 of the plaint are vehemently denied. The
so called 'Nyas' has no locus in the matter, nor it can be a party to any suit.
18. That the contents of para 18 of the plaint are vehemently denied. No
other suit is needed. The present suit is also barred by limitation. The
averments of the para under reply have been made with a malafide intention
by which the plaintiff no. 3 only wants to boost his own status, while he has
no locus; neither there is any deity having a juristic personality (or juristic
person) and nor the plaintiff No. 3 is a next friend of any deity and the only
persons who have a right to worship in the premises in dispute, i.e. the
mosque, are the muslims.
19. That the contents of para 19 of the plaint are vehemently denied.
There is no evidence, historic or otherwise, to indicate that Sri Ram Chandra
ji was born there.
20. That the contents of para 20 of the plaint are vehemently denied. As
there is no deity, there is no question of any devotee and there is no question
of any asthan also. It is an innovation even in Hindu law; the answering
defendant is advised to state that the so called asthan can not be treated as a
juristic person and as such the suit is not maintainable on this count also.
Kindly see addl. pleas.
21. That the contents of para 21 of the plaint are vehemently denied, the
concepts of the varous schools of thought of Hindu religion are not relevant
to the controversy before this Hon'ble Court.
22. That the contents of para 22 of the plaint are denied, various
philosophies, fictions and concepts of Hindu religion are not relevant for the
controversy to be adjudicated in the 4 suits referred to above.
23. That the contents of para 23 of the plaint are denied. The narration of
307
history in the plaint is false and baseless. No authentic book of history has
been referred in the plaint. The premises has always been a mosque since its
construction in sixteenth century, it has always been used by the muslims for
offering namaz and for no other purpose. Remark in the gazette is not an
authentic record of history. It is only a generalised observation, the Gazette
also does not make any reference of any authentic history or record. The
pillars are not of Kasauti. However, it is not relevant as the fact remains that
it is a mosque, and has always been used as mosque and it is wholly
incorrect that anybody else other than muslims worshipped in the building
which is called Babri Masjid. The narration of history by the plaintiff is
baseless and false. There is no evidence of the demolition of any temple for
the construction of this mosque.
24. That the contents of para 24 of the plaint are vehemently denied, the
quotation from Holy Quran has been incorrectly quoted and the same is out
of context. There is no evidence of demolition of any temple. The contents
of sub-paras are also denied. On the basis of judicial records and other
evidence, it is clear that the premises in question has always been a mosque
in which muslims had been offering regular namaz up to 22
nd
December,
1949. No specific shape or specific design has been prescribed for the
mosque in Islam. The shapes and architectural designs of the mosque vary
in different parts of the world and even in India. The Ganj-e-Shahidan also
belongs to muslims and vests in God Almighty.
25. That the contents of para 25 of the plaint are denied. The building has
always been a mosque.
26. That the contents of para 26 of the plaint are vehemently denied. The
building known as Babri Masjid has always been in use as a mosque and the
muslims have offered namaz in it since its construction till 22
nd
December,
1949. some of those who offered Namaz in it are still available. Some part
of the mosque was damaged in the communal riot of 1934 and the same was
repaired soon thereafter. The threat contained in the para under reply is most
unwarranted. There is no dispute between Shias and Sunnis over the mosque
in question. Mosque is vested in almighty and every Muslim (Shias or
Sunnis) have the right to offer Namaz in any Masjid. The averments in the
para under reply are wholly incorrect and false.
308
27. That the contents of para 27 of the plaint are vehemently denied. As
narrated in the foregoing paragraphs, some persons between the night of
22/23 December, 1949, illegally entered into the mosque about which FIR
was lodged at the police station, Ayodhya in the morning of 23
rd
December,
1949. Some of the culprits were named in the F.I.R. and on that basis the
proceedings u/s 145 Cr.P.C. were initiated and the mosque was attached, the
attachment continues; there was no so called ceremony nor any supernatural
happening. Kindly see Addl. Pleas.
28. That the contents of para 28 of the plaint are vehemently denied. It is
incorrect that muslims do not live nearby. They do live there but the
muslims were not in a position to prevent the aforesaid illegal act done with
the connivance of the local administration. The muslims acted as the law
abiding citizens and pursued the legal remedy available to them but no party
can be permitted to take benefit of the delay caused in a Court of law. Here
it may also be pointed out that the rights of the muslims to offer namaz
should have been protected but the machinery of law failed in it. Only the
muslims still have the right to offer namaz in the building and no other
community has any right in the said building. The proceedings u/s 145
Cr.P.C have not been dropped but after the filing of the suits the proceedings
u/s 145 Cr.P.C. were stopped and consigned to record.
29. That in view of the submissions made in the foregoing paragraphs the
contents of para 29 of the plaint are denied. Neither there is any deity and
nor there could be any impleadment of it. Plaintiff no. 3 also has no locus
standi and so also plaintiffs no. 1 and 2.
30. That the contents of para 30 of the plaint are denied. There is no
question of any devotee, and the present campaign and proclamation made in
the plaint has nothing to do with the struggle for freedom of the country.
There is no question of construction of any temple there such an attempt will
be resisted, there is no legal right for the construction of temple on the site in
question. The assertion in the para under reply are most unwarranted,
amount to incitement of an offence, and also amount to contempt, by way of
undermining the authority of this Hon'ble Court as, it may be pointed out
that the interim order passed by this Hon'ble Court on 3.2.1986 in W.P. 746
of 1986 for maintaining status quo, is still in operation.
309
31. That the contents of para 31 of the plaint are denied. As there is no
deity there is no question of its next friend and a judicial decision will be
binding upon all. Disregard of the Rule of law pleaded in the plaint is
regretted.
32. That the contents of para 32 of the plaint are denied. The matter has
already been adjudicated.
33. That the contents of para 33 of the plaint are denied. It may be
pointed out that the entire complex belongs to Waqf Babri Masjid, the
existence of which cannot be denied.
34. That the contents of para 34 of the plaint are vehemently denied. The
premises has always been a mosque and it has been used as such and no one
can remove the structure.
35. That no doubt that the muslims fear the God, other contents of para 35
of the plaint are denied. None of the plaintiff has any status to maintain the
suit.
36. That the contents of para 36 of the plaint are denied. Plaintiff has no
cause of action including the plaintiff no. 3 The cause of action, if any, had
accrued in 1950.
37. That the contents of para 37 of the plaint need no reply.
38. That the contents of para 38 of the plaint are denied, the contents of
para 38 of plaint are vague and property in suit has not been properly valued.
39. That the contents of para 39 of the plaint are denied, the plaintiffs are
not entitled to get any relief and the suit is liable to be dismissed with special
costs.
ADDITIONAL PLEAS
40. That on behalf of the All India Shia Conference it may be pointed out
that the premises in question always has been mosque and it is a mosque.
41. That in the night of 22/23
rd
December, 1949 certain persons forcibly
entered into the mosque and put an idol in the same; against them an F.I.R.
was lodged in the Police Station, Ayodhya in the morning of 23
rd
of
December, 1949. A case under Section 448, 147, 148 I.P.C. etc. was
310
registered, on the basis of that F.I.R. the proceedings under Section 145 were
taken and the premises was attached. A receiver was appointed in the
proceedings under section 145 of the Cr.P.C. later that arrangement was also
maintained by the Civil Court in the Civil suits. The said premises is still
under the control of the receiver and in other words the same is under the
control of the Court. The premises when ever released must go to the
Muslims to be used as a mosque. And no one has any right in respect of this
premises except Muslims.
42. That it may also be pointed out that the suit is not maintainable. There
is no Hindu deity as juristic person in relation to the premises in question nor
there is any Hindu deity with the name and style of Asthan Sri Ram Janam
Bhumi Ayodhya. It may also be pointed out that Sri Deoki Nandan Agarwal
has no nexus with the premises in question nor he has any managerial and
beneficial interest. He cannot be next friend to the deity. Hence the suit is
not maintainable.
Sd/-
Place:Lucknow Syed Mohd. Hasnain Abidi
Dated:16.9.89/18.9.89 Hony. General Secretary
All India Shia Conference.
Defendant No. 25.
311
OtherOriginalSuitNo.5of1989
At the instance of Sri R.L. Varma, Sri Deoki Nandan Agarwal
makesthefollowingclarificationunderOrder10Rule2C.P.C.

IntheearlyhoursofDecember,23,1949theidolofBhagwanSri
RamLala,whichwasalreadyonRamChabutrawastransferredtothe
placewherehepresentlysits,thatis,underthecentraldomeofthe
disputed building. I was not personally present at that time at the
p[lace. This information was conveyed to me by Paramhans Ram
ChandraDasofDigamberAkhara.Thistransferoftheidolwasdone
by Paramhans Ram Chandra Das and Baba Abhi Ram Das and
certainotherpersonswhosenameIdonotrememberatthemoment.
Iwillhavetolookintotherecordtogivetheirnames.
TheidolisChalVigraha(moveableidol).
ParamhansRamChandraDashadinformedmethatallthedue
ceremonieswereperformedwhentheidolwastransferred.
Presently, the property in suit is bounded on three sides by a
wallconstructedbytheStateGovernmentrecentlyandonthenorth
bypublicroad.
The entire area enclosed by the aforesaid wall belongs to the
deity.
30.04.1992 Sd/illegible
MHS/ 30.4.92
312
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH: LUCKNOW
OTHER ORIGINAL SUIT NO.5 OF 1989
(Regular Suit No.236/89)
Bhagwan Sri Ram Birajman and others ..Plaintiff.
Versus
Sri Rajendra Singh and others Defendants
Following Issues have been framed by this Court.
Issues:-
1. whether the plaintiffs 1 and 2 are juridical persons ?
2. whether the suit in the name of deities described in the plaint as
plaintiffs 1 and 2 is not maintainable through plaintiff no.3 as next
friend ?
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 on 30.4.92 in their statement under order 10 Rule 2 C.P.C. ?
3 (b) Whether the same idol was reinstalled at the same place on a chabutra
under the canopy?
Issue No.3 (c):-
Whether the idols were placed at the disputed site on or after 6.12.92
in violation of the courts order dated 14.8.1989, 7.11.1989 and
15.11.91 ?
Issue No.3 (d):-
If the aforesaid issue is answered in the affirmative, whether the idols
so placed still acquire the status of a deity ?
Issue as it stands now
(4) Whether the idols in question has been in existence under the
Shikhar prior to 6.12.92 from time immemorial as alleged in
paragraph-44 of the additional written statement of defendant no.3 ?
(5) Is the property in question properly identified and described in the
plaint?
313
(6) Is the plaintiff No.3 not entitled to represent the plaintiffs 1 and 2 as
their next friend and is the suit not competent on this account?
(7) Whether the defendant no.3, alone is entitled to represent plaintiffs 1
and 2 and is the suit not competent on that account as alleged in
paragraph 49 of the additional written statement of defendant no.3 ?
(8) Is the defendant Nirmohi Akhara the Shebait of Bhagwan Sri Rama
installed in the disputed structure ?
(9) Was the disputed structure a mosque known as Babri Masjid ?
(10) Whether the disputed structure could be treated to be a mosque on the
allegations contained in paragraph 24 of the plaint ?
(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 is
as a mosque ?
(12) Of the structure in question is held to be mosque, can the same can be
shifted as pleaded in paragraphs 34 and 35 of the plaint ?
deleted vide court order
dated 23.2.96
(13) Whether the suit is barred by limitation ?
(14) Whether the disputed structure claimed to be Babri Masjid was erected
after demolishing Janma-Sthan temple at its site.
Issue No.15:-
Whether the disputed structure claimed to be Babri Masjid was always
used by the Muslims only reggularly for offering Namaz ever since its
alleged construction in 1528 A.D. to 22
nd
December 1949 as alleged
by the defendants 4 and 5 ?
Issue No.16:-
Whether the title of plaintiffs 1 & 2, if any, was extinguished as
alleged in paragraph 25 of the written statement of defendant no.4 ? If
yes, have plaintiffs 1 & 2 re-acquired title by adverse possession as
alleged in paragraph 29 of the plaint ?
314
Issue No.17:
Whether on any part of the land surrounding the structure in dispute
there are graves and is any part of that land a Muslim Waqf for a
grave-yard ?
deleted vide this Hon'ble Court
order dated 23.2.96
Issue no.18:-
Whether the suit is barred by section 34 of the the Specific Relief Act
as alleged in paragraph 42 of the additional written statement of
defendant no.3 and also as alleged in paragraph 47 of the written
statement of defendant no.4 and paragraph 62 of the written statement
of defendant No.5 ?
Issue no.19:-
Whether the suit is bad for non-joinder of necessary parties, as pleaded
in paragraph 43 of the additional written statement of defendant
No.3 ?
Issue no.20:-
Whether the alleged Trust, creating the Nyas defendant no.21, is void
on the facts and grounds stated in paragraph 47 of the written
statement of defendant no.3 ?
Issue no.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 no.4 and in paragraph 1 of the written statement of
defendant no.5 ?
Issue no.22:-
Whether the premises in question or any part thereof is by tradition,
belief and faith the birth place of Lord Rama as alleged in paragraphs
19 and 20 of the plaint If so, its effect ?
Issue no.23:-
Whether the judgment in suit No.61/280 of 1885 filed by Mahant
315
Raghuber Das in the Court of Special Judge, Faizabad is binding upon
the plaintiffs by application of the principles of estoppel and res
judicate as alleged by the defendants 4 and 5 ?
Issue no.24:-
Whether worship has been done of the alleged plaintiff deity on the
premises in suit since time immemorial as alleged in paragraph 25 of
the plaint?
Issue no.25:-
Whether the judgment and decree dated 30
th
March 1946 passed in
suit no.29 of 1945 is not binding upon the plaintiffs as alleged by the
plaintiffs ?
Issue no.26:-
Whether the suit is bad for want of notice under Section 80 C.P.C. as
alleged by the defendants 4 and 5 ?
Issue no.27:-
Whether the plea of suit being bad for want of notice under Section 80
C.P.C. can be raised by defendants 4 and 5 ?
Issue no.28:-
Whether the suit is bad for want of notice under Section 65 of the U.P.
Muslim Waqfs Act, 1960 as alleged by defendants 4 and 5 ? If so, its
effect.
Issue no.29:-
Whether the plaintiffs are precluded from bringing the present suit on
account of dismissal of suit no.57 of 1978 (Bhagwan Sri Ram Lala Vs.
State) of the Court of Munsif Sadar, Faizabad.
Issue no.30:-
To what relief, if any, are plaintiffs or any of them entitled ?

316

In the High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow
O.O.S.No.3 of 1989 (R.S. No.26-59)
Plaint under Order 7 rule 1 C.P.C.
1. Nirmohi Akhara situate in mohalla Ramghat City Ayodhya
though Mahant Jagar Nath Das aged about 54 years chela of
Mahant, Mahant and Jarbarahkar, resident of Nirmohi
Akhara, Mohalla Ramghat Ayodhya district Faizabad.
substituted vide order dated 23.7.66
sd/-
Substituted vide court order dt.11.7.78
Sd/-
amended vide order dated 8.7.67 Sd./-
2. Vaishnab Das r/o Nirmohi Bazar Ramghat Oudh City
Ayodhya District Faizabad added vide courts order dtd.
1.9.95
Versus
1. Shri Jamuna Prasad Singh amended vide the order
dt.23.10.89 on
44(O) by this Hon'ble Court Sd./- 28.10.98
2. State of Uttar Pradesh
3. Deputy Commissioner, Faizabad
4. City magistrate, Faizabad
5. Superintendent of Police, Faizabad
6/1. Haji Mehboob (adult)
6. died Haji Phekku aged 70 years son of unknown, r/o Mohalla
Terhi Bazar.
6/2. Haji Abdul Ahed both R/o Mohalla Terhi Bazar of Mohalla
Terhi Bazar. City Ayodhya The. & Distt. Faizabad.
7. Mohd. Faiq aged 50 years son of Haji Ramzan r/o Terhi
Bazar
Amended under the court order Sd./-20.9.61
1
8. Mohd. Achhan Mian aged about 55 years son of unknown r/o
Mohalla Katra.
9. U.P. Sunni Central Board of Waqfs through its Secretary,
Lucknow
Amended vide order dt.23.8.89 this Hon'ble
Court Sd./-
(6 to 8) City Ayodhya pargana Haveli Oudh Tahsil and district
Faizabad on behalf of themselves and all other members of the
Muslim Community.
10. Umesh Chandra Pandey aged 34 years S/o Shri Ram Shanker
Pandey S/o rampali Ayodhya City Distt. Faizabd (Haveli
Oudh)
11. Mohd. Farook S/o Zahoor Ahamad r/o Singarhat Ayodhya
Distt. Faizabad.
Amended by the order of this Hon'ble
Court dt. 3.12.91 Sd./- 3.12.91
Suit for removal from management and charge of Temple
Janma Bhoomi and delivery of the same.
1. That there exists in Ayodhya, since the days of Yore an
ancient Math or Akhara of Ramanandi Varagis called Nirmohis with
its seat at Ramghat known as Nirmohi Akhara, the plaintiff no.1,
which is a religious establishment of a public character, whereof the
plaintiff no.2 is the present head as its Mahant and Sarbrahkar.
2. That Janma Asthan now commonly known as Janma Bhumi,
the birth place of Lord Ram Chandra, situate in Ayodhya belongs
and has always belonged to the plaintiff no.1 who through its
reigning Mahant and Sarbrahkar has ever since been managing it
and receiving offerings made there at in form of money, sweets,
flowers and fruits and other articles and things.
3. That the said Asthan of Janma Bhumi is of ancient antiquity
and has been existing since before the living memory of man and
lies within the boundaries shown by letters A.B.C.D. in the sketch
map appended hereto within which stands the temple building of
Janma Bhumi marked by letters E.F.G.K P N M L E and the
2
building denoted by letters E F G H I J K L E is the main temple of
Janma Bhumi wherein is installed the idol of Lord Ram Chandra
with Lakshmanji, Hanumanji and Saligramji.
4. That the said temple has ever since been in the possession of
the plaintiff no.1 and none others but Hindus have ever since been
allowed to enter or worship therein and offerings made there which
have been in form of money, sweets, flowers and fruits and other
articles and things have always been received by the plaintifs
through their pujaris.
Para 4A-XI That before the Judgment of the Writ Petition of
11.12.92 on 6
th
Dec. 1992 the Temples of Nirmohi Akhara were also
demolished by some miscreants who had no religion caste or creed.
Para 4A-XII. The main temple was demolished on 6
th
Dec.
1992.
Para 10 (Last) and further cause of action against defendants 1 to
5 arises during pendency of the suit when the property and temples
of plaintiff was demolished on 6
th
Dec. 1992 by same miscreants
within the Jurisdiction of this Court. amended and added to
plaint vide Courts order
dt. 25.5.95 Sd./- 30.5.95
Para 4A. That Nirmohi Akhara plaintiff is the Panchyati Math of
Ram Nandi sect. of Vairagies and as such is a religious
denomination following its own religious faith and pursuit
according to its own custom prevalent in Vairagies sect of Sadhus.
The customs of Akhara Nirmohi have redued in writing on
19.3.1949 by Reg. deed.
Para 4B That plaintiff Nirmohi Akhara owns several temples in
it and manages all of such temples through Panches and Mahants
of Akhrara. The whole temples and properties vest in Akhara i.e.
plaintiff. The plaintiff being a Panchyati Math acts on democratic
pattern. The management and right to management of all temples
of Akhrara vest absolutely with Panches of Akhara and Mahant
3
being formal head of Institution is to act on majority opinion of
Panches.
Amended and added vide
Courts order dt. 25.5.95
Sd./- 30.5.95
5. That no Mohammadan could or ever did enter in the said
temple building. But even if it be attempted to be proved that any
Mohammadan ever entered it, which would be totally wrong and is
denied by the plaintiffs, no Mohammadan has ever been allowed to
enter it or has even attempted to enter it at least ever since the year
1934.
6. That in the year 1950, the City magistrate, Faizabad, the
defendant No.4 without any lawful cause and with the active
connivance of defendant no.2,3 and 5 and under the wrong
persuasion of defendants nos.6 to 8 who claim to represent the
Muslim community, attached the main temple shown by letters E F
G H I J K L E in the said sketch map with all the articles mentioned
in list A appended hereto in a proceeding u/s 145 Cr.P.C. and
placed the said temple and the articles under the charge of
defendant no.1 as receiver on 5.1.1950.
7. That the plaintiffs have been wrongfully deprived of their
management and charge of the said temple and have ever since the
said wrongful attachment been waiting for the dropping of the
proceedings u/s 145 Cr.P.C. but the same are unduly prolonged and
lingered with the connivance of all the defendants and since no
immediate termination of the same seems to be in sight and since
the defendant no.4 refuses in connivance with other defendants to
hand over charge and amendment of the temple to the plaintiffs
from the hands of the receiver, the institution of the present suit has
become inevitable.
8. That the plaintiffs are entitled that the management and
charge of the said temple be delivered to the plaintiff no.1 through
the plaintiff no.2 the formers mahant and Sarbarhrahkar.
4
9. That the defendants 6 to 8 claim to be the representatives of
the Muslim Community which has got itself interested in the
subject-matter of the suit in not getting the charge and management
of the temple delivered to the plaintiffs and are exercising undue
influence on the defendants 1 to 5. They are sued in their
representative capacity on behalf of the entire Muslim community
with the permission of the court.
10. That the cause of action for the suit arose within the
jurisdiction of this Hon'ble Court on 5.1.50 on the defendant no.4
illegally taking over the management and charge of the temple with
the said articles and entrusting it to the said receiver, the defendant
no.1.
11. That the relief claimed by the plaintiffs is incapable of
valuation the valuation for the purpose of jurisdiction is fixed at
Rs.10,000/- and court fee of Rs.100/- is paid under schedule II
Article 17 (6) of the Court fees Act.
12. That the notice of the suit as required by sec.80 C.P.C. has
been given to the defendants 1 to 5 which was delivered to them
between 6.10.59 and 12.10.59 and which has been replied by them
through the defendant no.3 intimating their decision to defend the
present suit.
13. That the permission of the court to file the suit against the
defendants 6 to 8 on behalf of the themselves and all other members
of the Muslim community has been obtained under order 1 rule 8
C.P.C.
1. Wherefore the plaintiffs pray for the following reliefs:-
(a) A decree be passed in favour of the plaintiffs against the
defendants for removal of the defendant no.1 from the management
and charge of the said temple of Janma Bhoomi and for delivering
the same to the plaintiff through its Mahant and Sarbarhrahkar
Mahant Jagannath Das. amended vide
Hon'ble Courts
order dt. 14.5.90 Sd./-
5
14.5.90
(b) Any other relief which the court may deem fit and proper.
(c) The cost of the suit be awarded to the plaintiffs.

6
O.O.S. No.3 of 1989
(Regular Suit No.26 of 1959)
Nirmohi Akhara .Plaintiff
Versus
Babu Priya Dutt Ram (Deceased) and others Defendants
Additional Written Statement of Defendant No.9 (U.P. Sunni
Central Board of Wakf).
The Defendant No.9 begs to submit as under:-
1. That the contents of para 4-A of the amended plaint are denied as
stated and in reply thereto it is submitted that the Plaintiff is put
to strict proof of the averments of the para under reply.
2. That the contents of para 4-B of the amended plaint are also
incorrect, hence denied as stated. The averments of the para
under reply are even vague and unspecific and the plaintiff is put
to strict proof of the same.
3. That the contents of para 4-G XI are also quite vague and
ambiguous and hence are denied as stated. In this respect it is
submitted that on 6
th
December, 1992 the so-called Ram chabutra
was demolished alongwith the Babri Masjid by the miscreants
collected at the instance of Vishwa Hindu Parishad etc.
4. That in reply to para 4-G XII of the amended plaint it is
submitted that on 6
th
December, 1992 the building of the Mosque
was demolished and the same could not be called or alleged to be
the Main Temple.
7
5. That the contents of para 10 of the amended plaint are also
denied as stated and in reply thereto it is submitted that the
averments of the para under reply are quite vague as the
plaintiffs suit does not pertain tot he so-called Ram Chabutra
hence no cause of action can be said to have arisen to the
plaintiff during the pendency of the suit on account of the
demolition of the said Chabutra.
6. That in reply to the said amended portion of the plaint averments
of the written statement of the answering defendant are also
reiterated and it is further submitted that amendments made in
the plaint are quite vague and ambiguous and the same are liable
to be deleted.
8
WRITTEN STATEMENT UNDER ORDER VIII RULE I
C.P.C. IN OTHER ORIGINAL SUIT NO.3 OF 1989
Nirmohi Aakhada etc. ..Plaintiffs
Versus
Baboo Priya Dutt Ram & others ..Defendants
Written Statement of the Defendant Umesh chandra Pandey
1. That the contents of para 1 of the plaint are not admitted. The
plaintiff no.2, Mahant Raghu Nath Das, died and there has
been no proper substitution in his place.
2. That the contents of para 2 of the plaint are denied. However,
it is submitted that the Janma & Asthan is a holy place of
worship and belongs to the deity of Bhagwan SHRI RAM
LALLA VIRAJMAN there. It never belonged to and could
not have belonged to the plaintiff no.1. It is denied that the
plaintiff no.1 ever managed it.
3. That the contents of para 3 of the plaint, as written are denied.
The holy JANMA ASTHAN OR JANMA BHUMI is actually
a very very old temple, whereas the plaintiff AKHADA on
the other hand is an institution and owes its existence for no
longer than two hundred years. The correctness of the sketch
map and the boundaries of the temple with reference to the
map are not disputed. The main presiding deity of the temple
is BHAGWAN SHRI RAM, although there are several other
idols of other deities, termed as RAM DARBAR and are
worshiped. Besides, there are other symbols, such as,
CHARAN, SITA RASOI etc. through whom the deity of
BHAGWAN SHRI RAM therein is worshiped at SHRI RAM
JANMA BHUMI, in addition to the ASTHAN OF SHRI
RAM JANMA BHUMI, which by itself is a deity and
worshiped as such.
9
4. That the contents of para 4 of the plaint are not admitted. A
Hindu Temple is deemed to be possessed and owned by a
deity. The principal deity of SHRI RAM JANMA BHUMI is
BHAGWAN SHRI RAM. Any offerings must have been
received by the Manager of the same from time.
5. That the contents of para 5 of the plaint are not admitted in
the form they have been pleaded. Although it is made to
appear that in he first war of independence in the year 1857
A.D., the British, to divide the Hindus and Muslims, mala
fide acted by dividing the said ASTHAN by creating an inner
enclosure and describing the boundary within the inner
enclosure as a mosque but no Muslim who was a true
Muslim, would appear to have frequented it for offering his
prayer as the same is prohibited by the SHARIYAT.
Moreover even ALAMGIR (EMPEROR AURANGZED)
issued a mandate, known as FATWA-E-ALAMGIRI which
clearly prohibits the offering of prayer by Muslim at such
places. More so the KASAUTI pillars and the carvings of
Gods and Goddesses thereon will clearly show that this place
could not be used by a true Muslim for offering his prayers
therein. It will also be seen that the place wrongly alleged as
mosque virtually stood land-locked by Hindu Temple,
wherein there was the worship of the deity going on. Entry to
this inner enclosure was also obstructed.
The British tried to set up the descendents of MIR BAQI, a
Shiya Muslim, as the MUTWALLI, but he denied the
TAULLAT and never looked after the disputed place in any
capacity, what to say of looking after as a MUTWALLI
thereof.
10
6. That the contents of para 6 of the plaint are denied. The
building was attached and the Receiver appointed by the
order dated 29.12.1949 by the court of Additional City
Magistrate, Faizabad. In the said proceedings, which was
under Section 145 Cr.P.C. (As it then stood), the Muslims also
joined. all those Muslim gentlemen, who have been arrayed
as defendant Nos.6 to 8 in the suit, have died. The real and
legal representatives of the defendant Nos.6 to 8 have not
been properly brought on record, in accordance with the
provisions of law.
In view of the facts stated hereinabove, the cause of action for
the present suit, does not arise. The suit stands abated
completely on the death of the last one of the defendants No.6
to 8, which occurred many years ago. The defendant Nos.3,4
and 5 to the suit are the mere posts and offices and are not
juristic persons. The suit against them does not lie. So far as
the defendant No.2 is concerned, it has not been impleaded in
accordance with the provisions of law.
7. That the contents of para 7 of the plaint are not admitted. The
plaintiff is not entitled to file the suit which apparently is
beyond the period of limitation prescribed therefor in
accordance with the provisions of law. The plaintiffs did not
join the proceedings under Section 145 Cr.P.C. nor did they
file any revision against the order passed by the Additional
City Magistrate, in the competent court of law.
8. That the contents of para 8 of the plaint are denied. The
plaintiff No.2 died and there is no proper and legal
substitution made in the plaint.
9. That the contents of para 9 of the plaint are incorrect and are
denied. No Muslim individual came to contest the said case
as the representative of the Muslim community. The
defendant Nos.6 to 8 were all Sunnis and they could not
11
represent the Shia community of the Mohammedans. As
such, it can not be said that the defendants Nos.6 to 8 could or
were representing the Muslim community in general.
10. That the contents of para 10 of the plaint are not admitted.
On the own showing of the plaintiffs, the cause of action
arose in their favour on 5.1.1950, whereas the suit was filed
by them in the year 1959. Thus the suit has been filed beyond
the prescribed period of limitation. Further the plaintiffs,
being not the Manager or the next friend, of the deity, are not
entitled to file the suit.
11. That the contents of para 11 of the plaint are not admitted.
The suit has not been valued in accordance with the
provisions of law and, therefore, the payment of court fees
also is not according to the provisions of law.
12. That the contents of para 12 of the plaint are denied for want
of proper knowledge.
13. That the contents of para 13 of the plaint are not admitted.
Even if any such permission, as mentioned by the plaintiffs,
to sue the defendants No.6 to 8 on behalf of themselves and
on behalf of all the members of the Muslim community, has
been obtained under Order 1 Rule 8 of C.P.C., then it must be
illegal and deserves to be recalled.
14. The plaintiffs are not entitled to the reliefs claimed.
ADDITIONAL PLEAS
15. That the suit, as framed, is bad in the eye of law. The
defendants No.3 to 5 are mere posts and offices and are not
juristic persons. The defendant No.2 has not been properly
impleaded as a party to the suit. As such, the plaintiffs suit is
bad for the misjoinder of parties as also for non-joinder of
necessary persons as the parties tot he suit.
12
16. That the plaintiffs suit is barred by the provisions of Indian
Limitation Act, as the same is much beyond the period of
limitation prescribed by law.
17. That the plaintiffs had adequate remedies under the
provisions of the Code of Criminal Procedure (as it then
stood) against the order, Returning Officer passed by the
Additional City Magistrate, Faizabad under Section 145 of
the Cr.P.C. The plaintiffs, having not availed of the said
remedy within the time prescribed therefor and having not
filed the suit within limitation prescribed therefor, their suit is
liable to be dismissed on that score.
18. That at any rate, the Receiver appointed by the Additional
City Magistrate, Faizabad under the provisions of the Section
145 Cr.P.C. having died and subsequently the Receiver
having been appointed by the Civil Court in the Civil Suit
under the provisions of the Civil Procedure Code, the present
suit of the plaintiffs in its present form, can not proceed and
deserves to be dismissed on this count also.
19. That even if the Receiver, appointed by the Civil Court, is or
be impleaded in the suit, then the same is illegal and without
jurisdiction.
In this very court another suit the other original suit No.4 of
1989 (Regular Suit No.12 of 1961) is pending, wherein the
plaintiffs in this suit are a party. If they have any right or
claim for restoration of the property, alleged to be their, they
could and can get their relief in the said other Original Suit
No.4 of 1989.
20. That the Original Suit No.3 of 1989 (Suit No.26 of 1989) and
the other Original Suit No.4 of 1989 (Regular Suit No.12 of
1961) are separate suits with different reliefs claimed and
different causes of action. These two suits can not be termed
13
as the suits having been consolidated together, since the same
would amount the misjoinder of causes of action. They can
not be tried together.
21. That in view of the facts, stated hereinbefore, the suit
(O.O.S.No.3 of 1989) is liable to be tried separately and is
liable to be dismissed with costs.
14
O.O.S. No.3 of 1989 (R.S. No.26-59)
In the Court of the Civil Judge, Faizabad
Reg. Suit No.26 of 1959
Nirmohi Akhara and another ..Plaintiffs
Versus
Babu Priya Datta Ram and others Defendants
Replication to the Joint Written Statement filed by defendants 6
to 8 Hazi Faiku (since dead) Hazi Muhammad Faiq and Ahmad
Husain alias Achhan.
The contents of paras 1 to 14 of the plaint are correct and those of
W.S. are wrong and denied.
Para 15. The allegations contained in para 15 of the written
statement are totally incorrect and are denied. The property in suit
is neither a mosque nor is it known as Babri Mosque, nor was it
built by Emperor Babar through Mir Abdul Baqi. Nor was it made
wakf. The property in suit is the temple of Janma Bhumi.
Para 16. The contents of para 16 of the written statement are totally
incorrect and are denied.
Para 17. The contents of para 6 of the written statement are denied.
Janma Asthan is a different temple not connected with the temple of
Janma Bhumi and with which the plaintiffs have no concern. The
temple of Janma Asthan is situated to the north of the temple of
Janma Bhumi across the road passing between Janma Bhumi and
Janma Asthan. The plaintiffs are not aware of the said suit, if any,
filed by any person known as Mahat Raghubar Das as Mahant of
Janma Asthan.
15
Para 18. The contents of para 18 of the written statement are totally
wrong and are denied. If any, sketch map be found to have been
filed by the said Raghubar Das in the said suit it would be totally
false, fictitious and collusive and is not binding on the plaintiffs.
The building in suit is nothing else but the temple of Janma Bhumi.
para 19. The contents of para 19 of the written statement are denied.
Para 20. That contents of para 20 of the written statement are pure
concoctions are denied.
para 21. The contents of para 21 of the written statement are denied.
It was beyond the authority and jurisdiction of the said Chief
Commissioner of waqf to declare the temple of Janma Bhumi as a
mosque. His decision and declaration to the said effect, if any, is
totally null and void. The said notification, if any, is also null and
void and of no effect in law. The plaintiffs were never intimated of
any proceedings held by the said Chief Commissioner regarding the
temple of Janma Bhumi, that is, the building in suit and if any
proceedings were conducted secretly and surreptitiously they have
no effect in law. The said notification, if any, is neither final nor is
it binding on the plaintiffs.
Para 22. The contents of para 22 of the written statement are totally
false and are denied. The Muslims were never in possession of the
building in suit and the allegation regarding the perfecting of the
right of the muslims over the building in question by adverse
possession is a pure fiction, concocted for the purposes of the suit.
Para 23. The contents of para 23 of the written statement are totally
false. The plaintiffs have always been in peaceful possession of the
16
building in suit.
Para 24. The contents of para 24 of the written statement are
denied. The plaintiffs have ever been in possession of the temple in
suit and no question of expiry of the period of limitation arises.
Para 25. The contents of praa 25 of the written statement are
denied. Proper notice u/s 80 of the C.P.C. was given to the
defendants 1 to 5. The other defendants have no right to take the
plea of want of notice to the defendants 1 to 5.
Para 26. The contents of para 26 of the written statement are
deliberately false and are denied. The muslim defendants as well as
the other defendants and the whole muslim community know that
the idol of the deity are installed in the building in suit i.e. in the
temple of Janma Bhumi and regular puja of the idol is being
performed under the receivership of the defendant no.1. No prayers
were ever offered by any muslim in the said building. The
suggestion of the defendants that any idol were installed in the suit
building stealthily is false and malicious. The said building is not a
mosque and the relief asked for is within the competence and
jurisdiction of the civil court to grant.
Para 27. The contents of para 27 of the written statement are false,
malicious and scandalous. It was the temple of Janma Bhumi
which was the subject matter of proceeding under Section 145
Cr.P.C. and not any mosque as also admitted by muslims in the said
proceeding. It is admitted that the proceedings under section 145
Cr.P.C. were illegal and were in total denial of justice to and in
flagrant invasion on the fundamental rights of the plaintiffs in
regard to their management of the said temple. The defendants had
17
no interest in the building in suit and no question of invasion over
their rights arises. It is the plaintiffs who have suffered the real loss
and who have been deprived of their right of management of the
said temple and receiving offerings made thereat.
Para 28. The contents of para 28 of the written statement are totally
wrong and are scandalous. The only temple built on the sacred
place of the birth of Lord ram Chandra is the Janma Bhumi temple
in suit. There is no temple known as temple Janma Asthan as
suggested by the defendants built on the place of birth of Lord Ram
Chandra. The temple of Janma Asthan which is situate to the north
of the temple of Janma Bhumi in suit is a separate temple which is
not at all connected with place of birth of Lords Ram Chandra. The
defendants seem to exploit the name of the said temple to create a
confusion regarding the real place of birth of Lords Ram Chandra.
They should point out clearly by correct location as to which is the
Janma Asthan Temple mentioned in this para of their written
statement. The idols of Ram Chandra Ji and others are installed
in all the Hindu temples all the world over. The emphasis of
communal bias alleged in the written statement is misplaced. The
plaintiffs having been aggrieved by the invasion through the illegal
proceedings under Section 145 Cr.P.C. upon their fundamental
rights of managing their own temple have taken recourse to the
court of law in defence of their own legal right. it is the said
defendants who supported and instigated by their own fanatic
friends are advancing a false and a preposterous claim to the temple
of Janma Bhumi by blaspheming it with the name of Babari Masjid.
The plaintiffs claim has no relation with any election and to
characterise the plaintiffs claim as an attempt to jeopardize the
success of a secular state in India is simply scandalous. it is in fact
this defendants and their supporters who by denying the plaintiffs
rights and by putting up a false and a fanatic claim to the sacred
18
place of the birth of Lords Ram Chandra are out to blackmail the
noble efforts of the Indian people to the attainment of a secular
state.
Para 29. The contents of para 29 of the written statement are wrong
and are denied. The description of the property has been correctly
given in the plaint and the sketch map with all its inferences is
correct.
Para 30. In reply to para 30 of the written statement the plaintiffs
contend that they have been in possession and management of the
temple of Janma Bhumi ever since the living memory of man. The
said temple always belongs to the plaintiff and was managed
through his Sarbarahkar the plaintiff no.2 being the present
Sarbarahkar.
Para 31. The contents of para 31 of the written statement are denied.
Para 32. The contents of para 32 of the written statement are
denied. If the former Government ever acknowledged the temple of
Janma Bhumi in suit as Mosque it was simply preposterous and
collusive.
Para 33. That contents of para 33 of the written statement are
totally wrong and are denied. The plaintiffs suit as framed is
maintainable.
Para 34. That contents of para 34 of the written statement are
denied. The plaintiffs claim is perfectly justified. The plaintiffs
have been in possession of the temple in suit for an immemorial
19
time and e en through the evidence of the construction of the temple
by the plaintiff no.1 through his mac Sarbarahkar may not be
traced due to the lapse of immemorial age and want of written
records the plaintiffs have acquired title to it by open and adverse
possession for a period of time which is longer than the living
memory of man.
Para 35. The contents of para 35 of the written statement do not
call for a reply. The proceedings under order 1 rule 8 C.P.C. were
properly taken. The plaintiffs have no objection to any muslim
individual or institution joining the other defendants.
Para 36. The contents of para 36 of the written statement are
denied. It is the said defendants who are deliberately resisting the
plaintiffs claim on grounds known to them as false and it is they
who should be ordered to pay special cost to the plaintiffs.
20
O.O.S. 3/89
Nirmohi Akhara etc. Plaintiff
Versus
Babu Priyadatta Ram etc. Defendants
Replication on behalf of plantiff Nirmohi Akhara against the
written statement of Defendant No.10.
(a) That the allegations contained in plain from para 1 to 14 are
correct and are confirmed again.
(b) That the contents contained in para 1 of the written statement
of defendant No.10 are denied. The defendant Umesh Chandra was
not even in existence in the world when cause of action f the suit
accrued. Defendant No.10 has been made a tool and lever by
certain group of persons who want to demolish the secular sprit of
constitution of India and want to create confussion denying even the
mandate of order law occurs.
(c) That contents of para 3 as contained in the written statement
of defendant No.10 are denied. Umesh Chandra being of 32 years
of age cannot say anything about the Mahant of Nirmohi Akhara or
about its existence. Nor he has any clear conception of Nirmochi
Akhara which has its written customs being recognized some more
than 500 years ago, in continuity, some of customs are written in a
registered deed dated 19.3.49 (prior to date of attachment dated
29.12.49).
(d) That a chronological events of growth and existence of Math
witnessed a glorious revival of Hinduism with the advent of great
religious preceptor Shankracharya at the end of 7
th
century A.C.
The Hindus Maths were established for the first time by
Shankaracharya who himself founded four Maths at the four corner
21
of India (1) Goverdhan Math at Puri, (2) Jyoti Math at Badrinath,
(3) Saroda Math at Dwarka, (4) Sringari Math on the Tangabhadra.
(e) That practice of setting up Maths which was started by
Shankracharya was followed by almost all the religious Teachers
since then. The first in order of time was Ramanujacharya next
followed by RAMAND.
(f) That Ramanand founded a sect of Vaishnabs known as
Ramats which contains a large element of ascetic population who
are to be found in Baharas and Ayodhya Ramanand had established
several Maths. Ramanandi Maths consist solely of celebates. They
obey no caste rules and admit even Sudras in their brother-hood.
That RMATS worship one God in the form of Rama and they call
themselves Dasses servants of Lords. Thus existence of plaintiff
fraternity is coming down from the time of Rama Nand.
(g) That near about more than 500 years ago a great spiritual
preceptor known as Shri Swami Brijanand Ji and Shri Balanand Ji
belonging to Ramanandi sect of vairagies (belonging to fraternity of
plaintiff) had established three Annu known as (1) Nirmohi, (2)
Digamber, (3) Nirwani for protection, improvement of Chatuha
Rama Nandi Sampradaya comprising seven Akhara in it as
follows:-
(1) Sri Panch Ramanandi Nirmohi Akhara.
(2) Sri Panch Ramanandi Nirwani Akhara.
(3) Sri Panch Ramanandi Digambari Akhara.
(4) Sri Panch Ramanandi Santoshi Akhara.
(5) Sri Panch Ramanandi Khaki Akhara
(6) Sri Panch Ramanandi Niralambi
(7) Sri panch Ramanandi Maha Nirwani
(h) That aforesaid Akhara are Panchayati Math and act on a
domestic pattern. The real power vests in Panchas. The
22
appointment of Mahant is through election by Panchayat and has
becomes only a formal head of institution.
(i) The Nirmohi Akhara being a Panchayat Math can own
several temple in it as such Nirmohi Akhara owns a temple known
as Ram Janam Asthan i.e. Birth place of Lord Rama.
(j) That it would be pertinent to point out here that Kistwar plot
No.163 of first regular settlement of 1861 has been a very big plot
having 5 Bighas 19 Biswas of land in it but when in the year 1995
amended map was prepared a road bifurcating Janam Asthan now
known as Ram Janam Bhumi lies towards sough of the Road
whereas Janam Asthan of Gudar Dass lies towards north side of the
Road leading from Hanuman Garhi to Janam Bhumi Road as shown
in map of last settlement of 1937 A.D. by Kistwar no.159 and 160.
(k) That at the time of attachment of main building outer
enclosures comprising of Ram Chabutara where diety of Bhagwan
Ram Lala Ji is installed with Laxman Ji. Bharat Ji and Shatruhan Ji
in a cage (Guffa), situate both in the eastern side and western side
with Hanuman Ji are installed. The outer enclosure have
panchmukhi Shanker Ji, Ganesh Ji etc. also with Chhatti Pujan
Asthan where Holy Foot Prints of Lord Ram (Charo Bhaiya) are
penerial source of worship of followers of brotherhood of Ram
Nandi Vairagies. These outer enclosure was in possession of
Nirmohi Akhara as the Fard of 145 Cr.P.C. proceedings it self
depicts prior to attachment in 1882 Feb.
(l) The Nirmohi Akhara is a religious denominations and had
been maintaining managing the disputed temples since long and as
already said in the plaint always used to receive its offering
through Pujaris.
(m) That Baba Baldeo Das was pujari as well Panch of Nirmohi
Akhara when attachment was made. His desciple Bhaskar Das now
UP-SAPPANCH and General Agent of Nirmohi Akhara was there
23
with him discharging the duties of Pujari. According to custom of
Nirmohi Akhara 5 Sadhus 3 Pujaries 2 cooks and one Panch always
used to live at Shri Ram Janam Bhumi. Building certificate for
outer enclosure has always been passed in the name of Mahant
Raghunath Das of Akhara.
(n) That Lord Ram Chandra installed in main temple belonged to
Panchayati Math of Nirmohi Akhara. The big Deity of Lord Ram
Chandra installed therein, is Achal Deity while a little Ram Lalla Ji
as called Utsava Murti which according to custom prevalent in
Bairagi Sect of Sadhus in Ayodhya are used to discharge certain
outside ceremoney like Shrud Punoo etc. Beside there are six Salig
Ram Bhagwan. There are Singhasan Silver 2, one Murti of
Hanuman Ji and other parshades are there as detailed in para 3 of
the plaint.
(o) That Panchas of Nirmohi Akhara and Panchas of Nirwani
Akhara fought together against many civil forces to save Hanoman
Garhi and Ram Janam Bhumi and as such Hanuman Garhi belonged
to Panch Rama Nandi Nirwani Akhara similarly Sri Ram Janam
Bhumi belonged to Panch Ramanandi Nirmohi Akhara and same
custom riwaz Parampara as are applicable to Hanuman Garhi is and
used to be discharged for darshan of Hindu Public at large by
Nirmohi Akhara prior to attachment.
(p) That outer enclosure was owned and managed by Nirmohi
Akhara, Plaintiff. In the year 1967 it was released by court of City
Magistrate, Faizabad in favour Ram Lakhan Das, Goliki a Panch of
Nirmohi Akhara in inter see dispute. Again in the year 1973
Regular Suit No.9/73 in the court of Civil Judge, Faizabad and
several other disputed intersee upto Regular suit No.39/82 followed.
The Judicial record and its decisions are in favour of Nirmohi
Akhara proving the title and possession of plaintiff. Since 1982 the
outer enclosure is in possession of Receiver appointed by court in
regular suit No.39/82 pending in the court of civil Judge III
24
Faizabad.
(q) That contents of para 6 of written statement of defendant
No.10 are denied. The case was vehemently fought by Panch
Nirmohi Akhara. Baldeo Das was a prominent figure who started
Akhand Kirtan beneath Tin She Chabutara. He also filed written
statement in 145 Cr.P.C. proceeding. Several Mohamdans of
Vicinity had filed affidavit in favour of Nirmohi Akhara. The
parties arrayed have been arrayed legally and constructive presence
of all against whom order 1 rule 8 C.P.C. have been enlarged shall
be presumed to exist by motion of law. There is no question of
abatement in such a suit. The order dated 30.7.53 passed by City
Magistrate in case u/s 145 C.P.C. case No.1/2/18 was only to
consigned the record which shall be taken after the order of Civil
court.
(r) The contents of para 7 of written statement of defendant
No.10 are denied.
(s) That contents of para 8 of written statement of defendant
No.10 is denied. Plaintiff being Panchayati Math is a legal entity
which will never die. Some hidden greedy person may emerge to
say any thing to their lust against Nirmohi Akhara, but Nirmohi
Akhara as being eternal legal body had fought for and is fighting for
his legal right regarding disputed temple.
(t) That contents of para 8,9,10,11,12,13 and 14 of written
statement of defendant No.10 are denied.
(u) That contents of para 15 are denied being repetition only.
(v) That contents of para 17 are vague and are denied.
(w) That contents of para 18 and 10 of written statement of
defendant No.10 are denied. The defendant No.10 is too short to
give any advice to plaintiff.
(x) That contents of para 20 of written statement of defendant
No.10 are denied.
25
(y) That contents of para 21 of written statement of defendant
No.10 are misconceived and hence denied.
(z) That Umesh Chandra has been utilized just by Hindu Vishwa
Parishad only as a lever for some ulterior motive best known to
Umesh Chandra.

26
17.5.63
Present:SriSaravJeetLal,advocateforplaintiff.
AndSriMohd.Ayub,advocatefordefendants7&
8.
ShriSarabJeetLal,advocatestatesasfollows:
The plaintiff claims that this property in suit is
believed to be the birth place of Lord Ram Chandra Ji. So
there is a temple of Lord Ram Chandra on it. The plaintiff
claimsthatthistempleisinthemanagementandofcontrol
oftheplaintiff.Itisfurtherclarifiedthatthispropertyisnot
dedicatedtotheIdolalthoughthetempleismadeintheland
which is the birth place of Lord Ram. It is owned by the
plaintiffandthetemplewasmadebytheplaintiff.Itisadded
thatthepresentsuitisconfinedtopropertyshownbyletters
E,F,G,I,J,K,L.althoughindirectionswereshownbyletters
E,F,G,H,P,N,M,L,Ebelongstotheplaint.
Sd/illegible Sd/illegible
SarabJeetLal&Mohd.Ayub CivilJudge,
17.5
27
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH: LUCKNOW
OTHER ORIGINAL SUIT NO.3 OF 1989
(Reg. Suit No.26/59)
Nirmohi Akhara Vs. Babu Pirya Dutt Ram and others

Issues framed in the court of Civil Judges Faizabad on
17.5.1963
Issue No.1:-,
Is there a temple of Janam Bhumi with idols installed therein
as alleged in para 3 of the plaint ?
Issue No.2:-,
Does the property in suit belong to the plaintiff No.1 ?
Issue No.3:-
Have plaintiffs acquired title by adverse possession for over
12 years ?
Issue No.4:-
Are plaintiffs entitled to get management and charge of the
said temple ?
Issue No.5:-
Is the property in suit a mosque made by Emperor Babar
Known as Babari masjid ?
Issue No.6:-
Was the alleged mosqe dedicated by Emperor Babar for
worship by Muslims in general and made a public waqf
property ?
Issue No.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
?
b. Is the said notification final and binding ? Its effect.
Issue No.8:-
Have the rights of the plaintiffs extinguished for want of
28
possession for over 12 years prior to the suit ?
Issue No.9:-
Is the suit within time ?
Issue No.10:-
(a) Is the suit bad for want of notice u/s 80 C.
(b) Is the above plea available to contesting defendants ?
Issue No.11:-
Is the suit bad for non-joinder of necessary defendants ?
Issue No.12:-
Are defendants entitled to special costs u/s 35 C.P.C. ?
Issue No.13:-
To what relief, if any, is the plaintiff entitled ?
Issue No.14:-
Is the suit not maintainable as framed ?
Issue No.15:-
Is the suit properly valued and Court-Fee paid sufficient ?
Issue No.16:-
Is the suit bad for want of notice u/s 83 of U.P. Act 13 of
1936 ?
Issue No.17:-
(Added by this Hon'ble Court order dated 23.2.96) Whether
Nirmohi Akhara, Plaintiff, is Panchayati Math of Rama Nandi
sect of Bairagies and as such is a religious denomination
following its religious faith and per suit according to its
owner custom.
29
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ii i ii i :i .ii`iiii ii i-i : iiiii sii iit -iii iti ti :iiii ~ii .
ii`iiii i-i s iiiii i -ii ii ii iii -ii`tii i`iiii`ii ii ii iii ii tii
i-i i :i-ii -i ii :iii`-ii ii i :i-ii iiiii -i i`iii ii,:ii i`i t ~ii
iiii`iii i -i t iii( , :, t,~ii .ii`iiii i-i s iiiii ii
. , t :ssi ii .ii-i ~ii`iiii ii :ii-ii i iit t, ~ii
it i`iiii ~iiiii -ii iii t ~ii ii`i it :ii iii iii i iiii i i`i t,
~ii it ii-i-i -ii:ii iii ~ii`iiii t~ii
31
v 6 it i`i ii -i-i ii i`iii iii iiii:+iiii :ii:sc;c:i ;:i
iiiiii i :ii-ii i iii -ii t ~ii t i ii-iiii ii iiiii ii-iii
iii i -iiii iii-ii ~ii`iiii i .iii i -i .ii`iiiiii ii ~iii`ii i ~iii
t:ii -i tii ti :i ;:i iiiiii i :ii-iii`iii -i -ii t
v 6+ it i`i -ii iii ii -ii iii ii i` iii zs.:z.s ii ti iii
ii-iii iii :iii -i-i i iiii`ii iii`iiii t ~ii :iii ii ~i-ii i`-iii ii
it i :i-i:i iii-ii ~ii`iii .ii-i t ~ii ii-iii iii ii ii ii iiii ii
~ii`iii t , .ii`iiiiii :ii s ii ii -ii ti iii t ii :iii -i i`i:ii ii
-iiii iiii ii ~iiiiiii iti t
v 6 it i`i iiiiii i ~iii i` iii :z.:c.ssi ~ii :ii .ii`iiii
ic:c ii -ii-i -i -iiii iiiii ii ti t ~ii ii .ii`iiii ic:ci i`i ii
ii i`iii ii ti t iii ii -i-i i -i:i-i .ii`iiii ic:ci i`i ii -iiii ii
ti t
v 7 it i`i ;:i ii iii -ii-i ii -iiiii ii iii s:cc;-iii
i`iii iii t -ii ii -i-i :ii ii-ii iii :iii i`iiii-ii ~iii ti t ,~ii:
~ii s:cc;i iii -i s:c;-i s: ii iiiii ~iiii ii iiiii t

v 8 iii i`i-ii`ii`ii -ii-i ii .iiii t

(i, it ii iii ii iii i`i iii ~i-ii i-i i`ii-i iii ii`i
i ~ii :ii ~ii iiiii i-iis ~iii` i`iii-iii :iii i-iii`-i i`i:iii i`i
ii i`i-iii`ii t i i`ii iii i`iii ii ii i`iiiii , i`iiii -iii i
ii ii ii ~ii`iiii t ~ii .ii`iiii ii : iiiii s ~ii z
iiiii i .ii`iiii ic :c i ii :iiii-iii ii iii i -iiii ~ii`iii -i
iiii iii ii ii; ~ii`iii iti t
(J):iiii i :iii i`iiii-ii ~iii .ii`iiii ii i i`i .i:iii`i
i`iii iii i`i .ii`iiii ii :iiiii s ~ii z iiiii i .ii`iiii ic:cii
32
:iiii-ii :iii i-iii`-i i`i:iii i`iii i`i-iii`ii t ,:i-i ~ii iiiii i-iis ~iii`
i i`iii-iii -iiiii ii :i :iii :i iti it t iii i tii iii :ii .iii i
i ~ii ~iii iii i -iii i i i ~ii -iii i i i -i i`i:ii .iii ii i`ii i
iiii i ii
(M)iii ii .ii`iiii ii :i ;:i iiti ii ii iii i`iiii iii
(P) ~ii iii i`iii -ii-i ii :ii iiii ii i -i ii t
iiii ii ti,iii ii .ii`iiii iii i`i i`ii; iii
i`iii ii i:i :iii.......................
-ii i-i ii`-i ii ii i iiii
-iii-i-iii
i:iiii :ii;ii
i`ii -iii
-i iii -ii`i t i`i ~iii iii ii -ii : iiiii s i;-i ii -ii sii z iiiii
-i :iti ii :i t ~ii -ii si :iti ii :i ti i ii iii iii t i:iii
i:s.:.scii i-ii ii-i iiti iiiii -iiiii ii
tc; ii-iii i`:it i`iii
.iiii ~ii ii-iiii` :it i`iii
i:s.:.sciii iici i iii iii
tc;ii -iii i`:it i`iii
i`i: -iii iii
~ii ii -iii i`:it i`iii -iic:iii -iic ~iiiii i`ic-iiiii
tc;ii-iii i`:it i`iii
33
x g0 VV {EVn,
(+0+0A0x01/1989)
(+0A0x02-50)
x ic xVx qc 1i 5 c +0 8 BE0 1 Vi nx
~ii ii -iii i`:it i`iii i ii i` iiii i`:it :iii`ii -iii-i :i:i ii it
~iiiii -iiii tiii ~iii i`iii -iiiiiiii
iii-i
:.~ii it~it-i i i -i t--i
z. tiii -it--i -iiii i tiii -it--i -iiii :iiiii s:iii`iiii
s,-iit--i i-ii i -ii-i ii :i ~iiiii -iiii tiii ~i
ii
+.-it--i ~ii i`-iii i iii`t t:ii ici i`iii -iiiii
s.tiii -ii i i
s.ic-iiciii
z.icicicii i`-i ii` -ii -iiiii
s.~ii -iiii ~iiiii -ii`i: -iiiii
.~ii i-ii-iii i` :it :i -ii` -ii`i:i -iiiii ..........................-iiit-i
i-i -ii-ii z:iisc;c
iiii itii z:.z.sc
iiiit z.s.sc
n <iBE cBE <ix< n
n{E 1. ;iii t
n{E 2 ii-i i-ii -ii tiii :i ;ii t i`i:i iiii ii iii i`iii iiii t it
ii-iii` -i iti t iii itiit i`t iii iit ii ii-ii ii -ii:i t
n{E 3. ;ii t ii -ii-ii -ii tiii -iti -iii i iii`iii iiiiii iii
ii -i; i iii iii :i iii tiii i`iii:i -iiit-i -iii i i i i -iiit-i ii
i`iii t
n{E 4 it i`i i`i:i i -iiiiii -iiit -i s iiiii i ~iii iii t
:i:i iiit ii;-ii ;ii t ii`iii -ii-ii -ii tiii i`iiii -iii i i ii` iii
t i:ii i`i iii -iii :i iii ti ii
n{E 5 it i`i ;ii t -iiii`tii ti iii-iii
34
n{E 6 ii; i`iiii -iiii` :i-ii iii tiii -i ; ii tii` :ii iti t
n{E 7 it i`i -iii`iii iii -i; i i i i ii`i:ii iti i-i iii`t i`iii t
-iii`iii iii tiii i-i~ii i-i siii -iii t ii -ii :i ii i-i ~ii i`iii iii t
n{E 8 it i`i -i; i`i:ii i:ii tii -iiiii ii i`i:ii :ii -i -iii ii -i :iti
iti t
= V i V n
n{E 9 it i`i i`i:i iiii ii -i; i iii i`iii t it itiit i`t iii
iit ii ii-ii ii -ii :i -ii :i-ii iiiii -ii :i t i`i:iii itiit -iii i
ii -iit~iiii i`t:iii iii iii-i ~iiiii ~i-ii iii i -i ii -ii ti-i -ii iiii
i iti-ii-i :i :ii:szs-i ii-ii iiii ~ii ii-ii ii i-ii-i -i:ii-iiiii i i`i
ii-i ~ii-i i i`ii i`i:i-i i-ii-i -i :ii-iiiii ii ti ;iii t
n{E10 it i`i ii ii-ii -i:ii`i -iii itiit iii i -i:ii`i
-iii ii i`iiiii i -i--ii i i i ;iiiii i i`i -ic sc c :iiiiii ii
~ii`iii ~i-ii iiiii iiti :i -ii i`iii ii iii iii-i :iiiii
-iii`iii -ii :i -iii ii iii i`-iiii ti ~ii i-iiii iiii :iiiii -iii`iii
iiiiii ~iii i ii ;:i ~ii`iii ii iii-i iii ~ii ~i-ii i-iiii ti-ii -i i-i
~ii`iii -iii ii ;ii-ii ii
-icsczc~iiii s-iic :iiiiii ~iii iii -ii i`iii ii i-i ii ;iiii :iiiii
~iii ii`i iii-i i ii iii ii ~ii i-iiii ii i:i ~iii -i iii-i iiii`iii
i -iiiiiiii ii iiii ii ~ii`iii -iii i -iiii`iiii :iiii-ii i iti i-i
-iii`ii ~iiiii iii -ii-ii i`iiii -i:iii`-i -i:ii`i iiii ~iii i`iii
n{E 11 it i`i :ii:sss-i -ici ii:i -iti ii-i:iii ~iiiii i i`iii-i
:i sii ~ii-i ::i -ii ;i ii ;i iii:ii i -ic ~i:ii -iiiii i iii i
-i:ii`i iii -iii :iii ;iii:i iiii :ii ii :iiti iti -iiiii -i i;iti
i`-iii`iii i ii i`iii
n{E12 it i`i -ii-ii -iii i i`:iii` :ii -i -i ; i i iiii iii ii
ii`ii i`iii ii i`i:i-i -i:ii`i iti :ii-i i :ii t ii -i i`iiiii ii ~ii :i -i
ii; iii iti i`iii ii i:ii i`:i-i i iii ~iiiii -ii :i-ii iiii -i -iiii
ii ~ii -i; -ii-ii tiii ii it itii i`i ii ;-iii -iiii`iii ii-iii`-i ii
-ii` t i`iiii iii ~ii iii`iii t ~ii -ii-ii tiii i i`i iiiii i i;-iiii
:i i.i iii t
n{E13 it i`i ~iiiii`:ii ii :iiti iti -iiiii i iiiii z+ i` :i-i
:ii ss;ciii -i; iiii iiii ii iii`i i i`ii ~ii -i :iii -iii ~iiii
~i-iii :i ii itii ti ~ii i` :ii ii :iiti i -i :ii -i ii i`-iii -iiiiii
35
ii`ii i`-iii i i`-ii`ii`iii -i; i` i:iii iiii -iiii`iii -i i-ii -iii -i ; i
ti -i ii :iii -i:ii i -i:i i i`ii ~ii -ii-ii i ~i-iii -iiiiii
iii`i i i`ii
n{E14 it i`i -ii-ii -iii i`itiii :ii:iii ii ii ~ii :ii
i-ii-i-itiii ~iiiii i -iiii ~iti i`ti ~iiiii -iiiii -i; -iii ii
i`t-iiii i -iii -i i i-ii-i ~iti i`ti ii ;-i -ii-ii -iii ii ii ~ii t
n{E15 it i`i i-ii i`ii -i:ii`i-i ii -i i :s:ii:ssii -i ii`-ii ~iiii-i
-ii t ~ii ii -i ii`-ii -iii i ii itiiiii i -i~iiiii -ii ii -ii:i iiii
it ii i`iii -ii:i iiii ii ii-ii ii` ii itiit iii :iiii -iiti ii ~ii
ii-i -iiiiii -ii:i -iii :iii ii-i t ~ii ;:ii i` :iii`:ii -i iiiii
iiii`-iiii ii iii i i`ii
n{E16 it i`i iii -i:ii-iiii iii ii-i -i:ii`i iiii -i :ii:szs;c :i
~iii ii -i :ii:ii iii ~iiii t ;:i iit :i ~ii i`i:ii i-iii -i -i ; ii ii; ~ii
i`t it :iii` ii ii i i`i -i:ii`i iiii ii ii-ii i -iti ii ; -ii -iii-i
-ii:i -iii -i ii i`i:i:i -iii t-i -iiii ii ii~ii ;ii t ii :i tiii -i
ii iii -i:ii-iii iii ~ii +cc:iii ~ii it:ii iii ~ii :z :iii :i i;-i
i ~iiiiti -i; ii-iii ~iti i` ti iii -ii:i ii -i~ii-i iii ~iiii t ;:i iit
:i ~iti i`t i iii -i ; ii ii; ti iiii iti ti
n{E 17 it i`i-i; ii iii ii ii; ti ;-iii -iiii`iii -i i iii ii
~ii i t ;:i iit :i iii ;:iiii`ii t:ii -ii +ziii i i:ii ii:i iiiii` ii
-iiii; ~iiii t
n{E18 it i`i iii -i; i`i:ii tiii -i ~i i`-iii iti t
n{E19 it i`i -i; i ~i-ii ~iii iii -i i ii; iiii ;:itiii iiii
;-iii -iiii`iii iii`t i`iii t ~ii i :iii ii; ;:itiii i`i:iii iiii
-iiii`iii iii -ii ii ii t :ii :i i -i iii tiiiiii` ii ~iiii t
n{E20 it i`i -i; i ii; ii:i t:i ~iic:iiii s iiciiiii iti
i`ii t ~ii i i`i:ii ~ii iii :i ~i-ii ii -iiiii`ii ~iti i`ti i-iiii iii
iii`t i`iii t tiii i`i ~i-ii ~iiiiii -i -i; i i-ii-i i`t iiii i tii i
it-ii i i`i ;:iiii i`iii t ~ii i:ii -iiii t :ii :ii -i iii tiiiii` i:i
iiii`ii iii t
n{E 21 it i`i -i; i -iiit-i s iiiii i i`iii-i ii; iii`:i t:i
36
-ii sc iiii iiiii iii iti i`iii t ;:i i`iii -iii iii tiii iii`i:i iiiii`ii
-iiii; ~iiii t
n{E22 it i`i -iii t -iii i ii ;-i iti t i`i iiii -iiii`iii iiii
-i:ii`i iiii i ~i ii; -iii t iic :s.:z.:+ ;c ii :i-i i-iii t;
:i iii ii :i-i ii ; -iii i ii ii`ii ~ii ii ; -iii -ii:i i ~i i`i:ii
:i:i i ii i i iiiiii :i ii iic-iii i i`ii tii :i:i -i:ii`i ii :iiti i
it -iii iii-iiii -ii:ii t ~ii -ii -iii iiiii -iii`-iiii t ~ii ~ii -i ;
ii ii ; :ii :ii -i:ii`i -iii -i -iii -iii ii ii ii ii ii :i -ii :i
i ~i ii`ii tiii iitii t ii it i-i ii -iii`ii t iiii :ii tiii -i
~iiii iiiii
i:ii -iiiii i :i iii` :i t ittii :i:i -i;ii i`i:ii i -i:ii`i-i ii -i:ii`i
-iii -i ii ; ti iti -i i ti :iiii
n{E23 it i`i ~iii iii -i -i ; i it iti iii` t i`iii t i`i -i iit-i
siiiii i i`i:i it :i -i; :i -iiii`t-ii i`iii t ~ii i ii ~itii-i ii ii;
tiiii i`ii t ~iii iii i`iiiti -ii ti`-ii i ii t
n{E24 it i`i -i; i it ii iii`t iti i`iii t i`i -i iit-i s i i`ii
i-iiii`ii i ~ii i`i:i t i`:iii :i -i; ii iii t -ii-ii ~iii iii i i`itii :i i
ii -iti i -ii:i :i i-iiii`ii -i ti ti :iiii ii
n{E 25, it i`i iti ii -iiit -i -iiii ii ;-i t -i iit ic i iiii;
t:i -ii :+s iiii -iiiii iiii -iiii`iii iiii -i:ii`i iiii i -iiiiii
i`iii t iiii; -iii :ii:i iii i i`iii-i ;:ii-i i -iiit-i -iii i i tii
ii -ii-iii ii ~ii -i; i ii iii`:i -i:i i`-iiiii ~i:iii:i ii -i i ii
ii :i i;;-i i ;-ii -i iit-i z i s -i :i--i ii i` :it :iii`ii i`:ii -ii`i:
-iiiii ii iii t
n{E 26 it i`i iiii; -ii :+siic-iic:i -iiit-i -iii i ii ;i`i-iii
iti t ii`ii iiiii iiii; -ii -iii i tii t ii; iii ti-i ;i-iii;
iii`ii iii; ~iiii iti t ~iiii iiiii -iiii iti t i`i it tii-iii i
ii-i ii it ii-iii ~iiii -iiiii -iiii -i ii ; -iii`iii i
n{E 27 it i`i ~iiiii -i i -ii` -ii:i-ii i-ii` i-i:iii ~ii i-iis ii
ii-i ii`-i -i -ii -ii :i iii-i i -iii t ~ii :i -ii -i i-iis ii iit
ii -iiiii i`iii-iii t iii tiii i`i:iii -i:ii`i iiii i;iti :iii ii-iii`-i
37
-i; i :ii ii i`-iii-i:i i -i-ii` :ii -iii :iii`iii ii i`ii i ;iit ii
iiiii t ~ii ~ii;i ;iiii -i ~ii:iiii ii t-ii ~ii ii tii` :ii ii ii
ii :i i iii ii i :i iii-i i i`t :iii ii t, , ii iiii-i i
iii-i ii ii ii :i ii i`iii iii t
n{E 28 it i`i -ii-ii tiii -iti -iii t-i -iiii ii tii i -iiii i
iii ii ii ii :i iii iii :i i`iii i`i:ii ;:itiii ii iit :i ii i`iii
iii t ;:ii`i -i iit -iii i t :ii -i iii ii:i t:i -ii ss ~iiiii iiiii
~iiiii iii -ii-ii -i; :i i`ii -iii i -i:iti i -iiii t
n{E 29 it i`i -i; i i` itiii -ii-iii i-i ti` :iii i i-iiii :i:i t ~ii
it -iti ;:ii ii :i -i; iiiii iii t iii`i ~iiiiii -ii-ii -i iit-i i:ii i
i :ii ;:ii`i ;:ii-ii i iiiii it ii t i`i -i; :i -iiii i-iiii iiii
iii -ii-ii iii ii iii
n{E 30 it i`i iiitii iiii iii -i ; -ii iii iii`ii iii t
iicz:.z.sc
.iiiiii.............
i:iii ;iii it ~it-i
-i -iiit it ~it-i -ii` i t i`i -iii : tiii -it--i -iiii
iiiii zi iiiii zci zsiiiii z -ii t--i i-ii
i;-i i -ii si z:i zzi sciiiii -i -it--i ~ii i`-iii
:iti i :i t i:iii i-iii-i ii ti tiii -ii
~itiii iiiii ii i; iicz:.z.sc -i iit-i -iii i
tc; ( -i , tc;~i-iii i
tc;-ii
tc;( -i ,
tc;( -i ,
tc;( -i,
tc; ~i-iii i,
iii
z:.z.sc
38
x gx VV cn,{EVn*
{M +0+0A0x03 +{E 1989(+0A0x026-59)
x ic c +08BEn 1V0n0
i`i-ii ti ~iiii ii`i -iti iiii i:i iit .....................................-i iii
iii-i
iii i`.iiii i-i iit....................................................................-iiit-i
x ic xVx qc 6 Mi 8
v 1 ;iii t iii t
v 2 ;iii t iii t
v 3 ;iii t i`itiii-i it-i ~ii iii t iiiiiii :i ii ;iii t
v 4 i`iiii iii i -iii t
v 5 i`iiii -iii ~ii iii t
v 6 i`i:i ii -i iti t i:iii-i iti t
v 7 -iii i iii t i ;iii t
v 8 -iii i iii t i ;iii t
v 9 i`iiii iii i -iii t
v10 -i iii ii ii ; i`iiii -iii:i-ii -ii iti t
v11 -iii`iii i-i iii; i; t ~ii ii -ii:i i-i ~ii ii iii t
v12 ;iii t
v13 ;iii t
v14 -i iii i:ii -iiiii i -i :iti iti t
=Vi Vn
v15 it i`i i`i:i iiii ii -i iii i iii i`iii t it
:itiiit i`t iii iiiit ii ii-ii ii -iiii -ii :i-i iiii
-i:ii`i t i`i:iii :itiiit -iii i ~i-ii iii i -iii -iiti-i
-ii iiii i tiii-i :i :szs ;c-i ii-ii iiii ~ii -i :ii-iii i i`i
ii-i ~ii-i i i` ii i`i:i-i i-ii-i -i:ii-iiiii ii ti ;iii t
v16 it i`i ii ii-ii -i:ii`i -iii :itiiit iii t-iiii
~ii t i -i:ii`i -iii ii i`t-iiii -i--ii i i i ~iiiiii i i`i
39
-icsc -iii :iiiii ii ~ii`iii ~i-ii iiii iiti :i -ii i`iii ii
iii iii-i:iiii -iii`iii -i:ii`i -iii ii iii i`-iiii ti ii -iii
iiii :iiiii -iii`iii ii~iiiii ~iii i i ;:i ~iiii ii iii-i ii ~ii
~i-ii i-iii t i-ii -i i-i ~ii`ii -iii ii ;ii-ii ii -icscz -ii s
~iiii s -ii; :iiiii i i`ii ii i-i ii iiiii-i :iiiii ~iii i`ii`i
iii-i i ii iii ii ~ii :i i-iii -i iii:i ~iii -i iii-i
iiii`iii i -iiii`iiii ii iii ii ~ii`iii -iii i -i ~iii`ii`iiii
:iiii-ii i ii-i i iti i-i -ii:ii ~iiiiiiii -ii-ii i`iiii-i:iii`i
-i:ii`i iiii ~iii i`iii
v17 it i`i :ii:sss;c-i :i--ii ii i:i -iti ii-i :iii ~iiiii i i`iii-i
i` :isii ~ii-i : -ii ;iii ;i iii` :ii i -i:i--ii -it--i ~i:ii -iiiii
i iii i -i:ii`i iiii -iii i iii ;iii:i iiii :ii ii :iiti iti
-iiiii i -i i ;iti i`-iii`iii i ii i`iii
v18 it i`i -ii-ii -iii i i`:iii`:ii -i -i; i i iiiiiii -i ii ii`ii
i`iii i`i:i-i -i:ii`i itii :ii-i i :iit ii -i i`iiiii ii ;:i -i ii ;
iii iti i`iii ii i:ii i`:i-i i iii ~iiiii -ii :i-ii iiii ii
-iiii ii ~ii -i iii -ii-ii tiii ii it itii i`i ii ;-iii -iiii`iii
ii-i -ii`-i ii -ii` t i` iiii iii ~ii iii`iii t ~ii -ii-ii tiii
i i`i iiii i i ;-iiii :i i.i iii t
v19 it i`i ~iiii :ii ii iti -iiiii :i iiiii z+i`:i-i
:ii ss;c iii -i; iiii iiii ii iii`i i i`ii ~ii -i:iii -iii ~iiii
~i-iii :i ii itii ti ~ii :ii ii i -i :ii -i ii i`-iii -iiii`ii iiii
i`-iii i`-iii`iii -i ; i`i:ii iiii -iiii`iii -ii-i -iii -i ; i ti -i ii
40
:iii -ii:ii i -i:i i i`ii ~ii -ii-ii i ~i-iii iii iii iii`i i i`ii
v20 it i`i -ii-ii -iii i`itiii :ii:iii ii ii ~ii ;:i-i i-ii-i
-itiii ~iiiii i -i~iii`ii ~iti i`ti ~iiiii i -iiiii -i ; -ii-ii ii i`t-iiii
i -iii -i i i-ii-i ~iti i`ti ii ;-i -ii-ii -iii ii ii ~ii t
v21 it i`i i-ii i`ii -i:ii`i-i ii -i i :s:iiss ;c ii-i i-iii ~i
iii-i -ii t ~ii ii-i i-iii -iii i ii itiiiii i -i~iiiii -iiii
-i:ii`i iiii it ii i`iii i`i -i:ii`i iiii ii ii-ii ii`ii :itiiit iii
:iii ii -iiti ii ~ii ii -i -iiiii -i:ii`i -iii :i ii ii -i t ~ii ;:ii i
i`:iii` :ii -i iiiii iii`i`-iiii ii iii i i`ii ii ii; ~ii -ii;ii ti iii
t
v22 it i`i iiii -i :ii-iiiii iii ii -i -i:ii`i iiii -i :ii:szs;c:i ~iii
ii -i :ii:ii iii ~iiii t ;:i iit :i ~ii i`i:ii i-iii -i -iiii ii
ii; ~ii i`t it :iii` ii ii i i`i -ii :i iiii ii ii-ii i -iti ii;
-ii` -i ii-i -i:ii`i -iii -i ii i`i:i:i -iiit-i -iiii ii iiii ;ii
t :ii ;:i :ii -i ii iii -i :ii-iiiii iii ~ii +cc:iii ~ii it :i i
iii ~ii :z:iii :i i ;-i i ~iiiiti -iiii i-iii ~iti i`ti iii
-ii:i ii-i ~ii-i iii ~iiii t ;:i iit :i ~iti i`ti i iii -i iii ii
ii; ti iiii iti ti
v23 it i`i -iiii ii iii ii ii; ti ;-iii -iiii`iii -i i iii ii ~ii i
t ;:i iit :i iii iiiii`ii i`-iii i; ~iiii t
v24 it i`i iii -i iii i`i:ii tiii -i ~i i`-iii iti t
v25 it i`i -i iii :i -iiit-i :ii s i i`iii-i ii; iii`:i -ii sciicic
iii iti i`iii ;:i i`iii -iii iii tiii iiii:i i iiiii`ii -iii`ii;
41
~iiii t
v26 it i`i -iii t-i -iiii ii ;-i iti t i`i iiii -iiii` iii
iiii iiii -i:ii`i i ~i ii ; -iii t :si` :i-i :ii+ ;cii :i-i
i-iii t; :i iii ii :i-i ii; -iii iti ii ii`ii ~ii ii; -iii
-ii :i i ~i i`i:ii :ii i iii ii`iiii:i ii iiii -iii i
i` ii t ii :i:i -i:ii`i ii :iiti it-ii ~ii ii -iiii -ii:ii t ~ii
-ii -iii iiiii -ii-iiii t ~ii ~ii -i iii ii ii; :ii :ii
-ii :i -iii -i -ii`i -iii ii ii ii ii ii :i -i:ii`i -iii
i ~i ii`ii tiii iitii t ii it i-i ii -iii`ii t i iii :ii
tiii -i ~iiii iiiii i:ii -iiiii i :i ii:ii t ittii ;:i:i
-i iii ii i`i:ii i-i i:i-i ii -ii :i -iii -i ii; ti iti -ii ti
:iii
v-27. it i`i iti ii -i iit-i -iiii ii ;-i t, -iiit ic s i iiiiiti
t:i -ii :+s iic -iic iiii -iiii` iii iiii iiii -ii:i i
-iiii`ii i`iii t iiiiiti -iii :ii:i iii , i`iii-i ; :ii-i ~ii
-iiit-i -iii i i tii ii -ii-iii ii ~ii -i iii i i i ii :i -i:i
i`-iiii iii ~i:iii:i ii -i i ii ii :i i;-i i ;-ii icic
iii :iii` ii i`-i ii`-ii -iiiii i ~ii ii i`:it :iii` ii i`:ii
-ii`i: -iiiii ii i; t
v-28. it i`i ~iiiii -i i -ii` -ii :i-ii i-ii` ii-i :iii ~ii i-i is ii
ii ii-i ii` -i -i -i i ii :i iii-i i -iii t ~ii :i -ii` -i i-i
is ii iit ii -ii`iii i`iii-iii t iii tiii i`i:ii -i:ii`i iiii
i ;iti ;:itiii ii-i ii`-i -i iii i :ii i i i`-iii -i:i i
42
-i -ii` :ii -ii:i :iii`iii ii i`ii i ;:iii ii iiiii t ~ii ;iiii
-i ~ii:ii`ii ii t-ii ~ii ii tii` :ii ii ii ii :i ii iii
ii i :i iii-i i i`t :iii ii i`:iii : ii ii ii-i iiii i iii-i
ii ii ii :i ii i`iii iii t
v-29. it i`i ~iii iii -i i`itiii -iit-i iii :i iiii -iiii`iii iii`t ii
i; t ~ii iiii iii -i i`iii iii t ~ii i`iiii iii iiii iii
-i i`iii; i; t, it i`iii iii ~ii -iii t -ii :i i -ii i
i`ii i i ii`i:iii t i`i:i-i -iiii i ii-i ii -iii t ~ii i iti
ii iiii t i :iiii ii-i t, i ii-i:i iii t,i ti-iiii ~ii iii
iiiii i :i-iii`i -iii iit t iiii iii -i i`i:i i iii i t;
t, it i` iii iii i -iii t ~ii -ii-iiii t ~ii iiiiii :i iii`t
ii i; t ~iiiii ;:ii it iti -iii iiii i`i c iic:iicicii i i
i:ii ii ii ~iiiii i ii t ~ii :iii i-ii; ii i; ~ii -iii-i ii
i ii t
v-30. it i`i -i iii i it iii`t iti i`iii t i`i it i`i:i it iiii -iiii`
iii i ii :i ~ii i`i:i it -iii`ii t ii ii -i iii ;:i iii ii
iiiti i i :i iii ii -i i--ii iiiiti iti ti :iiii
v-31 it i`i -i:i--ii ii-iii i`:it i`iii i -i-it:i i-i is i:i i i ii
iiii -ii :i i -iiii`ii i`ii t ii i iiiiiti t ~i:iii:i -iii ii
-ii-ii tiii -i -iii ti ii iii` t ~iiiii ;:ii -iti ii-i :iii ii ii
-iii tiii ii t
v-32. it i`i iiii -ii :i -i:ii-ii ii :i -i:ii`i t ~ii iii-i :iii` iii ~ii
-iiii :iii -i:ii`i -iiii iii ~ii; t :ii tiii -i iii -i iii
43
iiii ~ii ii -i iii` :ii t ~ii ~iii`iii -i ii -iiii` :ii ~ii iii i-i t
v-33. it i`i -i:ii`i -iiii`iii t:i -ii :+s iic -iic ii t :ii tiii -i
iii tiii i`i:i ii -i ii t~ii t, iiiii iii` ii i` -iiii; ~iiii
iti t
v- 34. it i`i iii i;iti i`-iii`iii it :ii iii`ii ~ii ii iii` ii -iii`ii;
~iiii t ~ii iii -i iii -ii t
v-35. it i`i -iii t-i -iiii ii ii; ;-i iiiiiti t:i ~iic : iiii s iic
ic iti t -iiit-i -iii i i -ii:i i-i i-ii tiiiii i i`i :i-iiii t
~ii i it -ii-ii tiii ii i ~iti t -iiii ii -iiii t i`i
-iiit-i -iiii ii i-iii i i i -iii i ,iii tiii -i i-ii-i
-i:ii-iiiii i` t :iii ii i`ii:-ii t i iii ;:i -ii-i -i :i iiii ii
-iiit iiiii iii`t ii :iti i-ii;ii i :ii
v- 36. it i`i iii tiii iii iii :i iii i -iiii ii ii ii :i ii
i`iii iii t,ii -ii iii :-iii iiiii t:i -ii ss~i iic iiiii iii`ii
~iiii t
-i -iiit-i s i s -ii`i t i`i -ii-ii iiii .iiii,
iitii tiii i -iii : ii ss i ;-i iiii -i tiii -ii -i iit ics
:iti i :i t, i:ii i i-iii-i -i:iiii tiii -it--i -iiii
-iiit
i-iii-i ~iiiii i`iii ~ii -i iit icz i ii icz
-iii ii i:iii iiti -iiiii -i i`iii ~it-i t:ii -i i -iiii
iic zsssc ;c -i iit ic
i`iiizsssc
44
gx VV c cn {EVn BE
x VV g M{ c n BE +
iic -iii s i`:i-i :ii :sz ;c
-ii-ii i-ii i-i
~ii ii-iii i`:it i`iii ................................................................. iii
iii-i
~ii it ~it-i ~iii` ........................................................ .ii`iiiiii
n{j i Y{BE il ii x viBE +n ci
v-1. :i ~ii ii ii ii-i-i -i i`iii t it :ii ii t ~ii ii; .iii ii
~iiiiiii iti t
v-9. ii iiti iii i ~i-ii ii-i-i -i i-i ii`-i :iii ii i t, :i-i ii-i-i
.i:ii ii i -ii :i ~ii i-iis ii ii -iii ii .iiiii ii ~ii :iii -i
iiiii-i iii -ii` ti -iiii iii t ii:ii -i t ~ii -iiiii i iiiiii i ii
:iii (i-i i-i, -ii` i ti -i -i -iii iiiii ~ii i-iis ii i -iii -ii i
iii iiii`i .iiiii iii i`.iiii i-i ii-ii -iiiii ii i`:i-i i i`iii ii
it ~iii i`ii ;iii` -iiii iiii t, -iii -i:ii-iii ii i :i i -iii,
:ii :s+ ;c :i -ii :i i -i -i it iii ii
~iiii iiii -ii:i ti i :i ;ii t iii ii ii -i
~i:ii t i-ii-i -i:ii-iiii ii ;iii ii ii ~ii`iii iti t
v-10. :iiii iti t ~i.ii:ii` ii t
v-11 :iiii iti t, ~i.ii:ii` ii t
v-11 :i :+ ii :ii ~ii`iii i i :i-ii -i t ~ii ~i.ii:ii`ii t
i`i:iii ii; .iiii ;:i ~ii` iii i -i iti -i :iiii ~ii i :i-i:i i`t ~ii -i
:i ii iii ~ii :iiii t
v-13. ~i:iiii t
v-15. i ic:s :ii :ss i`iii , ,: t ~ii :ii :i-ii ii`
ii; iiii; ii i; ii it :ii t, iii i`i:ii iii`:i i iii -i iti t ~ii
i i`i:ii iiiiiti i`i:iii iii iii:s -i i`iii iii t, ;:i ~ii`iii i -i ii ; .iiii
t iii ii ~ii-iii t i`i it ~ii`iiii -i :i-ii -i:-i ii-ii iiiii
(:iii`iii, :i iii`ii i`iii ii
v-16. ~i:ii ii t
v-17. i`i:i .iii i`iii t, ~i:iiii t .iiii i`i:i -ii-i ii iitii t,
45
:iii iii+zi`iiii i:ii :i ii; :i-ii iti t
v-18. iiti ~iii`i i ~iiii t
v-19. iii ~i-ii i`iii :ii ii ~ii`iiii t ~ii -ii-i -iii ii ii
~ii`iiii t .ii`iiiiii i ;:i iii -i i`i:i .iii :i iii -iii i`ii
i` ii t ,:iii ii ; ~ii ti iti i`iiiii t
v-20. ~i:iiii t, .ii`iiii ii i ~ii: is iiii iiiii ii iiiiiti
i`ii iii i :iii -i i .iiiii-i-i + ~ii:i :ii :s:;c ii i` ii ii
i`i:iii i iii i :s~ii:i :ii :s:;c ii i` ii ii , ~ii :ii ii -iii
ii`i :i ii ; iii iti
v-21.iiisc iiii iiiii ii :i (i`iii, iti i :iiii t, i`i:ii i`i iii
sc ii i`i-ii i t ~ii t .ii`iiii ii ic: iiiii s ii it :i ii ii
ii ; ~ii`iii iti t
v-22. ~i:iiii t .ii`iiii ii ic : iiiii s ii ~ii .iii i`ii` i t
i`i -iii ;:i :iii -i i`iii-iii t iiiii i iii -i :ii
:s+ ;c i -iiii i-iii iti t; ~ii ii` i`i:ii iiiii i-iiii i
ii ; :ii ii :iiii i-iii -i.i ii i t ii :iii ii; .iiii iti ~ii
i`i:ii :ii ~i:ii :iiii ii iiii i ii iiiiii i i-iii -i.i :i
iii`ii i :s+ ;c :i i`iii ii i i` i ii i -i:ii:ii ~ii`iii -i ii;
iiii iti -i :iiii t, i`ii ii iii`i it ~ii`iii .ii`iiiiii i iii
-i iii .iii iii ~ii ti ii
v-23. ~i:ii ii t,ii -i-i -i ;:iii i`iii :-i -i :i ~ii`ii t iiiii
i-iiii`ii i i`t iiii iii iii`ii ii i`ii ii iii iii iii -iii -ii
ii :i ii i`ii ~ii :iiii i-iiii`ii ii iti ~iii iii ;:i iii ii
-ii t
v-24. ~i:iiii t, i-iiii .ii`iiii iiii ii t
v-25. .ii`iiiiii i c: :i ii s ii ~i:ii iiii -i ~iii iii:+s iiii
-iiiii ii iiiiiti ii,i`i:i .iii .ii`iiii ii i ii i`iii t, :ii
~i:ii t
v-26. ~i:ii ii t .ii`iiii ii ii :-i -i :i :i i`iiii -i .iiii iiii
iii` t,i`i:i:i ;:i iiiiii ii :i-iii ii ~ii`iii iti t
v-27. -ii` i-i :iii i`i:ii :iii -i .ii`iiii` ii i ;:i iii -i iii i`iii t,
46
it :iiii :ii -ii` t , i`i:iii iiti i` i-i .iii t
=k tiii i -iii i -ii` iii ii -iti-ii-i
nFh :ii -iii
{ :ii i :iti i i~ii
{SU tiii i -iii
~ii ~iiiii ii -i iiii :iii -ii` i -i ~ii i-iis ii ii -iii :iii`-ii t,
i`ii:i ii iii :iii :i ii ; :iii iti t i`iii ii ii iii ;:i iii -i ii
iii iitii t ~ii :ii ii ~i.ii:ii`ii t
v 28. iii t ,~i:iiii t, .ii`iiii ii ii; iii i tii .ii-i ii i
~ii`iiii iti t
v-29. iii i iiii t, ii -iti ii iii ~iiii :i-ii ii -i
iiiii iii ii ~ii iti :iii iti :ii :i--ii`i t, ii :ii ;i ii
ii`iii i ~iiii ~ii i; t, i`i:i:i iii ii iti ii iiiii ii ii
~ii`iii ti iii t,i:ii i`i ic-iic iiiii ii -ii ::,:s ~ii:i
:ii :s: ;c -i .iiii`ii t ii ; i`iiii :ii iti t, i`i:i:i iii :i i-iiii
ii i i`iii -i -iiii iii
v-30. ~i:iiii t, iiti i`ii ti i i ii i t
|ik
v-31. i:ii i`i .ii`iiiiii iti t i`i it iiii -ii:i t ;:i .i-iii`ii ii
-i ii` it :i-ii ii ti ii ii iiii`i :ii :s+ ;c :i iii ii; -i:ii-iii
;:i -ii` i iii iii iti -iiii ~ii i`t~ii ii ti ii :i ~ii`ii-i -i :i
:-ii .iii iiii i iii -i ~ii`iii iii ti,;:ii`i .ii`iiiiii ~iiii
~ii i`i:ii -i:ii-iii ii ii` ii; ti ti ii ti ii :i :iiii ~ii ti
iii ~ii it ti i`iiii ti iii ;:i :iii ii -ii` -iiii i` t ti i i
iii .iii i`t :i-i iii ~iiiiiiii ti t, i`i:i:i -ii` ii tiii
i`iiii -i :i -ii`-iii ti iii t ii` iii i`i:ii -i :ii-iii i i ii
~i-iii ti .iiii ii ii .iii i`iii ii :ii ti ii ~i:iiii ii
t i`t ~ii i i`iiii :i :iii -i ti iiii i iii -ii iiiii -iii
iii t i`i -i :ii-iiii i -i:-i i iiii iii -iii i ii-ii ~ii`iiii
i`i:ii i` :ii`iiii i ;iii:i -i iii`ii ii i -iii iiii;ii ii;
t , i`i:i:i iii ii ;ii t
47
~ii :iii ii; .iiii ;:i iiti -i iti -i :iiii t ,i`ii iiiii` i i`i:ii i`t
ii :iii -iii ii i ii ,:ii iiiiiti i -iii ii i; t, :i ~ii`iii i i iiiiii
i`iii ~i.ii:ii` ii t, i`i:ii .iii ii ;:i iiti -i -iiii ii i iti t ,
.iiii tc; ii-iii i`:it i`iii
ii-iii i`:it i`iii
iii
i` ii i s i`:i-i :ii :sz ;c
i;-i i`iii
tc; iiii iii ~iii iii:i
s:zsz
48
Reg. Suit No. 2 of 50
Q. In what capacity does the plaintiff seek to exercise the relief
which is seeks in the plaint?
Ans. In my individual capacity.
Q. What is your individual capacity?
Ans. My individual capacity is distinct from public capacity and in
this matter an idol worshiper . This shows that the plaintiff's
counsel is not in a position to answer the court question. The
plaintiff must present in court personally on the date fixed.
Q. Has your client any religion?
Ans. The plaintiff is a Sanatan Dharmi.
Sd/- illegible Sd/- illegible
CJ Chaudhary Kedar Nath
15.09.51 15.09.51
49
13.01.60
Parties as before
sd/-illegible
Sri Goswami States ABCDEF is the land and building in suit as
indicated in the map of the Commissioner Sri Shiva Shanker Lal
dated 25.5.50. It is the temple since 1934. Deities installed are Sri
Sri Ram. The building existed prior to 1934. The plaintiff can't say
for how long it have been existing. The plaintiff can't say who built
it and what it was prior to 1934. Sri Gopal Singh Visharad came in
on about 1934 to Ajudhya. He saw the ......... (murti) there, and
began to worship them. Sri Paramhans instructs that the .........
(murti) were there from before 1934. Whenever he saw it was a
temple. It has always been a temple. He can't say who got it
constructed and dedicated.
The plaintiff do not admit that at any time the building was
used for prayer or as a Mosque by the Mohammaden community.
Babar never built it. He was never emperor of India. I deny that it
was ever used as a mosque.
The plaintiffs confine their case to the construction shown by
letters ABCDLKJPOHNGA as shown in the map of the
Commissioner dated 25.5.50. The Chabutra and Mandir shown in
the map of the Commissioner as Ram Chabutra and Bhandar
are the same as those described in the eastern boundary of the
temple in question in the plaint.
50
The replication para 31 filed in suit no. 25 of 1950 by
Paramhans does not refer to the litigation mentioned in para 14 of
the map filed by Zahur Ahmad and others. The proceedings
mentioned in the last part of para 31 of the replication relate to
those cases and proceedings which were between Mohammedans-
sunnies & shias & others i.e. relating to suit no. 29 of 1945 of the
Court of Civil Judge, Faizabad.
sd/-illegible
13.1.60
51
In the Court of Civil Judge, FD.
Reg. Suit No. 02/50
Gopal Vs. Zahoor
Regular Suit No. 25/50
Paramhans Vs. Zahoor
07.03.62
Defendant Gopal Singh Visharat and Sri Param Hans Ram
Chandra plaintiffs of both the suits no. 2/50 and 25 of 1950
accompanied by their counsel state that they do not want any relief
with regard to constructions or structures indicated in the map of the
Commissioner Shiv Shankar Lal dated 25.05.50. by the terms 'Sita
Rasoi', 'Bhandar' and 'Ram Chabutra'. They say that the reliefs are
asked for only with regard to property included in the said map by
letters A, B, C, D, L, K, J, P, O, H, N, G, A.
They further add that the term ' Janam Bhumi used in the
plaint refers to Janam Bhumi of Sri Ram Chandra Ji and according
the plaintiff's belief the property in the suit is the site of the same.
They add that there is no foot prints carved out on any stone
or any stone image of any Charan Paduka (....................) referred
to in para 2 of the plaint.
According to them at the place in suit near the idol of
Bhagwan Ram Chandra Ji are kept wooden sandals or Charan
Paduka and also a small pair of silver Charan Paduka . They are not
fixed to any stone, structure or floor but are placed loose near the
idol.
They are that the idol of Bhagwan Ram Chandra Ji at the
place in suit is an Achal ( ) idol.
52
They add that in plaintiffs claim right of worship with regard
to the said Idol and also with regard to the 'Charan Paduka'.
The plaintiffs also claim a right to worship all the deities and
idols situated in the property in suit besides that of Bhagwan Ram
Chandra Ji as for example Laxman Ji, Hanuman Ji, Sita Ji, Saliqram
Ji, etc. They also claim a right to worship and have Darshan of these
as well as they have a right to a Darshan of the site in question, as
according to their belief it is the birth place of Sri Ram Chandra Ji.
Sd/- illegible Sd/- illegible
Param Hans Ram Chandra Das Civil Judge, Faizabad
Gopal Singh Visharat
07.03.62 07.03. 62
53
In the court of Civil Judge, FD
Reg. Suit No. 2 of 1950
Reg. Suit No. 25 of 1950
07.03.60
Sri Mohd. Ayub, Advocate for the defendants states that the
decision referred to in para 11 to 14 of the WS was in original Suit
No. 61/280 of 1885 in the Court of Sub-Judge, Faizabad, Raghubar
Das Mahanth versus Secretary State for India and Others. He adds
that this decision bars the present suit by principle of resjudicata
and estoppel.
Sd/-illegible Sd/- illegible
Sri Mohd. Ayub Civil Judge

07.03.62
54
In the court of Civil Judge, FD
Reg. Suit No. 2 of 1950
Gopal Vs. Zahoor
Reg. Suit No. 25 of 1950
Param Hans Vs. Zahoor
08.03.62
Sri P.D. Goswami, Advocate for defendants states that the
reports of the Commissioner spoken in Para 15 of WS has not effect
on the rights of plaintiff, nor do the provisions of Section 5 (3) of
U.P. Act, 13 of 1936 apply to the present suit as they are based on a
right of worship of plaintiff who is a Hindu. According to him the
provisions of the Act are applicable to the property and the right of
the Muslims only.
He does not give up the plea taken by him in the replication
in that connection.
According to him the said Act has been repelled by U.P. Act
16 of 1960. He further adds that in case the said Act be considered
applicable in the present suits it is ultra vires the provisions of the
Government of India Act 1935 and is in conflict with the Ancient
Monuments Preservation Act. (Act No. VII of 1904.
Sd/-illegible Sd/- illegible
P. D. Goswami Civil Judge, FD
09.03.62
55
In the court of Civil Judge, FD
Reg. Suit No. 2 of 1950
Gopal Vs. Zahoor
Reg. Suit No. 25 of 1950
Param Hans Vs. Zahoor
09.03.62
Sri Mohd. Ayub Advocate for the defendants states that
under para 15 of the WS in Suit No. 2 of 1950, the defendants
plead that the suit is barred by provision of Section 5 (3) of Muslim
Waqf Act, 1936 (U.P. Act No. 13 of 1936).
He adds that by the plea set up in para 19 of the WS, it is
meant that the suit is bad for want of consent in writing of the
Advocate in general and other provisions of Section 91 of the
C.P.C.
He adds that from para 9 of WS the plea arises that Almighty
God in whom the property in suit vests duly represented by some
authorised persons should have been made a party to the suit and
the suit is bad for non-rejoinder of parties. He adds that the Muslim
in general or the Mutwali
of the said Waqf or Sunni Central Board or Waqf should also have
been made defendants in the suit.
He adds that the present suit being a suit for injunction is
barred by time under Article 120 of the Indian Limitation Act.
Sd/- illegible Sd/- illegible
Sri Mohd. Ayub Civil Judge, FD
09.03.62
56
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH: LUCKNOW
OTHER ORIGINAL SUIT NO.1 OF 1989
(Reg. Suit No.2/1950)
Gopal Singh Visharad Vs. Zahoor Ahmad and others
AND
Regular Suit No.25 of 50
Param Hans Ram Chandar Versus Zahoor Ahmad and others,
Issues framed by the Civil Judge Faizabad on 9.3.1962 in the
suits noted above:-
Issue No.1:-
Is the property in suit the site of Janam Bhumi of Shri Ram
Chandra Ji?
Issue No.2:-
Are there any idols of Bhagwan Ram Chandra Ji and are His
charan Paduka sitauted in the site in suit.?
Issue No.3:-
Has the plaintiff any right to worship the Charan Paduka
and the idols situated in the place in suit.?
Issue No.4:-
Has the plaintiff the right to have Darshan of the place in
suit.?
Issue No.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 Vs. Secretary of State for India & others.?
(b) Was it decided against the plaintiff.?
(c) Was that suit within the knowledge of Hindus in general and
were all Hindus interest in the same.?
(d) Does the decision in same bar the present suit by principles
of Resjudicata and in any other way.
Issue No.6:-
Is the property in suit a mosque constructed by Shansha
Babar commonly known as Babri mosque, in 1528A.D.?
57
Issue No.7:-
Have the Muslims been in possession of the property in suit
from 1528A.D.
Issue No.8-
Is the suit barrad by proviso to section 42 Specific Relief
Act.?
Issue No.9:-
Is the suit barred by provision of section (5) (3) of the
Muslim Waqfs Act (U.P. Act 13 of 1936);?
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.?
b. Were the proceedings under the said act referred to in written
statement para 15 collusive? If so, its effect?
c. Are the said provisions of the U.P. Act 13 of 1936 ulta-vires
for reasons given in the statement of plaintiffs counsel dated
9.3.62 recorded on paper No.454-A-?
Issue No.10:-
Is the present suit barred by time ?
Issue No.11:-
a. Are the provisions of section 91 C.P.C. applicable to present
suit ? If so is the suit bad for want of consent in writing by
the advocate general ?
b. Are the rights set up by the plaintiff in this suit independent
of the provisions of section 91 C.P.C. ? if not its effect. ?
Issue No.12:-
Is the suit bad for want of steps and notices under order 1
Rule 8 C.P.C. ? If so its effect. ?
Issue No.13:-
Is the suit No.2 of 50 Shri Gopal Singh Visharad Vs. Zahoor
Ahmad bad for want of notice under section 80 C.P.C. ?
Issue No.14:-
Is the suit no.25 of 50 Param Hans Ram Chandra Vs. Zahoor
Ahmad bad for want of valid notice under section 80 C.P.C. ?
58
Issue No.15:-
Is the suit bad for non-joinder of defendants. ?
Issue No.16:-
Are the defendants or any of them entitled to special costs
under section 35-A C.P.C.?
Issue No.17:-
To what reliefs, if any, is the plaintiff entitled. ?
59
In the High Court of Judicature at Allahabad
CRIMINAL SIDE REVISIONAL JURISDICTION
Allahabad, dated the 3
rd
February 1949-50
PRESENT
The Hon'ble R. Dayal............. Judge
and
The Hon'ble Judge
Miscellaneous No.208 of 1950
REX.
VERSUS
Anisur Rahman
Division
Faizabad
By the Court--
Issue notice. Stay meanwhile. A copy of the order may be
handed over to the learned counsel on payment of the necessary
charges.
S.d. R.D.
3.2.50
60
I hereby direct the parties described below namely:-
1) Muslims who are bonafide residents of Ayodhya or
who claim right of proprietorship or worship in the property in
dispute;
2) Hindus who are bona fide residents of Ayodhya or who
claim right of proprietorship or worship in the property in dispute.
To appeal before me on 17
th
day of January at 11.00 a.m. at
Ajodhya Police Station in person or by pleader and put in written
statement 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 decisions.
The attachment shall be carried out immediately by Station
Officer, Ajodhya Police Station who shall then put the attached
properties in the charge of Shri Priya Dat Ram, Chairman
Municipal Board Faizabad cum Ajodhya 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 the management shall be defrayed by the parties to this
dispute in such proportions as may be fixed from time to time.
This order shall, in the absence of information regarding the
actual names and addresses of the parties to dispute to be served by
publication in :-
1. The English Daily The Leader Allahabad.
2. The Urdu Weekly Akhtar Faizabad.
3. The Hindi Weekly Virakta Ajodhya.
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 29
th
day of December, 1949 at Ayodhya.
61
Sd. Illegible
Magistrate Ist Class and
Addl. City Magistrate, Faizabad cum Ayodhya.
62
No. 513/XV-37-1 Dated: 30.12.49
From:
The District Magistrate,
Faizabad
To
The Editor,
Urdu Weekly 'Akhtar',
Faizabad.
Please have the attached order Section 145 Code of
Criminal Procedure on the question of a dispute between Hindus
and Muslims in Ayodhya over rights of proprietorship and
worship in the buildings
claimed variously as Babri Masjid and Janmabhumi Mandir,
published in the next issue of your newspaper.
For District Magistrate,
30-12-49
63
No. 513/XV-37-1 Dated: 30.12.49
From:
The District Magistrate,
Faizabad
To
Shri R.P.Arora,
Local correspondent 'Leader',
Faizabad.
Please have the attached order Section 145 Code of
Criminal Procedure on the question of a dispute between Hindus
and Muslims in Ayodhya over rights of proprietorship and
worship in the buildings
claimed variously as Babri Masjid and Janmabhumi Mandir,
published in the next issue of your newspaper.
For District Magistrate,
30-12-49
64
No. 513/XV-37-1 Dated: 30.12.49
From:
The District Magistrate,
Faizabad
To
The Editor,
Hindi Weekly 'Virakta',
Ayodhya, Faizabad.
Please have the attached order Section 145 Code of
Criminal Procedure on the question of a dispute between Hindus
and Muslims in Ayodhya over rights of proprietorship and worship
in the buildings claimed variously as Babri Masjid and Janmabhumi
Mandir, published in the next issue of your newspaper.
For District Magistrate,
30-12-49
65
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Inventory
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70
Assumed charge that day the 5 of January 1950 at 1.00
p.m. above inventory has been found correct after
verification.
Sd./ Priya Dat Ram
Witnesses- Sd. Illegible Receiver
Vakil 5-1-50
5-1-50
G.N. Mishra
5-1-50
Sd. Tulsi Ram Verma
5-1-50

71
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73
Assumed charge that day the 5 of January 1950 at 1.00
p.m. above inventory has been found correct after
verification.
Sd./ Priya Dat Ram
Witnesses- Receiver
5-1-50
Sd. illegible 5-1-50
Vakil
G.N. Mishra
5-1-50
Sd. Tulsi Ram Verma
5-1-50
74
In the Court of the Additional City Magistrate, Faizabad
at Ajodhya Police Station.
...........
Application under Section 526 Cr.P.Code.
In Re:
Rex Versus 1. Muslamans
2. Hindus.
Anisul Rahman son of Molvi Waziruddin, resident of Begam-Pura,
Ajodhya, Faizabad .......Applicant
The applicant above named begs to submits as under:-
1. That the applicant has a reasonable apprehension that a fair
and impartial inquiry cannot be had in the above noted proceedings
in courts at Faizabad.
2. That the applicant is going to move an application for transfer
in the above noted proceedings in the Hon'ble High Court of
Judicature at Allahabad.
Therefore, the applicant prays that the proceedings may be
stayed to enable the applicant to move the transfer application in the
Hon'ble High Court of Judicature at Allahabad.
Sd./- Anisul
Rahman
Applica
nt'
Faizabad
The17th January, 1950: through
Counsel for the
applicant
75
ORDER
The case is stayed subject to the applicant's is executing a
personal bond of Rs.200/- to the effect that he will put in an
application before the Hon'ble High Court before 15.2.1950. The
case will be taken up on March............ by which time the transfer
application is to be decided.
Sd./- illegible
17.1.1950
76
In the Court of the Additional City Magistrate, Faizabad
at Ajodhya Police Station.
...........
Rex Vs. Hindus & Muslims
Proceedings under Section 145
Cr.P.C.
Whereas I have moved u/s 526 Cr.P.C. to move the Hon'ble
High Court Allahabad to get the case transferred to some other
district for disposal. I have been asked to furnish personal bond for
Rs.200/- for the same. I hearby in compliance of the said order
enter into a personal bond of Rs.200/- that I will move a transfer
application in the High Court within 15
th
February, 1950. In default
the bond may be forfeited.

Sd./- Anisul
Rahman
File

Sd./- illegible
17.1.1950

77
To
The District Magistrate, Faizabad
Sir,
In compliance of a proper order duly served on me I assumed
charge on the 5
th
of Jan. 1950 of the premises in dispute in the
JNMBHUMI, Ajodhia, which were attached under Section 145. I
am required to submit a scheme of its management. The most
important item of management is the maintenance of the Bhog and
Puja in the condition in which it was carried on when I took over
charge.
The number of pujaris cannot be less than three. Two persons
are required to keep constant watch to prevent the depredations of
monkeys who snatch away the the flowers from the Singhasan and
lift away other things.
Below I give the various Bhogs which are being performed,
the items of which they consist, and their daily cost.
Bhog No.1. Mangal Bhog consisting of dry fruits Rs.1/-
Bhog No.2 Shringar Bhog consisting of sweets
Rs.1/8
Bhog No.3. Raj Bhog consisting of
a. Dal Rs.1/-
b. Rice Rs.2/8
c. Ata Rs.2/8
d. Sag Rs.1/8
e. Masala Rs.-/8
f. Ghee Rs. 2/8 Rs. 10/8
Bhog No.4 Uthanpan Bhog consisting of fresh fruits and Namkin
Rs.2/-
Bhog No.5 Arti bhog consisting of one seer of Laddoos Rs.3/-
78
Bhog No.6 Bayaroo Bhog consisting of Puri, Sag, and Milk.
Rs.7/-

---------

Rs.25/-
Besides the Bhog, other commodities required for the Puja.
Kesar Rs.-/4/-
Agar Bati Rs.-6/-
Phul Mala in large quantity. Rs.2/6
Chandan Rs.-4/-
Itra Rs./8/-
Light Rs.3/-
Rs.6/12/- Rs.6/2
Grand total 31/2
In addition to this staff mentioned above there should be a
supervisior at Rs.45/- to look to all these things.
The three Pujaries will be getting food in the form of Bhog.
The Head Pujari will get Rs.15/ p.m. and the other two Rs.5/- p.m.
each. There will be a kahar also who will be getting Rs.30/- p.m.
This brings the total expenditure on the maintenance of the
premises to Rs.1057/- p.m.
On the income side we have the cash offerings only. The
income from offerings commencing from 23
rd
Dec. 1949 upto the
5
th
Jan. 1950 i.e. during the period before the charge was
Rs.233/4/6. But the average monthly income will be Rs.300/- or
thereabout only. The maintenance, therefore, becomes much too
costly.
I shall, therefore, invite applications from parties willing to
perform the Bhog at a cheap contract basis. I shall entrust the Bhog
to the most suitable of these parties. My own idea is to spend
between Rs. 10/- to s 15/- on all the daily items. Thus will bring
down the expenses to about Rs.500/-
79
Locked boxes for cash offerings will be provided. The in
case receipts will be entered in the account book daily. The cost of
Bhog will be paid daily.
The watch and ward arrangement of the premises will
continue as heretofore i.e. by the Police. The entry of the portion in
dispute area will also be regulated as before. The Pujaris, my local
representative and other persons employed by me should be allowed
free access.
I await your instructions about funds.
The Magistrate in-charge should be intimated about this.
Yours faithfully
(Priya Dat Ram)
80
In the High Court of Judicature at Allahabad.
Original Transfer Application No. 208 of 1950
under Sec. 526/528 Cr.P.c. pending in the Court
of the City Magistrate, Faizabad.
Anisur Rahman son of Moulvi Vaziruddin caste Syed
resident of Mohalla Begampara, Ajodhya (Faizabad)
............Applicant.
Vs.
Rex ............ Opposite party
To,
The Hon'ble the Chief Justice and his Companion Judges of
the aforesaid Court.
The humble petition of the applicant abovenamed most
respectfully showeth:-
That for the reasons disclosed in the accompanying affidavit
it is respectfully prayed that the criminal case No. of 1949 Rex
Vs. Anisur Rahman under Section 145 Cr.P.C. pending in the court
of the Additional City Magistrate, Faizabad be transferred to some
other court of competent jurisdiction outside the district of Faizabad
and further proceedings of the case be stayed meanwhile.
Note: Stay order be sent to the court of the Addl. City Magistrate,
Faizabad in the said case.
Sd. M.A. Kazmi
Counsel for Applicant.
Dated 2.2.50
81
In the High Court of Judicature at Allahabad.
***
Affidavit
in
Criminal Misc. No. 208 of 1950.
Anisur Rahmam .........Applicant.
Versus
Rex ....... opposite party
Affidavit of Anisur Rahman son of Moulvi
Wazirruddin, caste Syed resident of Mohalla Begampara, Ajodhya,
Faizabad. I, Anisur Rahman aforesaid solemnly affirm and state as
follows:-
1) That I am the sole applicant in this application and am fully
acquainted with the facts deposed below.
2) That in Ajodhya there is a historical mosque built by Emperor
Babar in 1528 A.D. Called the Babari mosque which has got a grant
attached to it and is registered under the Waqf Act and the courtyard
of the mosque is separated by a wall from small temple which is
situated to its East.
3) That Hindus and muslims of Ajodhya have been peacefully
and calmly carrying on their worship in the temple and prayers in
the mosque respectively from times immemorial.
4) That on the 9
th
. Of November, 1949 it was found that two
tombs and about 25 graves which lay outside the compound of the
Babari mosque had been levelled down and the mosque in the
cemetery known as the Qanati mosque had been dug up and a
new platform adjacent to the aforesaid mosque was constructed and
an idol placed on that platform.
5) That from 22.11.1949 the Hindus of the place started their
'Jap' (worship) on that place in which a large number of Hindus
were collected and for that reason the police advised the muslims
not to say their prayers in the surviving Babari mosque all the 5
82
times while the 'Jap' continued but confine it to Fridays only. In
order to avoid a communal clash the muslims acted on the advice
and continued to say their prayer every Friday up to December 16,
1949. Except for the Friday prayers the mosque used to be kept
locked and guarded by the Police.
6) That on the night preceding the next Friday, namely the night
between 22
nd
and 23
rd
December, 1949 the Hindus surreptitiously
and clandestinely introduced an idol inside the mosque itself and
put it on the Member (pulpit). Pandit Ram Deo Dubey Sub-
Inspector Incharge of Ajodhya made the following report of the
incident on 23
rd
December, 1949:
On information received through Mata Prasad constable No. 1
when I reached the spot at about 7 in the morning., I learned that a
crowd of 50 or 60 persons broke the locks which were put on the
compound of the Babri Mosque, and by climbing the walls by
ladders illegally entered into (madakhilat) the mosque and have
placed the idol of Shri Bhagwan and have written on the walls
inside and outside Sita Ramji etc. in red and yellow. Constable no. 2
Hansraj who was on the duty prohibited them but they did not heed.
He called the P.A.C. Guard for help which was there, but by that
time all the persons had entered the mosque, High Officers of the
District came to the spot and engaged themselves in management.
Afterwards a crowd of 5000 collected and raised religious slogans
and performed Kriten and wanted to go inside but nothing
untowards happened due to proper arrangements. Abhey Ram
Dass, Ram Shukul Dass, Sheodarshan Dass and 50 or 60 other
persons whose names are not known have committed riot,
trespassed into the mosque and have installed an idol in the mosque
and have thus polluted (napak) the mosque. The police men on
duty and many others have been this incident and ......... this check
has been prepared.
7) That the muslims of the vicinity were at that time persuaded
by the authorities not to say their prayers that Friday. When the
83
muslims made a representation on 6
th
January 1950 they were again
asked not to say their prayers for some time to come.
8) That in the meantime the District authorities instead of
helping the muslims of the vicinity in getting back their mosque
have issued notice on 29
th
December, 1949 under Section 145
Cr.P.C.
9) That in spite of the fact that all the matters have been within
the knowledge of the authorities and the police guard has been
posted on the spot since 12
th
November, 1949, and their strength
was increased by posting an armed guard on 22
nd
November, 1949,
the above mentioned incidents have taken place. They have created
a tremendous sensation not only in Ajodhya but also in the town
and District Faizabad.
10) That it is the petitioner's case that the District authorities are
not free from communal bias and are rendering direct and indirect
assistance to the ........ pass on the mosque. The petitioner
apprehends that he cannot have a fair and impartial trial in that
district.
11) That Ajodhya being a town with a large Hindu population the
authorities appear to be wholly overwhelmed.
12) That Shri K.K.K. Nayer the present Deputy Commissioner of
Faizabad has acquired a plot of land on a long lease for building
purposes in the name of his wife Shrimati Shakuntala Nayer in
Ajodhya proper by means of a registered deed dated 7.6.1967 and
probably desires to be a resident of Ajodhya. He cannot therefore,
go against the wishes the local people of the Hindu Majority of the
place, and the applicant apprehends that he can have .......justice at
their hands.
13) That the learned Additional City Magistrate, Faizabad Shri
Markande Singh has attached the mosque and put in the charge of
Shri Priya Dat Ram who has been .....an active part in the present
agitation there. In original order he went to the length of ordering
Receiver to arrange for the worship in the ............nearly as possible
84
as at present but subsequently scored it out.
14) That the local authorities are persisting in ............ of these
proceedings and thus affording opportunity for the continued
misuse of the mosque .... there is no apprehension of any breach
of .......... the muslims are exhibiting a remarkable
............connection and in spite of the institution ........ suit in that
connection in the court of the ........ Judge, Faizabad, which is
registered as ........ In this suit even a temporary injunction has been
issued against (1) Zahoor Ahmad (2) Haji Pheku (3) Haji Mohd.
Faiq (4) Mohd. Sami (5) Mohd. Achchan (6) U.P. Govt. (7) Shri
K.K.K. Nayer, District Magistrate, Faizabad. (8) Chaudhari Kirpal
Singh S.P. and (9) Shri Markande Singh City Magistrate, Faizabad
on 16.1.1950 as under:-
Issue notices. Issue interim injunction in the meanwhile as
prayed. The defts should also be informed that a temporary
injunction has already been issued exparte.
The prayer in the application for injunction is as follows:-
Therefore the applicant prays that a temporary injunction be
issue against the defts to the effect that they should not remove the
idols of Shri Bhagwan Ram Chandra & others from Asthan Janam
Bhum the details of which are given in the .......... till the decision of
the case, and they further be ordered not to close the Ramesh Dwar
and other passages of ingress and egress to the visitors and also that
they should not place any obstacle in the Puja and Darshan.
15) That the entire atmosphere in Ajodhya and Faizabad is
surcharged with communalism and in view of the highly strained
relations between the two communities and also the district
authorities not being free from communal bias neither Ajodhya nor
Faizabad would be a proper place for the inquiry under section 145
Cr.P.C. proceedings and the life of the witnesses of the applicant
would not be safe, as is being demonstrated by the activities near
the Babri mosque.
16) That the contents of paras 1 to 15 of this affidavit are true to
85
my personal knowledge and belief, nothing has been concealed and
no part of it is false. Sd. Illegible
86
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87
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~ii i t ~ii,
i`i iii` -ii i` -ii` :ii ti
szsc
88
{ { 0 -48
iiiiii ~ii -iii ii; ii` -ii -iti i -i iiii
iiii ti:ii i` -ii iii` ii t:ii iii iii -i t--i
ii iii-i -i :ii` i-i ~iii ii iii i` t ~iii ii
-i i-ii -ii :+s iiii -ii iii
iiii ~iiiii
-ii ii i` i t:ii i ~iiii i iii iii -i t--i i t:ii
i +c i :s ii
:iii`iiii -i tii ii iiii ~iii ii it:ii i i i` iii -i iiii
ti:i :i i:ii i iii t i` i
n{E-1. it i`i iiii -ii :i i-ii i` -i ii i iii; i; t
n{E-2. it i` i ;:i i-ii i -i ~ii -ii :i i ~i i` t iii
-i :ii-iii i ii ;iii ii t i i ii -ii :i i ~i
-i :ii-iii i -ii i i` i i-iii -i. i t ~ii iiti tii -i ~ii i-i ii ii
-i ii ii -i ii ti ii ti -ii ~iiiii i -ii i i` t iii -ii :i i
~i ii -iii ii t
n{E-3. it i`i ;:i -ii :i i iiii ~ii :i i` t -i :ii-iiii -i iiii
ti ii ti :ii :s+ i iii -i -ii :i i i i` t::i ii ii i` ii
iii, -ii :ii i` t -i i-i :i ii ti ii ;:ii ii -i :ii-iiii i
iti i-iii -i. ii i i i` ii ~ii i` t ii i ;:i-i iii -i ii ii
ii ~ii ii ~ii t t
n{E-4.t-i t:ii iii iii -i t--i ii ii ; iii iti t i` i iii -i
;:i -ii :i ii i` t ~ii ii
i` ic iii -ii t--i i` ic t:ii
89
t-i t:ii iii iii -i t--i ~ii szsc ii i-i ii-i iiti
-i iiii ti-i :i i:ii i ii t i` i -ii-i i -iii -i ;-i i
iii i :i :iti i :i t i ;:i-i ii ; iii i` -ii; i; t ~ii i ii ;
iii ii t i i -i i -i i
i` iiiii iii -i t--i i` ic~i c t:ii
-i t:ii iii iii -i t--i ii -ii` tiiiii t
iiiii
~iiii iii :i
i iiii -i iiii
8-2-50
90
{ { 0-49
~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii iti i i` i-i ~ii is i` ii-i:iici` ic:iic
ii -i ;
iii-i
-i i` i:i ~iii ii -i ii ~it -i
-i i-ii -ii :+s iiii -ii iii
iiii iti i i` -iiiii` ii -ii i iiii :iii` ii
-ii tii :iii ii i it ~iiiii i` iii -i iiii
v-1. it i` i i`i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiii; i;
v-2.it i` i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i ii ii -iii -ii ii i

v-3. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
v-4. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -ii ;:i iit :i i ti iii i` i
i` t iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii
-i :ii-iiii ii it iii i iii`i :i -ii :i -i iii -ii iii iii ii
iii t , i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii
~ii`iii i i` iii ~ii ii :i iii iii i` ii t t
91
v-5. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
.iiii ,
i` ic ~i c -ii
iic
92
{ { 0-50
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii t:i ~ii : i: iiii i iiii
ii iii-i -i i` :iii ~iii ii
-i i-ii -ii :+s iiii -ii iii
-i -ii ~iii sc :iii i iiii :iii` ii :iii ii i it i
iiii i i` iii -iiiii ti-i :i i:ii i iii t
v-1. it i` i i-i i-ii i` -i -i i` ii i iiii -ii :i iii; i; t

v-2. it i` i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti

i i
v-3. it i` i iiiii i ii :i i si i i` i -i :ii-iii ii i -ii :i -i
i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i ii ii -iii iti ii
t
v 4. it i` i ~i i ii t i -ii i ii ii -i :ii-iii iii i` :i-i i si
i i` i iiii -ii :i -i i-iii -i.i i
v-5. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
v-6. it i` i -i :ii-iiii ii it iii i ii i` i -ii :i -i iii :i
i ii ii ii iii ii iii t
v-7.it i`i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
93
v-8. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
i` ic ~i c -ii
-i -ii ~iii iic ::zsc ; c ii i-i ii-i
ii ti -iiiii ti-i :i i:iii iii t
i` i -ii-i i -iit -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i
i` ic~i c
-ii
-i -ii ii -itiiiii t
:i i i i` -i~i iii
94
{{ 0 -51
iiiiii ~ii-iii i`:ii -ii`i: :iiti iti -iiiii
ii ~ii-iii :i-ii` :iiti i`iii ii -iiiii
:iii iii
iii-i
~iiii-i i:i iit .ii`iiiiii
iii:+s iiii i-iii`-i -ii`
~ii-iii ii,
:iii -i ii .iiiii t i`i ~ii-iii ii ii ~iiii -i -ii -ii-ii
iiii :: -iii :ii sz ; ii tiii i`iiii ii, ii`ii :iiiiii .iiii ii iic
+ -iii :ii sz ;c ii :iii ii :iiti i iti : -iit ii i ti i; ~ii
;:i :i-ii .iiii iiiii:i -i i t, ~ii iiii -iii -i .iiii tii`i ~iiii
iti ti :iiii, ;:i iii ~ii-i:i .iiiii t i`i -ii-i ii iiii :+ ~i.ii
:ii sz ;c i ii ii iii iii`i .iiii ~i-ii -ii-i ii -i ii i :ii ii
~ii-iii ii t-iii ii :i iiii -i iii i ii
Forwarded to the City Magistrate,
Faizabad for favour of necessary .iiii
action. ~ii`ii-i i:i
( Seal) iic:cssz ;c
Superintendent,
District Jail, Faizabad
95
{ { 0-52
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii-i -i i` :iii ~iii ii
-i i-ii -ii :+s iiii -ii iii
-i -ii t--i -i ~iii sc :iii i iii :iii` ii i
iiii it ~iii ii, iiii ~iiiii i` iii -i iiii ti-i :i i:ii i
iii t
v-1. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

v-2. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
v-3. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
v 4. it i` i ~i i ii t i -ii i ii ii -i :ii-iii iii i` :i-i i si
i i` i iiii -ii :i -i i-iii -i.i i
v-5. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
v-6. it i` i -i :ii-iiii ii it iii i ii i` i -ii :i -i iii :i
i ii ii ii iii ii iii t
v-7.it i`i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
96
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
v-8. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
t:iii;~i-iii i
-i -ii t--i -i ~iii iic ::zsc ; c ii i-i ii-i
ii ti -iiiii ti-i :i i:iii iii t
i` i -ii-i i -iit -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i
t:iii; ~i-iii i
-i -i t--i -i ii -ii` tiiiii t
tc;:i i i i` -i~i
~iii iii :i
ii i .
97
{ { 0-53
~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii iti i i` i-i ~ii is i` ii-i:iici` ic:iic
ii -i ;
iii-i
-i i` i:i ~iii ii -i ii ~it -i
-i i-ii -ii :+s iiii -ii iii
iiii iti i i` -iiiii` ii -ii t--i -i i iii
:iii`ii -ii tii iiiii it ~iii ii i` iii
-iiiii
v-1. it i` i i`i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiii; i;
v-2.it i` i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i ii ii -iii -ii ii i

v-3. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
v-4. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i iii` i :i -ii :i -i iii -ii iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
98
v-5. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
.iiii ,
-ii t--i -i
tc; ~i-iii i
iic ::zsc
99
{ { 0-54
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii
iii-i
-i :ii` i-i ~iiiii .ii`iiii ii
-ii-ii -ii :+s iiii -ii iii
-i ~iii -i ii i ii -i +s :iii :iii` ii i i
iiiii it ~iii ii, iiii ~iiiii i`iii -iiiii ti-i :i
i:ii i iii t
v-1. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

v-2. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
v-3. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
v 4. it i` i ~i i ii t i -ii i ii ii -i :ii-iii iii i` :i-i i si
i i` i iiii -ii :i -i i-iii -i.i i
v-5. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
v-6. it i` i -i :ii-iiii ii it iii i ii i` i -ii :i -i iii :i
100
i ii ii ii iii ii iii t
v-7.it i`i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
v-8. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
i` ic~i c;
-i ~iii -i ii -i +s :iii ~iii iiii i
:szsc i` ic~i c; i-iii-i ii ti -i iiii ti-i :i
i:ii i iii t
i` i -ii-i i -iii -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i

101
{ { x 0-55
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii -i ;
iii-i
-i :ii` i-i ~iiiii -i ii ~it -i
iiii iti i i` -iiiii` ii ~iii -i ii -i-i ii
:iii`ii i i iiiii ~iiiii, i` iii -iiiii
v-1. it i` i i`i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
v-2.it i` i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i ii ii -iii -ii ii i

v-3. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
v-4. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t
v-5.it i`i :ii i-iii :i i` t ~ii -ii :i i -ii :iii -i ii
102
~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t t
v-6. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
.iiii ,
~iii -i ii
iic :szsc
i` ic~i c;
103
{ { x 0-56
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii
iii-i
-i :ii` i-i ~iiiii .ii`iiii ii
-ii-ii -ii :+s iiii -ii iii
-i iii -i i ~i i ~iii i -i zz :iii :iii` ii i` :iii
ti it ~iii ii, i` iii -i iiii ti-i :i i:iii iii t
v-1. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

v-2. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
v-3. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
v 4. it i` i ~i i ii t i -ii i ii ii -i :ii-iii iii i` :i-i i si
i i` i iiii -ii :i -i i-iii -i.i i
v-5. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
v-6. it i` i -i :ii-iiii ii it iii i ii i` i -ii :i -i iii :i
i ii ii ii iii ii iii t
104
v-7.it i`i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
v-8. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
i` ic~i c;
-i iii -i -i zz :iii ~iii iiii i :sz
sc i` ic~i c; i-i ii-i ii ti -iiiii ti-i :i i:ii i
iii t
i` i -ii-i i -iii -i ;-i i iii i :i :iti
:szsc i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i

105
{ { x 0-57
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii -i ;
iii-i
-i :ii` i-i ~iiiii -i ii ~it -i
iiii iti i i` -iiiii` ii iii -i -i -i ~i i ~iii i
:iii` ii i` :iii ti it ~iii ii, i` iii -i iiii
v-1. it i` i i`i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
v-2.it i` i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i ii ii -iii -ii ii i

v-3. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
v-4. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t
v-5.it i`i :ii i-iii :i i` t ~ii -ii :i i -ii :iii -i ii
106
~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t t
v-6. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
.iiii ,
iii-i
iic
i` ic~i c;
13-2-50
107
{ { x 0- 58
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s iiii -ii iii
iiii iti i i` -iiiii` ii -ii t--i t :i i ic i:ii :iic
-ii c i` -iii-i iii ii it ~iiiii i` iii -i iiii
v-1. it i` i i`i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiii; i;
v-2.it i` i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i i i ii -i ii -ii iii i

v-3. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
v-4. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -ii iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
v-5. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
108
.iiii ,
iic :+zsc ; c i` i:iiii ~i i i; -ii t--i t :i i
n > 0 x{ b
c +v *
109
{ { x 0-59
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii t:i ~ii : i: iiii i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s iiii -ii iii
-ii t--i t :i i i ss :iii i i:ii -ii tii i` -iii-i iii ii
it ~iii ii i` iii -i iiii ti-i :i i:iii iii t i` i
v-1. it i` i i-i i-ii i` -i -i i` ii i iiii -ii :i iii; i; t

v-2. it i` i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti

i i
v-3. it i` i iiiii i ii :i i si i i` i -i :ii-iii ii i -ii :i -i
i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i ii ii -iii iti ii
t
v 4. it i` i ~i i ii t i -ii i ii ii -i :ii-iii iii i` :i-i i si
i i` i iiii -ii :i -i i-iii -i.i i
v-5. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
v-6. it i` i -i :ii-iiii ii it iii i ii i` i -ii :i -i iii :i
i ii ii ii iii ii iii t
v-7.it i`i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
v-8. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
110
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
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iiiii

111
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112
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113
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114
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115
In the Court of the Civil Judge, Faizabad
Copy of an order dated 3.3.51 passed by
Sri Bir Singh, Civil Judge, Faizabad in
Regular suit no. 2 of 1950.
Sri Gopal Singh Visharad
Versus
Zahoor Ahmad and others
-------
In the Court of the Civil Judge, Faizabad
Regular Suit No. 2 of 1950
Sri Gopal Singh Vishard
Versus
Zahoor Ahmad and others
------
Order
The plaintiff Gopal Singh Visharad filed the present suit on
16.1.50 on the following allegations.
He is a sanatanist Hindu resident of Ajodhya. He has always
worshipped and visited the idol of Shri Ram chandra installed at
Janma Bhumi Ayodhya. On 14.1.50 he was prevented from
entering Janma Bhumi and worshipping the idol aforesaid by the
officers of defendant No. 6 at the baseless instance and unfounded
instigation of defendants 1 to 5, thereby jeopardising his right to
worship at Janma Bhumi. The defendants 7 to 9 who are the local
officers of the defendant no. 6 are exercising undue pressure on the
local Hindu public inducing them to refrain from visiting Jaham
Bhumi. They are being actively helped in this direction by
defendants 1 to 5, who are in collusion with defendants 7 to 9.
Neither the defendant No. 6 has nor defendants 7 to 9 have any
right to interfere in religious matters or obstruct the plaintiffs right
to worship at Janam Bhumi.
The relief sought by him are :-
(a) A declaration to the effect that he is entitled to worship and
116
visit without obstruction or disturbance Shri Bhagwan Ram
Chandra and others installed at Asthan Janma bhumi, and
(b) A perpetual injunction restraining the defendants from
removing the idols of Shri Bhagwan Ram Chandra and other
installed at Asthan Janma Bhumi aforesaid.
He prayed per separate application supported by an affidavit
for an interim injunction against the defendants pending the
decision of the suit. Notices were issued to the defendants and an
interim injunction was granted in the meanwhile on 16.1.50.
Notices were served on defendants 7 to 9 on 16.1.50. The
defendant no. 7 moved an application on 8.4.50 seeking
clarification or modification of the ex parte order of injunction
issued by me on 16.1.50.
Thereupon the following order was passed:-
The 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 16.1.50 stands modified accordingly.
Defendants 1 to 5 (No. 1 Zahoor Ahmad, No. 2 Haji Pheku,
No. 3 Mohd. Faiq No. 4 Mohd sami, No. 5 Mohd Achchan Miyan)
filed objection against theinterim injunction of 13.2.50 challenging
it on the grounds that the disputed site was part of the Babri
Mosque, which was built by Emperor Babar; that it has been in the
use of the Muslims as a mosque ever since; that the Hindus never
worshipped or performed any puja there; and that the idols at
present on the site were recently planted they also pleaded that suit
was defective for want of notice under section 80 C.P.C. No further
objections were filed by the defendants 6 to 9 (6. Uttar Pradesh
State, 7 Deputy Commissioner Faizabad, 8 City Magistrate
Faizabad, 9 Superintendent of Police, Faizabad) by 25.3.50. The
objections dated 13.2.50 came up for hearing on 25.3.50 and Sir
Iqbal Ahmad on behalf of the defendants 1 to 5 in his able
arguments referred to various features of the building and the
117
surroundings to support his contentions which were controverted on
behalf of the plaintiff. This necessitated the issue of a commission
to prepare a map of the building in question. On the date of the
appointment of the commission, defendants 1 to 5 applied for
taking of a photograph of building which were granted. Maps and
photographs were accordingly prepared and now form part of the
record.
The case came up for hearing again on ........ when the
District Govt. Council (representatives of defendants 6 to 9 adopted
the contentions of defendants 1 to 5 and further pleaded that the suit
is bad for want of notice under Section 80 C.P.C. ..............Plea of
Section 80 C.P.C. is open to defendants 1 to 5. 1942 Bombay 339 is
a case in point. It can, however, certainly be raised by defendants 6
to 9 who place reliance on the well known case of Bhagchand
Versus Secretary of State, reported in 1927 P.C. 176 on behalf of the
plaintiff it is strenuously urged that Bhagchand's case has no
application to the facts of the present case. He bases his argument
on Krishna Swami Versus Syed Ahmad, reported in 136 I.C. 777
(1932) and other earlier cases. The decisions on the point are
without doubt conflicting. It will, therefore, be premature to decide
at this stage as to whether the suit is liable to be thrown out for
want of notice under section 80 C.P.C.
For the purpose of these proceedings it has to be seen
whether the plaintiff has a fair question to raise as to the existence
of the right alleged, whether he is endanger of loosing that right and
whether irreparable injury or inconvenience is likely to result to
him, in case the injunction order is drawn. It is conceded on all
hands that the idol in question were on the disputed site before
filing of the suit. It further appears from the copies of a number of
affidavits of certain muslims residents of Ayodhya that at least from
1936 onwards the muslims have neither used the site as a mosque
nor offered prayers there and that the Hindus have been performing
their puja etc. on the disputed site. Nothing has been pointed out to
118
discredit these affidavits, which along with the existence with the
idols on the disputed site clearly show that the plaintiff has got the
fair case to go to the trial. The defendants 1 to 5 rely on a number
of documents to show that the building in dispute has always been
mosque. It is not possible at this stage to anticipate any decision on
this point because it will have to be decided after considering all the
oral and documentary evidence that may be adduced by the parties
in this case. The undisputed facts remains that on the date of the
suit the idols of Shri Ram Chandra and others did exist on the site
and that worship was being performed by the
Hindus ........................The affidavits referred to above does make
out a prima facie case in favour of the plaintiff.
As to the balance of convenience, it is obvious that the effect
of vacating the interim injunction at this stage is likely to deprive
the plaintiff of the right claimed by him in the suit. Moreover, it is
matter of admission between the parties that there are several other
mosques in the Mohalla in question. The local muslims will not
therefore, be put to much inconvenience if the interim injunction
remains in force during the pendency of the case.
For these reasons, I hold that the status quo should be
maintained.
Order
The interim injunction order dated 16.1.50 as modified on
19.1.50 shall remain in force until the suit is disposed off.
Sd. Bir Singh
Civil Judge
3.3.51
119
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120
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121
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122
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123
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124
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125
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126
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127
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129
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iiiz.it i` i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
131
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
iiis. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
-i ~iii :szsc i-i ii-i .iiii
ii ti -iiiii ti-i :i i:iii iii t i ii
i` i -ii-i i -iii -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i
:szsc
( ;iii, i` i:iiii iii
:szsc
132
{ { x 0-74
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s
iiii iti i i ii i zs :iii i i -ii tii
:ii i it ~iiiii -ii ii -i iiii
iii:. it i` i i` i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
iiiz.it i`i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i i i ii -i ii -ii iii i

iiis. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
iii+. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
iiis. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
133
iiis. -i -ii` ii -i ii; ~ii -ii ii t
.iiii ,
iic :+zsc i` i:iiii i ii
tc;~i-iii i
zzss
134
{ { x 0-75
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii-i -i i :i-i ~iiiii

-i i-ii -ii :+s iiii -ii iii
-iii` i ti :iii i sc :iii i i` ii iiii :iic
-ii tii -iiii it ~iii i` iii -i iiii ti-i :i i:ii i iii
t
iii:. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

iiiz. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
iiis. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
iii +. it i` i ~i i ii ti -ii i ii ii -i :ii-iii ii i i` :i-i i si i
i` i iiii -ii :i -i i-iii -i. i i
iiis. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
iiis. it i` i -i :ii-iiii ii it iii i ii i`i -ii :i -i iii :i
i ii ii ii iii ii iii t
135
iiiz.it i` i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
iiis. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
-i ~iii :szsc i-i ii-i .i ii ii ti -i iiii
ti-i :i i:ii i iii t ti :iii
i` i -ii-i i -iii -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i
:szsc
( ;iii, i` i:iiii ti :iii

i` i:iiii ti :iii
136
-i-i i czz
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii-i -i i :i-i ~iiiii

-ii-ii -ii :+s iiii -ii iii
-iii` i -iiii i +s :iii i i -ii :iic -ii tii ii
it ~iii i`iii -i iiii ti-i :i i:ii i iii t
iii:. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

iiiz. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
iiis. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
iii +. it i` i ~i i ii ti -ii i ii ii -i :ii-iii ii i i` :i-i i si i
i` i iiii -ii :i -i i-iii -i. i i
iiis. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
iiis. it i` i -i :ii-iiii ii it iii i ii i`i -ii :i -i iii :i
i ii ii ii iii ii iii t
iiiz.it i` i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
137
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
iiis. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
-i ~iii :szsc i-i ii-i .iiii
ii ti -iiiii ti-i :i i:iii
iii t -iiii
i` i -ii-i i -iii -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i
:szsc
( ;iii,
i` i:iic;-iiii

i` i:iiii -iiii
i` ic~i c;-iiii
138
{ { x 0-78
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s
iiii iti i i` -iiiii` ii -iiii i i -ii i +s :iii
ii -i :i i tii :iii`ii -ii tii ii it ~iii i` iii -i iiii
iii:. it i` i i` i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
iiiz.it i`i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i i i ii -i ii -ii iii i

iiis. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
iii+. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
iiis. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
139
iiis. -i -ii` ii -i -i i -ii t
.iiii ,
i` i:iiii
tc;~i-iii i -iiii
zzss
140
{ { x 0-79
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii-i -i i :i-i ~iii ii

-i i-ii -ii :+s iiii -ii iii
-iii` i i i ii i ss :iii i iiii ~iii :iic
-ii tii ii ii it ~iii i`iii -i iiii ti-i :i i:ii i iii
t
iii:. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

iiiz. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
iiis. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
iii +. it i` i ~i i ii ti -ii i ii ii -i :ii-iii ii i i` :i-i i si i
i` i iiii -ii :i -i i-iii -i. i i
iiis. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
iiis. it i` i -i :ii-iiii ii it iii i ii i`i -ii :i -i iii :i
i ii ii ii iii ii iii t
iiiz.it i` i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
141
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
iiis. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
-i ~iii :szsc i-i ii-i .iiii
ii ti -iiiii ti-i :i i:iii iii t i i ii
i` i -ii-i i -iii -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i
:szsc
( ;iii, i` ic;i i ii

i` i:iiii i i ii
142
{ { x 0-80
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s
-iii` i i i ii i ss :iii i iiii ~iii :iic
-ii tii ii ii it ~iii i`iii -i iiii
iii:. it i` i i` i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
iiiz.it i`i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i i i ii -i ii -ii iii i

iiis. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
iii+. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
iiis. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
143
iiis. -i -ii` ii -i -i i -ii t
.iiii ,
i` i:iiii
tc;~i-iii i i i ii
zzss
iic :szsc ; c
i` ic~i i i;
144
{ { x 0-81
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii-i -i i :i-i ~iiiii

-i i-ii -ii :+s iiii -ii iii
-iii` i -ii t--i ;:-ii;i i ss :iii :iic iii :iii,
-i iiii it ~iii i` iii -i iiii ti-i :i i:iii iii t
iii:. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

iiiz. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
iiis. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
iii +. it i` i ~i i ii ti -ii i ii ii -i :ii-iii ii i i` :i-i i si i
i` i iiii -ii :i -i i-iii -i. i i
iiis. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
iiis. it i` i -i :ii-iiii ii it iii i ii i`i -ii :i -i iii :i
i ii ii ii iii ii iii t
iiiz.it i` i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
145
iiis. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
-i ~iii :szsc i-i ii-i .iiii
ii ti -iiiii ti-i :i i:iii iii t -ii t--i
;:-ii;i
i` i -ii-i i -iii -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i
:szsc
( ;iii, ( ;iii,

;iii
146
{ { x 0-82
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s
iiii iti i i` -iiiii` ii -ii t--i ;:-ii;i i ss :iii
i ; ii -i :i i ~ii:iii , ii i :iii, i`iii -i iiii
iii:. it i` i i` i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
iiiz.it i`i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i i i ii -i ii -ii iii i

iiis. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
iii+. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
iiis. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
iiis. -i -ii` ii -i -i -iiii i`-iii t
147
.iiii ,
-ii t--i ;:-ii;i
tc;~i-iiii
i` i:iiii -ii t--i ;:-ii;i
zzss
iic :szsc ; c ( ;iii ,
148
{ { x 0-83
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii-i -i i :i-i ~iiiii

-i i-ii -ii :+s iiii -ii iii
-iii` i ~i i :ii i sc :iii i ; i ii -i :ii :iic
-ii tii iiii it ~iiiii i` ic -i iiii ti-i :i i:ii i
iii t
iii:. it i` i i-i i-i i i` -i -i i` ii i iiii -ii :i iii; i; t

iiiz. it i` i -ii :i iii i ii ~ii i` t ~ii i ~i-iii iii iti

i i
iiis. it i` i iiiii i ii :i i` :i-i i si i i` i -i :ii-iii ii i
-ii :i -i i-iii -i. -iii i ~ii i` t ii i iii ~i-iii -i i i ii -i ii
iti ii t
iii +. it i` i ~i i ii ti -ii i ii ii -i :ii-iii ii i i` :i-i i si i
i` i iiii -ii :i -i i-iii -i. i i
iiis. it i` i :ii :s+ -i i` t -i :ii-iii ii i ii -i :ii-iiii
ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t iiii;
s -i :ii-iiii i ii ii -i ii ii ti ii
iiis. it i` i -i :ii-iiii ii it iii i ii i`i -ii :i -i iii :i
i ii ii ii iii ii iii t
iiiz.it i` i i` t ~ii i ii :ii i-iii :i -ii :i i -i i :iii -i
149
ii ~i-iii ~ii` iii i i` iii ~ii ii :i iii iii i`ii t
iiis. it -i ii` t ii ;:i-i ii ; ~ii-ii` i iti t i` i -ii :i -i
i` t ~ii ii ~ii` iii iii-i ii iii i ii i` i :i :iii -i i-iii
-i. ii -i :ii-iiii ii it i i`iii-i t
-i ~i i :ii ~iii iic :szsc i-i ii-i i` i:iiii
~i i i;~i i :ii ii ti -i iiii ti-i :i i:ii i iii t
i` i -ii-i i -iii -i ;-i i iii i :i :iti
i :i t , i ;:i-i ii ; iii i` -ii i; t
~ii i ii ; iii ii t , i i -i i -i i

i` i:iiii ~i ii;~i i :ii
( ;iii,

:szsc
150
{ { x 0-84
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s
-iii` i ~i i :ii i sc :iii i ; i ii -i :ii :iic
-ii tii iiii it ~iiiii i` ic -i iiii ti-i :i i:ii i
iii t
iii:. it i` i i` i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
iiiz.it i`i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i i i ii -i ii -ii iii i

iiis. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
iii+. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
iiis. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
151
-i. ii -i :ii-iiii it i i` iii-i t
.iiii ,
~i i ii

tc;~i-iii i
zzss i` i:iiii ;~i i ii

152
{ { x 0-85
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
ii iii-i -i i :i-i ~iiiii
-i i-ii -ii :+s
iiii iti i i` -iiiii` ii ~i i iii i sc :iii i iii ii -i
:i i :iic ii :ii ~iiiii ii -ii tii ii i i ~iii i` iii -i iiii
iii:. it i` i i` i:i :iii -i ;:i :i-ii iiii -ii :i t ,:i :iii -i
i-ii i` -i -i i` ii ~ii :ii ii ii i -ii :i iiiii iii t
iiiz.it i`i -ii :i iii i ii ii i` t ~ii i ~i-iii iii iti
i i ~ii i` :i-i iiiii i ii :i i si i i` i -i :ii-iii i-iii -i. i
-iii i ~ii i` t iii iii iti -i ~i-iii -i i i ii -i ii -ii iii i

iiis. it i` i ii ~i iii t i -ii i ii -i :ii-iii i` :i-i i si i i` i
iiii -ii :i -i i-iii -i. i i
iii+. it i` i :ii :s+ ; c -i i` t -i :ii-iii i ii i ii
-i :ii-iiii ii iiii iiii -ii :i -i ;:i iit :i i ti iii i` i i` t
iiii; s -i :ii-iiii i ii ii -i ii ii ti ii ~ii -i :ii-iiii
ii it iii i ii i` i :i -ii :i -i iii -i iii iii ii iii t ,
i` t ~ii i :ii i-iii :i -ii :i i -i i :iii -i ii ~i-iii ~ii`iii
i i` iii ~ii ii :i iii iii i` ii t t
iiis. it i` i .iiii ii ii ; i iti t i` i iiii -ii :i -i
i` t ~ii ii iii itii ii iii , :i ii:i i` i :i :iii -i i-iii
-i. ii -i :ii-iiii it i i` iii-i t
153
.iiii ,
~i i iii
iic :szsc ; c

i` i:iiii ;~i i iii

154
{ { x 0-86
iiiiii ~ii -iii i` :ii -ii` i: -iti i -i iiii
iiii t-ii ~ii : i: iiii i iiii
ii iii-i -i i :i-i ~iiiii

-ii-ii -ii :+s iiii -ii iii
-iii` i ~i i iii i sc :iii i iii ii -i :i i
-ii tii :iic ii :ii ~iii iiii :iic -ii c i;i i iiii it
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155
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158
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160
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162
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iic :szsc
163
145 CR.P.C.
IN VOL. 1 & II
VOL-II PAGE 133-322
The reply of other connected papers have been submitted to
the Deputy Commissioner in the English Dak on 18.3.50.
.........
City Magistrate
Faizabad.
164
From-
Shri K.S. Varma, B.A., LL.B.,
Depty Registrar, High Court of
Judicature at Allahabad,
Post Box. No. 23.
To,
The District Magistrate,
Faizabad.
Crl. Misc. 208-50
No. 3220/dated/ April 1950.
Criminal Miscellaneous No. 208-1950
--------
Anisur Rahman Versus State.
Case under Section 145 Cr.P.C., pending in the Court
of the Addl., City Magistrate, Faizabad.
Sir,
I am directed to invite your attention to the Court's
letter No. 2388, dated 9.3.50, enclosing therewith copies of
application and affidavit filed in the case noted on the margin and to
ask you kindly to submit with the least possible delay your
explanation as well as of the learned Additional City Magistrate.
Yours faithfully,
Deputy Registrar.
3.4.50
165
From-
Shri K.S. Varma, B.A., LL.B.,
Depty Registrar, High Court of
Judicature at Allahabad,
Post Box. No. 23.
To,
The District Magistrate,
Faizabad.
Crl. Misc. 208-50
No.2388 /dated/ 9
th
March, 1950.
Criminal Miscellaneous No. 208-1950
--------
Anisur Rahman Versus State.
Case under Section 145 Cr.P.C., pending in the Court
of the Addl., City Magistrate, Faizabad.
Sir,
I am directed to invite your attention to the Court's
letter No. 2388, dated 9.3.50, enclosing therewith copies of
application and affidavit filed in the case noted on the margin and to
ask you kindly to submit with the least possible delay your
explanation as well as of the learned Additional City Magistrate.
Yours faithfully,
Deputy Registrar.
11.3.50
166
In the High Court of judicature at Allahabad.
--------
Criminal Transfer Application no. 208 of 1950
under Section 526/528 Cr.P.C. pending in the
court of the city Magistrate Faizabad.
--------
Anisur Rahman son of Moulvi Vaziruddin caste Syed
resident of Mohalla Begampara, Ajodhya (Faizabad)
...... Applicant
Versus
Rex ...... Opposite
Party
To,
The Hon'ble the Chief Justice and his Companion Judges of
the aforesaid Court.
The humble petition of the applicant abovenamed most
respectfully showeth:-
That for the reasons disclosed in the accompanying affidavit
it is respectfully prayed that the criminal case No. of 1949 Rex
Vs. Anisur Rahman under Section 145 Cr.P.C. pending in the court
of the Additional City Magistrate, Faizabad be transferred to some
other court of competent jurisdiction outside the district of Faizabad
and further proceedings of the case be stayed meanwhile.
Note: Stay order be sent to the court of the Addl. City Magistrate,
Faizabad in the said case.
Sd. M.A. Kazmi
Counsel for Applicant.
Dated 2.2.50
167
In the High Court of Judicature at Allahabad.
***
Affidavit
in
Criminal Misc. No. 208 of 1950.
Anisur Rahmam .........Applicant.
Versus
Rex ....... opposite party
Affidavit of Anisur Rahman son of
Moulvi Wazirruddin, caste
Syed resident of Mohalla
Begampara, Ajodhya, Faizabad.
I, Anisur Rahman aforesaid solemnly affirm and state as
follows:-
1) That I am the sole applicant in this application and am fully
acquainted with the facts deposed below.
2) That in Ajodhya there is a historical mosque built by Emperor
Babar in 1528 A.D. Called the Babari mosque which has got a grant
attached to it and is registered under the Waqf Act and the courtyard
of the mosque is separated by a wall from small temple which is
situated to its East.
3) That Hindus and muslims of Ajodhya have been peacefully
and calmly carrying on their worship in the temple and prayers in
the mosque respectively from times immemorial.
4) That on the 9
th
. Of November, 1949 it was found that two
tombs and about 25 graves which lay outside the compound of the
Babari mosque had been levelled down and the mosque in the
cemetery known as the Qanati mosque had been dug up and a
new platform adjacent to the aforesaid mosque was constructed and
an idol placed on that platform.
5) That from 22.11.1949 the Hindus of the place started their
'Jap' (worship) on that place in which a large number of Hindus
168
were collected and for that reason the police advised the muslims
not to say their prayers in the surviving Babari mosque all the 5
times while the 'Jap' continued but confine it to Fridays only. In
order to avoid a communal clash the muslims acted on the advice
and continued to say their prayer every Friday up to December 16,
1949. Except for the Friday prayers the mosque used to be kept
locked and guarded by the Police.
6) That on the night preceding the next Friday, namely the night
between 22
nd
and 23
rd
December, 1949 the Hindus surreptitiously
and clandestinely introduced an idol inside the mosque itself and
put it on the Member (pulpit). Pandit Ram Deo Dubey Sub-
Inspector Incharge of Ajodhya made the following report of the
incident on 23
rd
December, 1949:
On information received through Mata Prasad constable No. 1
when I reached the spot at about 7 in the morning., I learned that a
crowd of 50 or 60 persons broke the locks which were put on the
compound of the Babri Mosque, and by climbing the walls by
ladders illegally entered into (madakhilat) the mosque and have
placed the idol of Shri Bhagwan and have written on the walls
inside and outside Sita Ramji etc. in red and yellow. Constable no. 2
Hansraj who was on the duty prohibited them but they did not heed.
He called the P.A.C. Guard for help which was there, but by that
time all the persons had entered the mosque, High Officers of the
District came to the spot and engaged themselves in management.
Afterwards a crowd of 5000 collected and raised religious slogans
and performed Kriten and wanted to go inside but nothing
untowards happened due to proper arrangements. Abhey Ram
Dass, Ram Shukul Dass, Sheodarshan Dass and 50 or 60 other
persons whose names are not known have committed riot,
trespassed into the mosque and have installed an idol in the mosque
and have thus polluted (napak) the mosque. The police men on
duty and many others have been this incident and ......... this check
has been prepared.
169
7) That the muslims of the vicinity were at that time persuaded
by the authorities not to say their prayers that Friday. When the
muslims made a representation on 6
th
January 1950 they were again
asked not to say their prayers for some time to come.
8) That in the meantime the District authorities instead of
helping the muslims of the vicinity in getting back their mosque
have issued notice on 29
th
December, 1949 under Section 145
Cr.P.C.
9) That in spite of the fact that all the matters have been within
the knowledge of the authorities and the police guard has been
posted on the spot since 12
th
November, 1949, and their strength
was increased by posting an armed guard on 22
nd
November, 1949,
the above mentioned incidents have taken place. They have created
a tremendous sensation not only in Ajodhya but also in the town
and District Faizabad.
10) That it is the petitioner's case that the District authorities are
not free from communal bias and are rendering direct and indirect
assistance to the ........ pass on the mosque. The petitioner
apprehends that he cannot have a fair and impartial trial in that
district.
11) That Ajodhya being a town with a large Hindu population the
authorities appear to be wholly overwhelmed.
12) That Shri K.K.K. Nayer the present Deputy Commissioner of
Faizabad has acquired a plot of land on a long lease for building
purposes in the name of his wife Shrimati Shakuntala Nayer in
Ajodhya proper by means of a registered deed dated 7.6.1967 and
probably desires to be a resident of Ajodhya. He cannot therefore,
go against the wishes the local people of the Hindu Majority of the
place, and the applicant apprehends that he can have .......justice at
their hands.
13) That the learned Additional City Magistrate, Faizabad Shri
Markande Singh has attached the mosque and put in the charge of
Shri Priya Dat Ram who has been .....an active part in the present
170
agitation there. In original order he went to the length of ordering
Receiver to arrange for the worship in the ............nearly as possible
as at present but subsequently scored it out.
14) That the local authorities are persisting in ............ of these
proceedings and thus affording opportunity for the continued
misuse of the mosque .... there is no apprehension of any breach
of .......... the muslims are exhibiting a remarkable
............connection and in spite of the institution ........ suit in that
connection in the court of the ........ Judge, Faizabad, which is
registered as ........ In this suit even a temporary injunction has been
issued against (1) Zahoor Ahmad (2) Haji Pheku (3) Haji Mohd.
Faiq (4) Mohd. Sami (5) Mohd. Achchan (6) U.P. Govt. (7) Shri
K.K.K. Nayer, District Magistrate, Faizabad. (8) Chaudhari Kirpal
Singh S.P. and (9) Shri Markande Singh City Magistrate, Faizabad
on 16.1.1950 as under:-
Issue notices. Issue interim injunction in the meanwhile as
prayed. The defts should also be informed that a temporary
injunction has already been issued exparte.
The prayer in the application for injunction is as follows:-
Therefore the applicant prays that a temporary injunction be
issue against the defts to the effect that they should not remove the
idols of Shri Bhagwan Ram Chandra & others from Asthan
Janam Bhum the details of which are given in the .......... till the
decision of the case, and they further be ordered not to close the
Ramesh Dwar and other passages of ingress and egress to the
visitors and also that they should not place any obstacle in the
Puja and Darshan.
15) That the entire atmosphere in Ajodhya and Faizabad is
surcharged with communalism and in view of the highly strained
relations between the two communities and also the district
authorities not being free from communal bias neither Ajodhya nor
Faizabad would be a proper place for the inquiry under section 145
Cr.P.C. proceedings and the life of the witnesses of the applicant
171
would not be safe, as is being demonstrated by the activities near
the Babri mosque.
16) That the contents of paras 1 to 15 of this affidavit are true to
my personal knowledge and belief, nothing has been concealed and
no part of it is false. Sd.
Illegible
D.M.
With reference to your order dated 11.3.50 on the .......of the
Deputy Registrar in connection with the Crl. Misc. No. 208/50
Anisul Rehman Vs. State, I beg to offer my explanation parawise as
follows:-
1. I have no knowledge regarding allegations contained in paras
1,2,3,4,5 & 7 of the affidavit filed by Shri Anisul Rehman and
therefore I am not in a position to say anything about them.
2. I am not in a position to note any comment on the allegation
in para 6, since the matter referred to therein are the the subject of a
proceeding pending before me.
3. Regarding allegations contained in para 8, I beg to say that on
being satisfied from credible sources that a dispute likely to lead to
a breach of the peace between Hindus & Muslims in Ayodhya over
the question of rights of proprietor ship & worship in the buildings
claimed variously as Babri Masjid & Janam Bhumi Mandir, I
passed an order u/s 145 Cr.P.C. and attached the said building. The
parties were called upon to put in written statement of their
respective claims with regard to the fact of actual possession of the
subject of the dispute. As a matte of fact the order u/s q45 Cr.P.C.
was meant to check an imminent breach of the peace.
4. Regarding allegations contained in para 9 I have to say that it
is not clear what matters are alleged to have been within the
knowledge of the authorities and therefore no explanation is
possible. If however, it refers to existence of tension between the
two communities on account of the building in dispute, Section u/s
145 Cr.P.C. was appropriately taken and it had the desired effect of
172
preventing breach of peace.
5. The allegations in para 10 of the affidavit are vague &
baseless and are denied.
6. With regard to the contents of para 11, I beg to state that it is
a fact that Ayodhya has a large Hindu population, but it is wholly
incorrect that the authorities were overwhelmed by the Hindus.
7. I have learnt that a Nazul plot in Ayodhya was acquired
sometime ago by Shrimati Nayar, but I have no information that
Shrimati Nayar acquired it for her. In this connection it may be
worthwhile to mention that Shri Nayar is no more the District
Magistrate of Faizabad.
8. As regards contents of para 13, I beg to say that the said
buildings were attached & put incharge of Shri Priya Dutt Das. It is
incorrect to say that he has been taking active part in the agitation.
The alleged portion of my order scored out before signing and
promulgating it, is, in no sense, a part of my order. I may, however,
and that this portion was scored out as the time of signing the order
as I felt that it was superfluous.
9. As regards contents of para 14, the court is equally eager to
dispose of this case as speedily as possible. The case was stayed
when the petitioner applied for the stay of the proceedings.
10. As for the allegations of para 15 I have to say that the
allegations are unfounded, incorrect and unjustified.
(Markandeya Singh)
CityMagistrate, Faizabad.
5-4-1950
173
No. 1234/XV-37-9 Dated 6.4.50
From
Shri J.N. Ugra,
District Magistrate,
Faizabad.
To
The Deputy Registrar,
High Court of Judicature at Allahabad.
Post Box No. 23.
Sir,
With reference to your letter No. Crl. Misc. 208-50. 2320
dated April 1, 1950 I have the honour to forward the explanation of
the city Magistrate Shri Markandeya Singh who is seized of the
case u/s 145 Cr.P.C.
With regard to my own explanation, I have to submit that I
have taken over charge as District Magistrate, Faizabad on the
afternoon of 14
th
March 1950 and have had nothing to do with the
case at any stage.
Yours faithfully,
District Magistrate.
174
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175
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iiii ii :itiiii :i iii i` ii iiii iii :i-.iii i i` t -ii-i ii
:itiiii :i :i--iii ti ti t
iiis.it i` i :i-ii :ss :i ~iiiii` i ii ; -i :ii-iii i` iiii:-i i i` -i
i ii i iti ~iiiiiiii ~ii i iii ii ; -i :ii-iii :i ~iii` i i
ii i i i iii i ii i ; i .iii ii i`iii t
iii. it i` i ii` i-ii iiti`.ii iii ii-iiii -i :ii-iiii i iit
:i i iiii i i-i iii ii i -i :ii-iiii ii -i i` -i .iii ii ii i
i` ii` -ii .ii i iii ii .iii i` iii ~ii -i i` i :ii -i i i ii ii tiii
ii i i i ii ~ii ~i:i-ii t , iii i` i i` :ii` ii ii -iti i i
iiiiii -i ii .i:i i ti iii ~ii i` iii ~iiii ii .ii i ti i;
iii:c. it i` i -ii i i iiiii :ii :i-i:i iii iiti iii:+s i`
ii`i :i i` tii ~ii :ii ii ii ii ti t , it :iiii ~ii i` ii i ~ii i t
~ii i` i:i ti ii iii` t -i i iiii ii ii iii` iii -i i ii :iii` -ii
tii iii` t
.iiii ,
iiii ~iiii-i i:i
i` i-iii
i` iii z i` :i-i :ii :sc ; c
tc;~ii` ii-i i:i
176
iiiiii ~ii -iii iiiii i -iti i -i iiii

iic -i ii zzsc ; c
: -i ; ; .iiii
iii-i
ii-iii -i i` i-iii ii
ii-i-i i` i-i iii :+s iic -ii iii
i` ii` ii iiii iiii i i i:i i ii -iti -ii tii:i -i i i` i-ii ti
~iiii i -i iii -i i` i-ii i` -i :iic -ii tc i-i ii it ~i
ii.
iii:.it i` i -i i` i-ii i` -i iii it i i` -i i` i:i -i -i i` i :ii t ,
i` -ii iii ~iiii i` i-ii ti -iti i` i-ii ti i -i iii ~iiii i ~ii` iii
i ~iii i t ~ii iti :i -i iii iii` ii ii ~iii t
iiiz. it i` i ii i` :i i` ii i z:z+ ~ii i ~ii iiiiii t
iiis.it i` i ii :i :+s iii i ~iii i i` i:ii ii ii i` iii i ii-i i
ti i i iii iiiiii t
iii+.it i` i z:z+ iii :ii -i i i` i:ii ii i` i ii iti i ii
ii ; ii -i i` i-ii i` -i ii :i:i :i-ii ii i i` -i ii iii i :i-ii -i
iti ii ~ii i ~ii t , ~ii iii :+s :ii ii ~ii-ii ii t
iiis.it i`i ii iii i -i i` i-i i i` -i ii :i:i :i i i` ii iii
;iii` -i ~i-iii iii iiti ti ii i` iiii :i ii :i i i` ii iii
ti , iii -i i-ii -i -ii i ti i ~iiiii t ~ii :ii i ti i -i
ii i` :ii iii :ii ii ii :ii iii iiti iiiiii ~ii iii i i i`
177
i t ~ii iiii i i i i i ii i t
iiis. it i` i i i i i` -i i iii ,i`i:iii ii ti i` i-ii` ii`ii t ,
i` i-ii ti ~iiii ii i` -ii iii t ~ii iti ~iiii :i -i :z ii :i
~ii`ii :i iii` ii t
iiiz.it i` i .iiii ~iii ii ~ii :i i i zccs :i it i` :iii -iiii
-i i` ii -i ii-ii ii ii i ~ii iti i :ii :iii ~ii ~ii ~iiiiii ii
:i ii iii iii ~iiii t ~ii i-i :i s :iii s -i iii z :ii ;ii ~ii
i -i i i` i-ii ti ~iiii t-i ii iti -i ti t ~ii :i i` iiii iii -i
ti ~ii :ii i t ,i ii -i i` ii itii iii i -ii i-i i-i i :ii
t
iiis. it i`i :ii :ss ii :ss :i iii ii ; -i :ii-iii ;:i
-i i` i ~i i` i:iii ii ti ii i i` iii t , iti ~iiii t ~ii i it
:iii ;:i ii i -i iii i-iii i i` i ;:i -iii i` iii iii
iii. it i`i i -i :ii-iiii i iit :i i :iiii
i-i iii` ii i -i :ii-iiii ii -i i` i ~i i-iii -i. ii ii .iii
i` iii ~ii -i i` -i -i i iii ii iti i` iii-iii t , t tii ii i i
ii ,i`i:ii i` i i c-ii c:iii ii :ii i-i iii` ii ~ii i
-i :ii-iiii -i i` iii iit :i ~iiii-i i ~iiii :iiii
i-i iii` ii ii , i iiii -i ii i i` ii iii t , ii i` :ii` ii ii
-iti i i ;iii:i -i ii ti t , ~ii iii iiti :+s iii i ~iii i
~iiiiii ~ii i` ii i t , i i i i iii t
iii:c. it i`i i` i:ii -i i` ii -ii :i -i -i ii i i-iii ;iii` i
ii i i` i iii:+s :iiii ~ii i` ii ~ii i` ii-i i` i t
~ii .iii ii t i` i ii i` :i i` ii i z:z+ iii` i i` iii iii

178
i-i:ii i ii ti -i i` i-i i i` -i iii -ii tii i-i ii it
~iiiii
-ii i-i i i` ii
-iii :ii -iii
.iiii ,
iiii ii i i:i
tc.;ii i i:i
i` ii i zzsc; c;
z:zsc
179
{ { x 0-105
iiiiii iiii i` :ii -ii` i: :iiti -iiiii
ii:i t:i -ii :+s iic -ii c
ii -i :i-ii :i :.~iti i` t ~iii ii -ii i ~iii
z.-i :ii-iiiii ~iii ii -ii i i -i
~ii -iii ii , :i ii -i i` ii i t i`i ;-iii -i iii` iii -i:iii` i
iiii itiiit ~iii-i ~iiii -iit i` -ii :i -i ii-i iii iit -it -i ii
ii-ii ii t i` i:iii itiiit ~iii-i -iii i :ii :szs ; c -i
ii-ii iii -i :ii-iiii i i` i ii :i ~ii-i i i` ii i` i:i-i ~ii-i
-i :ii-iiii ii ti ;iii tii` :ii t t-i :iiiiii ~iiiii i` iii:ii t
~ii -i:iii` i -iii iiii ;-iii -i iiiiii -i -i :ii-iiiii iti i` iii
i` i:ii i i i i i` :i-i :ii :+ ; c ii iii i-iii ~ii ii
t t ~ii ;:i it :i ~ii-i -i :ii-iiii ~ii , ~ii :iiiiii ii iii i
ii ;-iii -iiiii` iii iiii iiii -ii :i -i :i i :i iii ~iiii t ,
i` itiii .iii ii t i` i :iiiiii ii -ii i -i i-ii ii -i -ii i i -i
iii iii ~ii ii iiii iti i i` -iiiii` ii -iii i -i -ii iii
~iii :i t -iii :iiti ii iii` ii :i ii` ii ~iiii t , it t-i :iiiiii
i-i :i ii i:i~i i` iii iii ~ii :iiiiii ii ii -i ii -i i-ii ii
;iiii i iii
.iiii ,
( ;iii, :iiii -i t--i i i:iiii -i c :i iti i
-i t--i tii` i-i -i i-iiii i ii -i ii
-i c i i` ii it ~iii ii iiii
~iii ii i` iii -i iiii iic z:+~i-ic
180
{ { x 0-106
iiiiii ~ii -iii tii`i-i ;iii :ii` ii iii -i iiii
~ii -iii :i ii -i i` ii i t i` i iiii :ii :s: ; c ii .iiii i
i ii:i iii i` ii i` i:iii i-i zzss t , ii i-i i ii
i-ii-i zzs:; c ii i ii ti i szs: ; cii i` -iii , ~iii ii
-i -iii -i t ~ii i` i iii iii :i i iiii :i iiii iiii iti i i
iiii ti-ii ii iii i` ii, i` itiii ii` i ii:i tiii -i :i;
t i` i iiii iti i i` -iiiii` ii ( -i :ii-iiiii, ii iii i` ii i iii
iii iii ii ;ii ti i; t it i` iiii -i iii` tii -i :ii` i-i
ii:i tiii t ~ii ;:i iii iii ii -ii i` iii iiii iti i
i` -iiiii` ii -i :ii-iiiii -i iii i` ii iii
.iiii ,
-i c ~ii i-i i` -i~i, iii
-iiiii
:iiii
iic +s: ; c
tc; ~i-iii i
Copy.
tc;~i-iiii
181
{ { x 0-107
i~iiii iiii i` :ii -ii` i: :iiti iti -i iiii
i :i -i :iii :i
iii-i
:.~iti i` t ~iiiii -ii i ~iii
z.-i :ii-iiiii ~iii ii -ii i i i-i
ii ii; t:i -ii :+s iiii -ii iii
iiii iti i i` -iiiii` ii -ii i i i-i
-ii:. it i` i ;-iii -i iiii`iii iii -ii tii i-iii it
~iii ii itiiit i` t iii iit ii ii-ii ii -ii :i -ii :i -i
iiiii -ii :i t , i` i:iii itiiit -iii i ii -ii tiiii
i` ti :iii i ii iii-i ~iii ii :ii :szs ; c -i i ii iiii ~ii
ii-ii ii i-ii-i -i :ii-iiiii i i` i ii -i i i` ii, i` i:i-i ~ii-i
-i :ii-iiiii ii ti ;iii t
-iiz. it i`i ii ii-ii -ii :i -iii itiiit iiii -ii :i
-iii ii i`iiiii i ii ~iiiiii i i` i i i-i ~ii` iii
:iiiiii ~i-ii iiiii iiti :i -ii i i` iii , ii i ii :iiii
-i ii` iii -ii :i -iii ii iii i` -iiii ti, ~ii ii iiii :iiii
-i ii` iii iiiii i ~iii i ;:i ~ii` iii ii iii-i ii, ~ii iiii
~ii:i-ii ii iti i ~i-ii i-iiii t i -ii -i i-i ~ii` iii -iii ii
;ii-ii ii -i ii` ii scz c s ~iiii s -ii; :iiiiii ~iii iii
-i i i`iii, ii i-i ii ;iii :iiii ~iii i` ii` i iii -i i ii
iii ii ~ii i-iiii ii i:i ~iii -i iii -i iiii` iii i -i i
182
ii iiii ii iiii ii ~ii`iii -iii i -iiii` iiii ii ii-i i i
iti i-i -i ii` :ii ~iii ii iii -ii-ii i` iiii -i:iii` -i -ii :i iiii
~iii i` iii
-iis. it i` i ~ii-i -i :ii-iiiii ~ii -ii i i i-i ii iii iii
ii-i ~ii-i ;-iii -i iiii` iii iiii -ii :i iiii -i :szs :i ~iii
ii -i :ii:ii iii ~iiii t
-ii+. it i` i -ii i i i-i i ~ii-i -i :ii-iiiii iii ~ii +cc
:iii i;-i i ~iiiiti -ii i ~ii i ~ii-i ~iti i` t ;-iii
-iiiii` iii -i iii -ii :i ii -i ~ii-i i` iii i`i:ii i i i i i ~i-iii
;iii ii ~ii i-iii -i. i ii ~iii t
-iis. it i` i -ii i ~iii ii ~ii-i ~iti i` t ii ii ; ti
;-iii -i iiii`iii iiii -ii :i iiii -i i ii ~ii i t , ~ii i iii
iii iii ;:i -i ti t ~ii i t
-iis. it i` i ;-iii -i iiii`iii iiii -ii :i iiii i iii
-i i` i-ii i` -i ii ~ii i t , ~ii i iii ~ii i-iis ii ii -i i` ti

iiiz. it i` i -ii i i i-i i i i -i :ii-iiiii i ;-iii -iii
iiii -ii :i iiii -i :s i` :i-i :ii + ; c ii i-iii i -ii ii-iii
~ii ii
iiis. it i`i i ii i` :i -i:i ~it i i` t i , i` i:i-i i
-i ii-ii -ii i ~iii ii iii` -ii ii , :z ii-i :ii :+ ; c ii
;-iii -i iiii` iii iiii -ii :i iiii i ii i i -ii t -ii :i :i
iit -i ii-i i i` iii, i` i:i-i i ~i-ii t i:ii ~it i i` t ii i-ii
t ~ii,i` i:ii i` i i ii ~ii iiiii -ii :i ii i t -iii ii , ii
-ii i i i-i i ;:iii ii ti ii-i i`iii ii i , ii ti i i
-i i` i:i ii ;:i -i ii-i -i i iii i i` ii i` i ~ii;i ;:i i` i:-i ii
183
tii :ii i ti
iii. it i`i zz ii-i :ii + ; c ii ii it -iit t ~ii
i` i ;-iii -i iiii` iii iiii -ii :i -i i ii i` i -i:i -i -ii` :i
t-iii iii iiti t , ii :iii ;iii ti ii-i i`iii ii i i; ,ii
ti i -i i` i:i ii -i ;ii-ii i i` ii ~ii t i-iii i ii -ii :i
-iii -i iiii iiiii iii iii
iii:c. it i` i ;-iii -i iiii` iii iiii iiii -ii :i -iii
;:ii ii :i iii t-ii ti i i iii i it-i -i i ii ii :i
-i i` i:i ii ii i` t-iiii -i -ii i-i -ii ii i; , -ii zz i zs i` :i-i
:ii + ii ii -i i -i-ii` i ~ii i -i:i ~it i i` t i -ii :i
-iii -i -iiiii i ii i ii i ~ii iiiiii :i i -i i i ~ii
i-iis ii iiiii ii :ii -i -i -i i i , i` i:iii i` -ii i-i i
i :ii;:i-i i iiii ~iii ii i i ii i :i ~iiii -i i ii
~ii -i i-ii t:i -ii :+z, zs i ++s iici` tc i` iii-i ~i-i ii ii:i
i sc, sc i i ~it i i` t iii-i i` iii -iii ~iii ii ;:i tii
(~i-ic ;iii, i -i i iiiiii -i ii` -iiii i i` iii-i iii i :i ii ;
ti iii -i i iti ti :iiii
-ii::. it i`i -ii i ~iii i ;:i -i i -i ii` -iiii i i` iii-i
iii i i -ii i ti ii t iii-i i` iii i -i ii-ii -i i` i:i i -ii i -ii :i
-iii :i -ii i ~iii ii i` iiii i` ii ~ii -ii :++ iiii
-iiiii ii i` i-iii i i` ii
-ii:z. it i` i -ii i ~iii i -i ii iiii ~i-iii iiiiii i
tiii -i ii` -iiii :i t-i -ii i ii-i ii t-i ii -iii ~iii :i
i ii ~i-i ii ~i ii t ~ii i` -iiiii` ii -ii i ii-i ii ; ~i ii
i i ~i-ii ii iti t
iii:s. it i` i ;-iii -i iiii`iii iiii -ii :i iiii i ti-ii-i
184
:i ii :i i ii ~ii-i ii -i i c-ii c t , ;:ii` i it ii -ii i
-i i-ii t , i tiii i~iiii iiiiiti i -ii i i i-i -i :i; t i` i
:iii iii iti ;iii ii i`i :iii ;-iii -iiiii` iii iiii
iiii -ii :i -i tii` :ii ii ~ii t , itii ii iii ~ii -ii i ~iii
ii -i -iii` iii i i iii i` i it -iii i i-i i iii ~ii ;iii -i
-i i`ii i ti ~ii -ii :i -iii -i -iiiii i i ~ii ~ii iiiii ii
-i ii ii i i i; t , :iii -ii i tii i ~ii ;-iii -i iiii` iii
iiii -ii :i iiii -ii i i i-i i ti -i iiiii -i-ii ; iii
iic szsc; c
z:zsc ; c ;iii

.iiii ~iii :i t-iii :iic -i c
ii-i-ii it ~iii ii i`iii -iiiii
185
The District Magistrate,
Faizabad.
In the matter of case under Section 145 Cr.P.C. relating to
Ramjanambhumi and Babri Mosque.
----------
In the Court of the City Magistrate, Faizabad.
******
Sir,
I beg to submit for your kind consideration and favourable
orders:-
1) That in December 1949 proceedings referred to above were
started in the court of the City Magistrate, Faizabad.
2) That I filed a Civil suit for declaration and injunction in the
court of the Civil Judge, Faizabad suit No. 2 of 1950.
3) That one Ram Chandra Paramhans also filed a similar suit in
the same court no. 250 of 1950.
4) That on the application of Mohammadan defendants the two
suits were consolidated.
5) That in the case under Section 145 Cr.P.C. certain Muslim
residents of Ajodhya had filed their written statements with
affidavits.
6) That certified copies of about 20 affidavits were taken from
the case under Sec. 145 Cr.P.C. and were filed in the said civil suits.
7) That I have come to know in the case under Section 145
Cr.P.C. no dates are now being fixed.
8) That the said filed of the case under Sec. 145 Cr.P.C. will be
required in the court of the Civil Judge, Faizabad but as the file is
before the High Court at Allahabad the Civil Judge, Faizabad will
not be in a position to summon it.
P R A Y E R
The applicant therefore prays that the entire rile of the case
186
under Section 145 Cr.P.C. referred to above be preserved ( and not
weeded out) until such time as it is not summoned by the Civil
court, even though under the rules time may come or its weeding
out.

Applicant.
187
Faizabad
The 22
nd
, July, 1954 Gopal Singh Visharad
State Vs. Janam Bhumi & Babri Mosque
under section 145 Cr.P.C.
ORDER
This is a case under Section 145 Cr.P.C. in which Shri
Markandey Singh, Magistrate Ist class and Additional City
Magistrate, Faizabad cum Ayodhya on 29
th
December, 1949 passed
an order for attachment of the building claimed as Babri
Mosque/Janam Bhumi Mandir and handed over possession of the
same to Shri Priya Dat Ram, Chairman, Municipal Board, Faizabad
cum Ayodhya as receiver for arranging for the care of the property
in dispute. Shri Priya Dat Ram on January 5, 1950 assumed charge
of the premises in dispute in Janam Bhumi Ayodhya.
An application for transfer of the case was moved in the high
court of the judicature at Allahabad by Anisur Rahman s/o Molvi
Waziruddin, but it was rejected on 30.5.50 by the Hon'ble High
Court.
A Regular suit no. 2 of 1950 was filed in the civil court by
Shri Gopal Singh Visharad against Zahoor Ahmad and others and
the U.P. State, Deputy Commissioner, Faizabad, City Magistrate,
Faizabad and Superintendent of Police, Faizabad are also parties to
that suit. A temporary injunction as follows was issued on 3.3.51
by the learned civil judge, Faizabad.
The parties are hereby restrained by the 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 16.1.50 stands modified accordingly.
This case under Section 145 has been lingering on
unnecessarily and dates are being fixed in the hope that the civil suit
might be disposed of or the temporary injunction vacated.
The disputed property i.e. Babri Mosque/Janam Bhumi
188
premises are already in possession of the receiver Sri Priya Dat
Ram appointed by the Additional City Magistrate under his order
dated 29
th
December, 1949 referred to above and the said receiver
has been looking after the property since 5.1.1950, the date of
assuming charge. As 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 what may be
finding of this Court after recording the evidence of the 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 record as it is and will be taken out for proceeding
further when the temporary injunction is vacated.
Sd/- Prem Shanker
City Magistrate, Ist class,
Faizabad.

30.7.53.
189
D.M.
Kindly see the headlines in Virakt about the case under
section 145 Cr.P.C. about Janam Bhumi. The information has
been very wrongly given in it.
The case under Section 145 Cr.P.C. had been pending for a
long tme and dates after dates were being given in it. Under my
order dated 30.7.53 I consigned this file as it is to be taken out for
proceeding further as soon as the temporary injunction issued from
the civil court is vacated.
I submit this file under my order for perusal.
Sd/- Illegible
18.8.57
190
In the court of the city Magistrate, Faizabad.
*****
In re:
Case under Section 145 Cr.P.C. relating to
Shri Ram Janam Bhumi Ayodhya Faizabad.
Sir,
In the above mentioned case the humble petition of
Srivastava N.P. Sinha son of Srivastava Bindha Prasad, president of
Pura Sherjang Qanungoyan Ayodhya district Faizabad respectfully
showeth as under :-
1. That certain property relating to Shri Ram Janam Bhumi has
been attached by this Hon'ble court under the said proceeding.
2. That the petitioner is the proprietor of Shri Ram Janam
Bhumi and as his proprietorship is not disputed by any party is
entitled to retain possession of the entire property of the temple
such as Arti village Tahsil and district Faizabad, Muafi Ramkot and
Pramod Ban &c and also the property which has been attached by
this Hon'ble court under the above mentioned proceedings.
3. That the petitioner was a necessary party in the aforesaid
proceeding but has not been impleaded and the entire proceeding
have been taken behind his back and are void and illegal.
Wherefore it is prayed that in the circumstances in the case
the property attached be ordered or recommended to be released in
favour of the petitioner who along with his three some sons
Srivastava A.K. Sinha, Srivastava V.K. Sinha and Srivastava V.K.
Sinha is entitled to remain in peaceful possession of the same so
that justice be .....
191
{ { x 0-
iiii ii ii` -i i` i:i ~iii ii , -i iiii
:i ii :ici c;:ii +z;cs i` ii i ~ii:i c:,zccs
:i ii -i ,
~ii ic:ic i ,
i` iii iiii i` iiii icici c
-iic i iiiiii,
iii i-ii,iii
i -iii ~ii-i ~i-ii -i-i :i iisc+ ~iici cii cii c-ic;zccs
i` ii izzzccs ii :ii iti ii ii i i , ii -i c~ic:i c
z:s;:+ iii:+z;zs;++s iicci` ic iiii ii iiiii ~iiiii
-i iiii ii .iii`i;-ii` ii-i i :i-ii -i t
i i :i-ii -i :ii ~iiii iiii t i` i iiii iiiiiii
~iii ii i icici c ii-i -iiiii i ~ii` ii ii ii itiii :i ~i
iii ii i` iii iii ~ii ii-iii iii ii iii -i ii t ~ii i` i
i:iii i :i-ii i -iii-i :i ii iiiiii ii i; .iii ii-ii -i iii
ti i i iii ii i` i ~iiii i :i-ii -i ii-ii .iii:i ii -i ii
ii :i ii` ii i` ii ii t , :iii i` iii i` i-i t
-i c~ic:i c z:s;:+ iii :+z;z:s;++s iicci` ic iiii
iiiiiii ~iii ii -iiiii -i i` ii i zs:z:+ ii iiiii i iiii
; iii -i i` ii ii ~ii i-i i i ii i` -ii -i i` i ~ii` ii-i i:i,
i` ii i i i:i, i-i :iii i:i ~ii scsc i-i ~ii ii ii ii-i -iii
~iiii -i iii i t ~ii ii ;:i -i i-i -i i` ii iii-iii ~ii ~ii` ii-i
i:i ~iii` cs ii ii i i` i ~iii -i -i-i i` iii c:cz:sc ii .i i`ii
t ~ii ii, :i ii :ii t i ii-i ~i-iii i` i: i cs -ii tii
~iii-ii i ii :i .ii-i i :i-ii ii -i c~ic:i cz:s;:+ i
~iii -i -i-i ii iii.ii`i :i ii t
.iii ii-ii -i iii ti i i iii -i iiii ii-i i i` ii` ii
iiiiiii -i -iii iiii i -iii ii :i -i i-ii i i` iiii i
-ii` ii-i i ii -i i` i -i i-ii -i i ii i` ii i t ~ii, ii iiiiii iti ti
:iii iiii ~ii` ii ii -i ii -i i-ii i -ii` ii-i ( iii i -iiii,
:iii ii i` ti t i :i-ii -i i ii ~i i` ii iti -iiii iii
~iiii i -iii ~iiii iiii i ~iiiii iii iiti t i -i
i` ii ii;iic-i c ~ii i ci c i` -i~ii ii iiiii ~iii ii ii-i -i iiii i
-iii-i :i i ii ii ti t
:i iii -ii iiii :ii
192
tc;
ii` -i i` i:i ~iii ii,
-iiiii
.ii` ii` ii` -i ii` ci` ic;iic-i c ~ii ii ci c i` -i~ii ii ;:i i` i i
i :iii i` i -iic i iiiiii iii i` ii-iii :ii iii iiti iii
193
ORDER
IN
O.O.S. No. 4 of 1989
Sunni Central Board of Wakf Vs. Sri Gopal Singh Visharad
Connected with
O.O.S. No. 1 of 1989,
O.O.S. No. 3 of 1989,
AND
O.O.S. No. 5 of 1989
The basic issue in all the suits is as to whether there was a
Hindu temple or any Hindu religious structure existed and the
alleged Babri Masjid was constructed after demolishing such temple
at the site in question.
Issue No. 1 (b) in O.O.S. No. 4 of 1989 Sunni Central Board
of Wakf Vs. Sri Gopal Singh Visharad reads as under:-
Whether the building has been constructed on the site of an
alleged Hindu Temple after demolishing the same as alleged
by defendant No. 13?
Issue No. 14 in O.O.S. No.5 of 1989 Bhagwan Sri Ram
Virajman and others Vs. Rajendra Singh and others reads as under:-
Whether the disputed structure claimed to be Babri Masjid
was erected after demolishing Janma Sthan Temple at its
site?
The Hon'ble President of India had referred the following
question to the Supreme Court under Article 143 of the
Constitution:-
1
Whether a Hindu Temple or any Hindu religious structure
existed prior to the construction of the Ram Janm Bhoomi
Babri Masjid (including the premises of the inner and outer
courtyards of such structure) in the area on which the
structure stood?
The Archaeological Science can help to resolve the question.
In the modern age the Archaeological Science has achieved the
great accuracy and points out from the excavation the past history
particularly in regard to the past existence of the construction. Sri
D.Mandal in his Book AYODHYA ARCHAEOLOGY AFTER
DEMOLITION has opined as follows:-
However, archeology can answer with a considerable
degree of certainty, many questions about various past
activities of people, for which material evidence is available.
It is for this reason that archaeological research continues
and is of importance. It is believed that sufficient
archaeological material is available regarding the temple-
mosque issue, pre-empting the need for further excavations
at Ayodhya. (page 16)
He further states that Archaeology does not generally deal
with super structures, as these seldom remain standing and awaiting
excavation. All that usually remains of structures is their
foundations. It may well be that demolition notwithstanding, the
remains of the foundations of the walls of the mosque are still in
situ. (page 52)
2
If there was any temple or religious constructions on the
disputed site or if it ever existed, foundation can be traced by
excavation.
If it is ultimately decided to excavate the disputed land, in
that event the excavation will be done by the Archaeological Survey
of India under the supervision of five eminent Archaeologists
(Excavators), even though retired, including two Muslims and the
following procedure may be adopted.
(1) The videography of excavation work be done and if
any artifacts are found, their photographs (coloured as
well as black and white and slides) may be taken. Such
artifacts/materials, if found, may be kept under the
custody of the State of U.P.
(2) Complete documentation as sites, artifacts be done
properly.
(3) The debris of disputed structure as existing after its
demolition shall be removed.
(4) The excavation or removal of the debris may be done
between 9.00 A.M. to 5.00 P.M.
(5) The Court may appoint observer for the excavation
work.
(6) At present at the disputed site the idol of Shri
Ramlala has been placed and its devotees are
3
worshiping, it may be placed at the Chabutra situate
east to the site till the excavation work is complete.
Before the final orders are issued in above terms, all the
parties are invited to submit in writing, within two weeks, their
views/suggestions.
We make it clear that the above proposal in regard to
excavation is tentative till final decision is taken on this issue.
In the meantime before excavation, the Archaeological
Survey of India will survey the disputed site by Ground-Penetrating
Radar or Geo-Radiology and obtain the report with the aid including
financial assistance by the Central Government of India.
Dt. 01.8.2002 Sd/-
Sudhir Narain
S. Rafat Alam
Bhanwar Singh
4
ORDER
IN
O.O.S. NO. 4 OF 1989
Sunni Central Board of Waqfs & Others
Versus
Gopal Singh Visharad (now deceased) & Others
Hon'ble Sudhir Narain, J.
Hon'ble S.R. Alam, J.
Hon'ble Bhanwar Singh, J.
One of the important issues in the suit is whether there was
any temple/structure which was demolished and mosque was
constructed on the disputed site. We took the view that
archaeological evidence will be of importance to decide such an
issue. We had made a suggestion in regard to excavation of the site
in question by an order date 1.8.2002 and invited the suggestions
from the parties in this regard. It was further observed that till
excavation order is passed the Archaeological Survey of India will
get surveyed the disputed site by Ground Penetrating Radar and
Geo-Radiology and will submit its report in this regard.
Certain objections were filed challenging our power to suo
moto exercising such power. We rejected the objections on
23.10.2002 holding that the Court has power to suo moto summon
any witness to record evidence, to summon any document from any
person, to make local inspection or to appoint a commission for
investigation if it thinks necessary or expedient in the interest of
5
justice.
The Archaeological Survey of India placed the order for
Ground Penetrating Radar Survey to Tojo-Vikas International Pvt.
Ltd. It has conducted GPR survey and has submitted report along
with annexures on 17
th
February 2003. the conclusion in the report
is as follows:- (Numbering is done by us)
1. In general terms, the main georadar features detected
by the present survey are anomaly alignments across the main
platform, north and south of the Sanctum Sanctorum extending to
the Ram Chabutra area, the high amplitude ringy sequence
towards the sough, and the mound structures to the east.
2. 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. As mentioned earlier,
similar indications of successive structures are shown in other
areas of the site such as shown on the example radar cross
section 2 (Annex-D).
3. The ((ringy) and high amplitude)) sequence in the
southern portion of Ram Chabutra area extends across the
fences to the east to the main platform area to cover a rather
large area. This sequence may be indicative of a flooring
6
structure of some sort, possibly stone slabs if its origin is
ancient.
4. 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.
5. Many small discrete anomalies have been detected at
various depths from 0.5 to 5.5 meters. Some of those
anomalies appear to line up in some directions but could not
be detected on some survey lines between them. As such they
have been referred to discontinuous alignment on the
geophysical interpretation map of Annex. A. They may
correspond to pillars alignment, broken up sections of wall
foundations or fortuitous patterns of independent objects or
natural features.
6. In the zones of reworked material or rubbles indicated
on the map, little penetration was achieved as the signal was
severely scattered in those units. It is possibly that some of
the trends or alignments stopping in those zones actually also
extend further.
7. In the slope area to the west, which is undulating, filled
with rubbles and steeply dipping, only small anomalies were
detected at relatively shallow depths. They appear to line up
7
somewhat as indicated on the map; however, the wider line
spacing and the poor data quality, on account of ground
conditions in this area, due to bad coupling of the antenna
with the ground, makes this interpretation difficult. This area
as explained earlier is a debris zone where heterogeneous
material was apparently dumped from the upper platform and
the origin of those detected anomalies could also be debris.
8. We are also showing some indications on the map
relative to the radar signal that are most probably related to
geological factors such as dipping layers, recent fill sequence
and zones of higher soil conductivity. They are part of the
geophysical interpretation.
9. In conclusion, the GPR survey reflects, in general 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 slab flooring, extending over a large
portion of the site. However, the exact nature of those anomalies
has to be confirmed by systematic ground truthing, such as
provided by archaeological trenching.
In para 9 of the report it is clearly stated that the exact nature
of the structure, pillars, foundation walls, slab flooring etc. can be
confirmed by excavation.
Learned counsel for the parties have filed objections to the
report submitted by Tojo-Vikas International (Pvt.) Limited. They
have also submitted their objections to the excavation as it was
8
proposed in our order dated 1.8.2002.
We have heard Sri Abdul Mannan, Sri Zafaryab Jilani and Sri
Mushtaq Ahmad Siddiqui learned counsel appearing for plaintiffs
and, Sri Vireshwar Dwivedi, Sri M.M. Pandey, Sri R.L. Varma,
Ranjana Agnihotri for the defendants in O.O.S. NO. 4 of 1989, Sri
Ved Prakash appearing for the plaintiffs in O.O.S. No. 5 of 1989 and
Sri P.L. Misra appearing for plaintiffs of O.O.S. No. 1of 1989. We
have also heard Sri D.S. Randhava appearing for Union of India
and Sri R.S. Tripathi learned Standing Counsel for the State of U.P.
We deal with their objections in seriatum:
1. The first objection is that the report submitted by
Tojo-Vikas International (Pvt.) Limited cannot be read as
substantive evidence in the suit unless it is duly proved in
accordance with law. It is urged that the persons who have
prepared the report must be examined in the Court and
secondly, the data collected by Tojo-Vika International
(Pvt.) Limited should be made part of the record.
The report has been submitted on the basis of the
results obtained by it by Ground Penetrating Radar
system. The data is collected on the computer. It is
reflection of Radar base and whenever any anomaly (in
common parlance object) was found it has noted it. It is
itself not conclusive and the report itself says that the
measurements of Geo-Radar is based on the returning
signals by a dielectric constant change. It is only guidance
9
to an Archaeologist where to excavate. We are not
recording any finding in regard to any
foundation/construction on the basis of the report
submitted by Tojo-Vikas International (Pvt.) Limited. The
report itself states that the exact nature of
anomalies/objects has to be confirmed by systematic
truthing such as provided by archaeological trench.
2. The second objection of the learned counsel for the
plaintiff is that the order of excavation will be in
contravention of Section 7(2) of Acquisition of Certain
Aria at Ayodhya Act, 1993 which reads as under:-
7(2) In managing the property vested in the Central
Government under Section 3, the Central Government or
the authorized person shall ensure that the position
existing before the commencement of the Act in the area
on 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 in
village Kot Ram Chandra in Ayodhya, pargana Haveli
Avadh, in Tahsil Faizabad Sadar, in the District of
Faizabad of the State of Uttar Pradesh is maintained.
The aforesaid provision is a direction to the Central
Government or the authorized person that it shall ensure that the
position existing before the commencement of the Act in the area on
which the structure, including the premises of inner and outer
10
courtyards of such structure, commonly known as Ram Janma
Bhumi-Babri Masjid is maintained. There is no direction for the
Court restraining it in passing appropriate order in regard to trace
out any evidenced, which is underneath the land.
3. The third objection is that Hon'ble Supreme Court
passed an order on 24
th
October, 1994 in Dr. M. Ismail
Faruqui and others v. Union of India and others, (1994) 6
SCC 360, wherein the Hon'ble Supreme Court in paragraphs
86 and 87 directed for maintaining status quo. Further the
judgment of the High Court dated 23
rd
February 1996 was
challenged before the Hon'ble Supreme Court and in that
appeal an order was passed on 10.5.1996 directing the parties
to maintain status quo. It is contended that as Hon'ble
Supreme Court has passed the order to maintain status quo,
this Court should not do anything which amounts violation of
the order passed by the Apex Court.
We have highest respect for the orders of the Apex Court. In
our view the Apex Court has not restrained this Court from passing
any order for excavation of the land in question to find the truth in
regard to rival contentions of the parties. The order of the Hon'ble
Supreme Court must be read in the context in which it was passed,
namely, the parties should not raise any construction or do anything
in regard to possession of the land till the matter is decided. We do
not find that the excavation of the land in any way amounts to
contravention of the order of the Hon'ble Supreme Court. The
11
parties themselves led archaeological evidence. They themselves
say that archaeological evidence is important evidence to determine
one of the important issues involved in the suit, namely, whether
any religious structure existed prior to the disputed structure which
has been demolished. In our order dated 1.8.2002 we have given
detail reasons as to how foundation of walls, pillars etc. reflects
upon the nature of construction. The earth may bear the testimony
and the Court in appropriate circumstances can pass order for
excavation of the land. The excavation is by digging the land and
after it is dug, the earth is again filled in. Such excavation does not
alter the nature of the land by putting any structure or in any way
affecting the user of the land in future.
We, however, make clear, as observed by the Hon'ble
Supreme Court in Dr. M. Ismail Faruqui's case (supra), that worship
by Hindu devotees in the disputed area shall not be affected while
excavation is in operation.
4. The fourth objection raised by Shri Vireshwar Dwivedi,
Advocate is in regard to power of this Court to pass order for
excavation. We have already discussed in detail on this aspect
in our order dated 23
rd
October, 2002 that the Court has
power to pass appropriate order for scientific investigation
under Order XXVI Rule 10A of Code of Civil Procedure and
in any case the principles under Order XVI Rule 4 and Order
XVIII Rule 8 C.P.C. Read with Section 151 C.P.C. are
applicable. We relied upon the decisions given in R.M.
12
Seshadri v. Vasantha Pai & others AIR 1969 SC 692,
Shaikh Mohamad Umarsaheb v. Kadalaskar Hasham
Karimsab and others AIR 1970 SC 61, Khaje Khanavar
Khadarkhan Hussain Khan v. Siddavanahalli Nijalingappa
and another AIR 1969 SC 1034, Bishwanath Rai v.
Sachhidanand Singh AIR 1971 SC 1949 and Ram Chand
and Sons Sugar Mills Pvt. Ltd. v. Kanhaya Lal Bhargava
and others AIR 1966 SC 1899.
Considering the entire facts and circumstances the
Archaeological Survey of India is directed to get the disputed site
excavated as under:-
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 100x100 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.
If it is necessary to excavate towards north or any area
more than 50 feet to the disputed area, it can do so to find out
the true position as regards to any foundation.
It is made clear that the archaeologists (excavators)
shall not disturb any area where the idol of Shri Ram Lala is
existing and approximately 10 feet around it and they shall
not affect the worship of Shri Ram Lala and thus, status quo
13
as regards His Puja and worshippers' right of Darshan shall
be maintained.
The excavation shall be done by Excavation Branch
concerned specialized in excavation work within a period of
one month from today. If they are engaged in other work it
shall be suspended till the excavation in question is complete.
If any additional staff is required the Archaeological Survey
of India and Central Government shall provide it.
Tojo-Vikas International (Pvt.) Limited which has
surveyed the site in question by GPR etc. shall assist the
excavators by providing technical assistance at the time of
excavation.
The work will commence within one week from today.
The report will be submitted within one week from the date
of completion of the excavation.
The archaeological Survey of India shall intimate the
date of the commencement of the work to the Officer on
Special Duty, Ram Janma Bhumi Babri Masjid. On receiving
such information he shall intimate the date to the parties who
can watch the excavation work.
Learned counsel for the parties can also appoint
nominee including Archaeologist to watch the excavation
work. IT is made clear that only one nominee of each
contesting party at one time shall be entitled to remain
present.
14
Put up on 24
th
March, 2003 by which date the Archaeological
Survey of India shall intimate to the Court of the progress made by
it in regard to excavation.
Sd/-
Sudhir Narain
S.Rafat Alam
Bhanwar Singh
05.03.03
15
Archaeological Survey of India
Introduction (pages 1 and 2)
The present excavation report deals with the excavation
carried out by the Archaeological Survey of India during March-
August 2003 at the disputed area of Rama-Janmabhumi-Babri
Masjid located between Latitude 26 47' 43.6 to 26 47' 45.0 N
and Longitude 82 11' 31.1 to 82 11' 39.9 E and around within
the fifty feet limit. The excavated area is located in the town of
Ayodhya in the district of Faizabad of Uttar Pradesh, within a close
proximity of river Sarayu, on its right bank.
Topography and Climate
With the Ghaghra (ancient Gharghara) or Sarayu as the main
river, the plain of the area are drained by seasonal water channels
mostly flowing from north-west to south-east as per the general
slope of the land and interspersed by numerous smaller water
bodies where surface water gets collected after the rains. The
region around Ayodhya along the river comes under its flood-plain
having scattered strips of alluvial land along the bank of the river
which are very narrow in some parts and extensive in others. It is
marked by large stretches of waste land covered with thick wild
growth of jjhau (Tamarix) and Kasehri (thatching grass) providing
shelter for wild animals. In this region the quality of soil varies
from good clayee alluvium to pure white sand. The clay deposits
yield a good rabi crop with very little labour but the kharif is
usually precarious. The rest of the district is an upland in which
wide expanses of cultivated fields are relieved only by habitations,
with groves of mango and mahua and by small lakes and patches of
dhak.
All the early geological formations have been buried to the
16
depth of more than 300 meters due to Pleistocene and sub recent
alluvial deposits of rivers of the Indo-Gangetic system. The
alluvium consists of inter-bedded deposits of sand, clay and gravel
with varied thickness. The clay has been used for manufacturing
bricks, tiles and pottery and Inter-bedded with them also occur
bands of kankar which is an irregular concretion of impure
calcareous matter and occurs both in the nodular and block forms in
almost all parts of the district, particularly in the vicinity of usar
land. It is generally found in the same bed with clay in bands 10 to
30 feet thick occurring at depths varying from 20 to 70 feet below
the surface. This calcareous mater has been used thoroughly in the
past for lime making as well as in the form of structural blocks of
buildings.
Ayodhya has a generally salubrious climate with four seasons
round the year. The annual rainfall is 1026.5 mm having 45.3
average rainy days with rain of 2.5 mm or more mostly during
monsoon. The average minimum temperature in January is about 8
C. (47 F.). Occasionally, it has been noticed that western cold
waves bring down the temperature within a degree or two below the
freezing point. Day temperature during summers in later May or
early June reaches 46 C. (115 F). Violent dust and thunderstorms
at times accompanied with hail are experienced in summer months.
High Court's Direction and GPR Survey
Hon'ble Special Full Bench of Allahabad High Court,
Lucknow, in the matter of OOS No.4 of 1989- Sunni Central Board
of Waqfs & others V/s Gopal Singh Visharad (now deceased) and
others, took a view in the order dated 5 March, 2003 that
archaeological evidence will be of importance to decide the issue
whether there was any temple/structuer which was demolished and
mosque was constructed on the disputed sit and observed that till
excavation order is passed the Archaeological Survey of India will
get the disputed site surveyed by Ground Penetrating Radar and
17
Geo-radiology and will submit its report in this regard.
The Archaeological Survey of India placed the order for GPR
Survey to Tojo-Vikas International (Pvt.) Ltd. (TVIPL), which
conducted the GPR Survey and submitted its report along with
annexures on 17.02.2003. The detailed GPR Survey was conducted
using State-of the -Art Ground Penetrating Radar ZOND-12 C. In
addition to the GPR Survey, two resistivity profiles and many
resistivity soundings were carried out. This survey was carried out
from December 30, 2002 to January 17, 2003. The resistivity
profiles and soundings were done to ensure the correctness of the
depth single penetration in GPR and also to get a general idea about
the nature of sub soil conductivity as GPR signal penetration gets
largely affected by soil conductivity. The total area surveyed was
about 3900 sq. meters demarcated by boundary slabs inscribed with
the roman letters A, B, C, D, E, F, and thereafter northern portion to
the end of the raised platform and further to the west, south and east
the said site to the extent of 40 feet. The entire area was first
mapped using DGPS (Differential Global Positioning System) and
digital Total Station and a Geo-referenced Bse Map were prepared.
Then the entire area was physically marked and divided into a 1 x 1
meter grid. The GPR Survey was carried out on this grid using 100
MHz high power antenna and 300 and 500 Mhz antennas. (Final
Report on GPR Survey of the Disputed Site at Ayodhya, Abstract,
p.2).
Pages No. (6 and 7)
Considering the entire facts and circumstances, the
Archaeological Survey of India was directed by the Hon'ble Court
through order dated 05.03.2003 to excavate disputed site as under:-
The area shown in the report of the Commissioner submitted
in Suit No.2 of 1950 (O.O.S No.1 of 1989) covering an area of
approximately 100 x 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
18
the said site to the extent of 50 feet.
If it is necessary to excavate towards north or any area more
than 50 feet to the disputed area, it can do so to find the true
position as regards to any foundation.
It is made clear that the archaeologists (excavators) shall not
disturb any area where the idol of Shri Ram Lala is existing and
approximately 10 feet around it and they shall not affect the worship
of Shri Ram Lala and thus, status quo as regards His Puja and
worshippers' right of Darshan shall be maintained.
The excavation shall be done by Excavation Branch
concerned specialized in excavation work within a period of one
month from today. If they are engaged in other work it shall be
suspended till the excavation in question is complete. If any
additional staff is required the Archaeological Survey of India and
Central Government shall provide it.
Tojo-Vikas International (Pvt.) Limited which has surveyed
the site in question by GPR etc. shall assist the excavators by
providing technical assistance at the time of excavation.
The work will commence within one week from today. The
report will be submitted within one week from the date of
completion of the excavation.
The archaeological Survey of India shall intimate the date of
the commencement of the work to the Officer on Special Duty, Ram
Janma Bhumi-Babri-masjid. On receiving such information he shall
intimate the date to the parties who can watch the excavation work.
Learned counsel for the parties can also appoint nominees
including Archaeologist to watch the excavation work. It is made
clear that only one nominee of each contesting party at one time
shall be entitled to remain present.
Put up on 24
th
March 2003 by which date the Archaeological
Survey of India shall intimate to the Court of the progress made by
it in regard to excavation.
In compliance of the Hon'ble High Court's direction, The
19
Director General, Archaeological Survey of India, Janpath, New
Delhi formed a 14 member team headed by Dr. B.R. Mani,
Superintending Archaeologist, Archaeological Survey of India to
start excavation at the disputed site vide letter no. F. No. 29/01/95-
Pt IV, Dated 08.03.2003, addressed to Shri Narendra Prasad, OSD,
Ram Janma Bhumi, Lucknow.
Summary of Results
Pages No. 268-272
Excavation at the deputed site of Rama Janmabhumi-Babri
Masjid was carried out by the Archaeological Survey of India from
12 March 2003 to 7 August 2003. During this period, as per the
directions of the Hon'ble High Court, Lucknow, 82 trenches were
excavated to verify the anomalies mentioned in the report of the
Ground Penetrating Radar Survey which was conducted at the site
prior to taking up the excavations. A total number of 82 trenches
along with some of their baulks were checked for anomalies and
anomaly alignments. The anomalies were confirmed in the trenches
in the form of pillar bases, structures, floors and foundation though
no such remains were noticed in some of them at the stipulated
depths and spots. Besides the 82 trenches, a few more making a
total of 90 finally were also excavated keeping in view the objective
fixed by the Hon'ble High Court to confirm the structures.
The result of the excavation are summarized as hereunder :-
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 of NBPW,
the main diagnostic trait of the period besides the grey, black
slipped and red wares. A round signet with legend in Asokan
20
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 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 this level. The pottery
collection includes black slipped, red and grey wares etc. The
stone and brick structure found from this 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,
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 for pranala, i.e, waterchute
which is distinct feature of contemporary temples already known
from the Ganga-Yamuna plain.
Subsequently, during the early medieval period (eleventh-
21
twelfth century A.D.) a huge structure, nearly 50 m in 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 stencil cut foliage pattern 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 x 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 blocks were found. The pillar bases exposed during
the present excavation in northern and southern areas also give an
idea of the 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 15 x 15 m 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
22
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 sherds 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 sherds 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.
It is worthwhile to observe that the various structures exposed
right from the Sunga to Gupta period do not speak either about their
nature of 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 pottery, terracottas and
other objects of preceding periods, particularly of Period I (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 absence of habitational
structures such as house-complexes, soakage pits, soakage jars, ring
23
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 (Medieval-Sultanate level).
The site has also proved to be significant for taking back its
antiquarian remains for the first time to the middle of the thirteenth
century B.C. (1250 130 B.C.) on the analogy of the C14 dates.
The lowest deposit above the natural soil represents the NBPW
period and therefore the earliest remains may belong to the
thirteenth century B.C. Which is confirmed by two more consistent
C14 dates from the NBPW level (Period I), viz. 910 100 B.C. And
880 100 B.C.) These dates are from trench G&. 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 generally 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.
The Hon'ble High Court, in order to get sufficient
archaeological evidence on the issue involved whether there was
any temple/structure which was demolished and mosque was
constructed on the disputed site as stated on page 1 and further on
P. 5 of their order dated 5
th
March, 2003, had given directions to the
Archaeological Survey of India to excavate at the disputed site
where the GPR Survey has suggested evidence of anomalies which
could be structure, pillars, Foundation walls, slab flooring etc.
which could be confirmed by excavation. Now, viewing in totality
and taking into account the archaeological evidence of a massive
structure just below the disputed structure and evidence of
24
continuity in structural phases from the tenth century onwards up to
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 patterns,
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.
*******


25
Other Original Suit No.4 of 1989
(Regular Suit No.12 of 1961)
Connected with
O.O.S. Nos. 1/1989, 3/1989 and 5/1989
The U.P. Sunni Central Board of Waqfs
U.P. and others ......Plaintiffs
Vs.
Gopal Singh Visharad (now dead) and others. .....Defendants.
Hon'ble S.R. Alam, J.
Hon'ble Khem Karan, J.
Hon. Bhanwar Singh, J .
(Delivered by Hon. Khem Karan, J.)
1. By this order, we are disposing of the objections/additional
objections against the report of Archaeological Survey of India (for
short ASI), which it filed under sub-rule (1) of Rule 10, of Order
XXVI of the Code of Civil Procedure (hereinafter referred to as the
Code), in compliance of our order dated March 5, 2003.
2. One of the Central or core issues, to be decided by this Court
in these four title civil suits, is as to whether the disputed structure
namely Babri Masjid was built after demolishing a Hindu Temple.
Vide orders dated August 1,2002 and October 23, 2002, we asked
the ASI to carry out Ground Penetrating Survey/Geo Radiology
Survey (GPR), of approximately 100 x 100 area of the disputed
land, so as to ascertain possibility of proof of remnants of some
earlier structure. In compliance of these orders, the ASI with the
help of Tozo Vikas international Pvt. Ltd. undertook this exercise
and submitted a report to the Court somewhere in February, 2003,
indicating as many 184 anomalies, some of which find mention on
pages 19 to 36 of ASI Report Volume-I. After considering this
report and the views of the respective parties, this Court suo moto
passed a detailed order on March 5, 2003, issuing a Commission to
ASI under Order XXVI of the Code, to investigate into the matter
by excavating the relevant area of the disputed land as indicated in
the order and submit a report. Considering the sensitive nature of
26
the dispute, the Court provided certain safeguards to ensure
transparency in the task of ASI. Besides others, the Court permitted
the parties or their counsels to remain present on the spot during the
course of excavation proceedings. The Court also asked ASI to
photograph and video-graph the process of excavation and to
maintain record pertaining thereto. As it was not practicable for the
Court to note and sort out day to day hurdles and objections, so it
appointed two experienced judicial officers of Faizabad Judgeship
to act as observer and obtain orders of the Court wherever the need
might be.
3. A 14 members team of ASI initially headed by Dr. B.R. Mani,
Superintending Archaeologist and subsequently by Sri Hari Majhi,
Director (Antiquity) assisted by several officials of the Public Works
Department and labourers, took about five months period (from
March 12 to August 7, 2003) in carrying out the excavation work
and thereafter submitted a bulky report in two volumes together
with 45 site note-books, 12 albums containing 329 black and white
photographs, w8 albums having coloured photographs, 11, video-
cassettes (VHS), digital photographs in compact disc (6 DVD
cassettes), Registers of Pottery, unsealed bones, architectural
objects stored in tin-shed at the excavated site, individual list of 9
boxes containing bones, glazed-wares, antiquities etc. day to day
Registers, Antiquity Registers.
4. Salient Features of ASI Report
Volume-1 (Text), contains ten chapters, namely, Chapter-I
Introduction, Chapter-IV Structure, Chapter-V Pottery, Chapter-VI
Architectural Fragments, Chapter-VII Terracotta Figurines, Chapter
VIII Inscriptions, Seal, Sealings & Coins, Chapter-IX
Miscellaneous Objects and Chapter-X Summary of Results, running
into 309 pages, appendices etc. With a view to verify 184 anomalies
so pointed out in GPR Survey Report dated 17.02.2003, the ASI dug
as many as 90 trenches, separated from each other by 0.50 M baulk
all around ranging from 0.50 to 5.5 meter in depth, after dividing
27
the entire area into five parts namely (1) The Eastern Area (2) The
Southern Area (3) The Western Area (4) The Northern Area and (5)
The Raised platform. Of 184 anomalies so indicated in GPR
Survey, 39 were found confirmed at specified depth and location, 74
were not found in spite of digging up to required depth and
remaining 44 could not be probed owing to unavoidable constraints.
The details of anomalies so verified by ASI can be seen on pages
19-36 of Volume-I.
5. The total deposit of about 10.80 m thick, was divided into 9
cultural periods namely (1) Period-I (Northern Balck Polished Ware
Level referring to period prior to 200 B.C.) (2) Period-II (Sunga
Level referring to 200 B.C. to 100 A.D.) (3) Period-III (Kushan
Level referring to 100-300 A.D. (4) Period-IV (Gupta Level 400-
600 A.D. (5) Period-V (Post Gupta Rajpur Level 700-1000 A.D. (6)
Period-VI (early Medieval-Pre Sultanate Level 1100-1200 A.D. (7)
Period-VII (Medieval Level 1200 to the beginning of 1600 A.D., (8)
Period-VIII (Mughal Level and (9) Perood-IX (Late and Post
Mughal Level). According to the description given on pages 38-46
of Volume-I, period-I yielded only broken weights fragments of
votive tanks, ear-studs discs, hopscoches, a wheel made on disc,
broken animal figurine (all in terracotta), an iron knife (broken),
glass beads, bone point having no bearing on the point in issue. It
was Period-II which indicated for the first time structural activity in
stone and brick as noted in trench No.J 3. The Period -III (Kushan
Level), evidenced huge-kiln, animal and human figurines, bangle
fragements votive tank (all in terracotta), a hairpin in bone, a
massive brick construction running into 22 courses at the bottom of
Trench Nos. J 5 - J 6. Gupta Level was found to have 2M thick
deposit, represented by layers 7 and 8 in Tr.N.G-7, layers No.9 and
10 in Tr. J5, J 6, layers No.7 and 8 in Tr.N.E-8 and F-8. It was from
layer No.8 of Tr. No.G.7 that a Coin was recovered bearing image
of king on obverse side and that of Garuda on the reverse side. The
ASI reports in para-I of page-40 that it appeared that with a view to
28
raise the level of the land, earth excavated from nearby area of the
mound was utilized at this level as pottery and wares of early period
were also found. The Period-V (Post Gupta-Rajpur Level) is said to
have yielded a Subsidiary Circular Shrine from baulk of Tr. Nos. E
8 and F 8 (figure 24 and 24-A of Vol.1), which according to ASI was
built around 1000 A.D. And could be associated with Lord Shiva, as
the shrine had water-parashute (parnala) towards north, resembling
with chirenath brick temple of Shrawasti (U.P.), circular Shiva
Temples near Rewa in M.P. At chardreha and mason, belonging to
950 A. D. and temples at Kurari and Tindauli in District Fatehpur
(U.P.). The ASI says on page 41 of Vol. 1 that Period-VI, evidenced
a massive north-south oriented brick wall (No. 17), markedly
inclined towards east) in Tr. No.D-7, E-2, E-1 and ZF-1, possibly
built around 1100-1200 A.D. Period-VII is said to have evidenced
existence of a massive wall-16 in north-south orientation having
length of about 150 feet, and also pillar bases towards east of this
wall. The ASI says that a column based massive structure might
have been raised on wall-16 and the 50 pillars, bases of which were
noticed. This wall-16, which according to ASI was built around the
end of 12
th
Century A.D., was having niches (Mehrab) facing
towards east and was above the level of wall-17 (page-68). In sub-
period-B of Period -VII there was found a circular
depression(ghata shaped) (see plate 67) made by cutting the large
brick pavement having the diameter of 1.05 m with a rectangular
projection of 0.46 x 0.32 m towards west in the centre of the
pavement, (if the central point was calculated on the basis of extent
of length of wall-16 or wall-17 and longitudinal length of the
alignment of pillar bases from north to south) suggesting as if the
place was of importance (see page-42 of Report). The period -VIII
(Mughal Level) having total ghickness of 23 to 25 cm., evidenced
disputed structure-3. Its western wall-5 measuring 3.0m wide having
five courses of calcrete blocks with occasional use of sand stone
bricks, was found to be resting on wall-16 (see page-52, plate 24
29
and figure-5). Southern foundation wall-6 of disputed structure was
found, resting over two pillar bases of earlier period (pillar base No.
34, 35, plate No.30 and also see page 52 of Vol.1). This wall-6 had
three courses of clacrete blocks. It was taking turn at south-east
corner forming wall-7 of eastern side of southern chamber of
structure-3. Wall-7 in front of southern chamber of the disputed
structure-3, rested over three pillar bases of the earlier period (see
figure-6 of Vol.I). Width of this Wall-7 was 1.54 m with entrance to
southern chamber having a gap of 2.65 m. Wall-8 that is northern
wall of southern chamber of the disputed structure was 8.3 m. in
length with an entrance to central chamber. The ASI could not
probe into the site of central chamber, due to its close proximity to
makeshift temple of Ram Lalla.
6. Reference to other salient features of ASI Report, can
conveniently be made, by reproducing chapter X of Volume-I,
which not only describes the features referred to above but also
other such features which according to ASI, have some importance.
Chapter X, reads as under:-
Excavation at the deputed site of Rama Janmabhumi-Babri
Masjid was carried out by the Archaeological Survey of India from
12 March 2003 to 7 August 2003. During this period, as per the
directions of the Hon'ble High Court, Lucknow, 82 trenches were
excavated to verify the anomalies mentioned in the report of the
Ground Penetrating Radar Survey which was conducted at the site
prior to taking up the excavations. A total number of 82 trenches
along with some of their baulks were checked for anomalies and
anomaly alignments. The anomalies were confirmed in the trenches
in the form of pillar bases, structures floors and foundation though
no such remains were noticed in some of them at the stipulated
depths and spots. Besides the 82 trenches, a few more making a total
of 90 finally were also excavated keeping in view the objective fixed
by the Hon'ble High Court to confirm the structures.
The result of the excavation are summarized as hereunder:-
30
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 of 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 next in
the order of the cultural occupation at the site. The typical terracotta
mother goddess, human and animal figurines, beads, hairpin,
engraver etc. The stone and brick structure found from this 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,
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
31
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 for pranala, i.e, waterchute which is distinct feature of
contemporary temples already known from the Ganga-Yamuna plain.
Subsequently, during the early medieval period (eleventh-
twelfth century A.D.) a huge structure, nearly 50 m in 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 stencil cut foliage pattern 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.G.). 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 x 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 block stopped by
sandstone blocks were found. The pillar bases exposed during the
present excavation in northern and southern areas also give an idea
of the 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 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
32
in the make-shift structure. This area is roughly 15 x 15 m 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 sherds 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 sherds 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.
It is worthwhile to observe that the various structures exposed
right from the Sunga to Gupta period do not speak either about their
nature of 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 pottery, terracottas and
other objects of preceding periods, particularly of Period I (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
33
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 absence of habitational
structures such as house-complexes, 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 (Medieval-Sultanate level).
The site has also proved to be significant for taking back its
antiquarian remains for the first time to the middle of the thirteenth
century B.C. (1250 130 B.C.) on the analogy of the C14 dates. The
lowest deposit above the natural soil represents the NBPW period
and therefore the earliest remains may belong to the thirteenth
century B.C. Which is confirmed by two more consistent C14 dates
from the NBPW level (Period I), viz. 910 100 B.C. And 880 100
B.C.) These dates are from trench G&. 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 generally 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.
The Hon'ble High Court, in order to get sufficient
archaeological evidence on the issue involved whether there was
any temple/structure which was demolished and mosque was
constructed on the disputed site as stated on page 1 and further on
P. 5 of their order dated 5
th
March, 2003, had given directions to the
Archaeological Survey of India to excavate at the disputed site where
34
the GPR Survey has suggested evidence of anomalies which could be
structure, pillars, Foundation walls, slab flooring etc. which could be
confirmed by excavation. 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 up to 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 patterns, 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.
7. Volume-II contains photographs, (referred to as plates in the
report of 235 objects/finds such as Ram Chabutra (Plates No. 14,
15, 16, 17), makara Pranala (Plate No.23), Southern wall of
disputed structure resting over an earlier brick wall (Plate No.24),
North-South oriented wall with plastered inner face (Plate No.29),
Pillar-bases (Plate Nos. 35, 36, 37, 38, 42, 43, 44, 46, 47), a niche in
north-south oriented brick-wall (plate no.52), Excavated graves in
northern area (plate no. 58), partly damaged east facing brick built
circular shrine (plate No. 59), Chirenath brick Temple of Shrawasti
(plate no. 60), Ghata-shaped pit cut into large brick paving (plate
no.67), glazed-ware large bowl (plate no.72), Rechiseled lotus
medallion (plate no. 79), amalka stone (plate no.81), intact pillar
with ghata-pallava (plate no. 82), broken Jamb with semi-circular
pilaster (plate no. 85), architectural member with srivatsa motif
stone (plate no. 88) glazed tiles fragments, terracotta (plates no. 99,
100, 101,102), smiling human head terracotta (plate no. 120), coins
(plates no. 144 to 172), large amalaka shaped bead terracotta (plate
no. 188), votive tank terracotta (plate no. 224), Divine couple stone
(plate no. 235).
35
8. Main objections against the ASI report
The Sunni Central Board of Waqfs (plaintiff in O.O.S. No.4
of 1989) Mohd. Hashim (defendant No.5 in O.O.S. No.5 of 1989),
Mahmood Ahmad (plaintiff No.9 in O.O.S. No.4 of 1989) and
defendants No.6/1 & 6/2 in Suit No.3/1989 have filed separate
objections/additional objections contending inter alia that ASI report
should not form part of evidence and should be rejected out rightly
for the following reasons.
1. that the report is one sided and is greatly influenced by certain
preconceived theory or notions;
2. that ASI has adopted a biased and selective approach, as is
evident from the fact that importance and impact of presence of
several animal bones having cut marks, recovered from different
floor levels of the respective trenches, has purposely and designedly
been kept out of consideration and had the same been scientifically
studied and the result taken into consideration, it would have not
been possible for ASI to opine that things found were indicative of
remains which are distinctive features found associated with
temples of north India;
3. that in spite of clear cut directions of this Court to file all the
papers-documents relating to the excavation, the ASI not only
delayed the filing of certain relevant documents, but also destroyed
the notes prepared by it at the time of study/analysis of various
finds/architectural objects, which raises a grave doubt about the
veracity of report;
4. that while the names of the authors of chapter 1 to IX are
mentioned, but it is not known as to who authored chapter X
captioned summary of results and so the whole of Chapter X
deserves to be scored out from the report and cannot be allowed to
form part of the evidence;
5. that on complaint, this Court directed that Sri B.R. Mani
should not head the excavation team and in compliance of those
orders Sri Hari Manjhi was deputed to head the team, but it is not
36
know as to how Sri B.R. Mani continued his association with the
task of excavation and how he co-authored the report;
6. that periodization done by ASI in Chapter III captioned
stratigraphy and Chronology (pages 37 to 47 of Vol. 1) has no
scientific basis;
7. that in absence of concordance of different layers/floors of
respective trenches with each other, the basis of the report itself
becomes doubtful;
8. that the report is full of inconsistencies and discrepancies and
the conclusions therein appear to have been tailored to support a
particular theory;
9. that theory of existence of massive structure on wall-16 and
the 50 pillars, as shown in figure 23-B page 42-C of Volume I, is a
concoction and unacceptable for the reasons inter alia that there
were no pillar-bases and the same had no alignment with each other
nor were at the same level nor had capacity to support load bearing
pillars;
10. that theory of massive structure is totally ill-founded because
ASI report is silent on the point as to where were the remaining
three walls of that structure, if wall 16 was one of the walls;
11. that so called circular shrine (which according to ASI, had a
waterchute in the north and could be associated with Lord Shiva)
could also be a structure relating to Buddhism or Jainism, as
considering the thin passage and little diameter, it was not possible
for even a single person to enter and offer Abhishekha;
12. that ASI has, without any firm basis, characterized mutilated
stone sculpture (plates 235 of Vol. II of the report) as 'divine couple'
and appears to have invented it at some later stage, as reference to it
does not find in corresponding Site note-book or Day to Day
Register;
13. that pillar door jam, octagonal shaft of pillars, amalka, divine
couple stone with Srivatsa motif, lotus medallion, which ASI has
taken into consideration for saying that there were remains of
37
temple on the site in question, were of no significance as the same
has been recovered from debris;
14. that alleged Srivatsa (see Plate No. 88) could equally be
associated with Jainism and lotus with Buddhism and Islamic
religion;
15. that terracotta figurines (62 human & 131 animal) discovered
from different trenches, belonged to ancient period and had no
relevance;
16. that glazed-wares and glazed-tiles so recovered during the
course of excavation spoke against the theory of existence of temple
as all these were found below floor No.4 relating to Medieval
Sultanat period;
17. that in view of what has been written by S.K. Meermira in his
book Indian Pottery glazed tiles were proof of Muslim habitation;
18. that wall-16 had niches (mehrab) on the inner side which are
distinctive features of Islamic building and even if it is accepted that
the same existed prior to construction of Babri Masjid, the same
could have been a Idgah or Kanati (roofless mosque);
19. that no idol, or statue of any Hindu deity and no object of
Hindu worship was found on the site so as to entitle the ASI to say
that there were remains of existence of temple of north India;
20. that how the conclusions of ASI came in the Indian Express in
its issue of 13.8.2003, much before 22.08.2003, when the report was
filed in Court an that indicates that ASI tailored the report on the
lines given in S.P. Gupta's book titled Ayodhya Puratatva Evam
Itihas.
9. Nirmohi Akhara (defendant No.3 in O.O.S. No.3 of 1989)
filed its objection saying that some more area towards east of
trenches NO.G-2,G-3,G-4 & G-5 should have been excavated so as
to reach a correct conclusion. It however supports the ASI report.
10. The other side has also filed replies to these objections and
additional objections, saying that objections are for the sake of
objections and are not sufficient enough to reject the ASI report.
38
Rival contentions
11. The Court had the advantage of hearing Sri Sidharth Shanker
Ray, the learned Senior Advocate, Sri Z.Jilani, Sri Mustaq Ahmad
Siddiqui, Sri Abdul Mannan and Sri Irfan Ahmad, appearing for the
objectors, Sri Krishna Murti, the learned Senior Advocate, Sri R.L.
Verma, Sri Bireshwar Nath Dwivedi, Sri Madan Mohan Pandey, Sri
P.L. Mishra, Sri Ved Prakash and Km. Ranjana Agnihotri,
supporting the ASI Report.
12. Sri Sidharth Shanker Ray has argued that the ASI was asked
to excavate the site and report as to whether the disputed structure
was raised after demolishing any Hindu temple, but the ASI is silent
on the point of alleged demolition of Hindu temple and so the report
can not be said to be as per directions of the court and deserves to
be rejected. Sri Ray goes on to argue by referring to Kalhans Raj
Tarangini, written somewhere in 12
th
Century A.D., that a historian
desiring to peep into the bygone age mus keep a detached mind,
rather like a Judge, and must avoid both bias (Dwesh) and prejudice
(Raga). The learned counsel says that selective approach of ASI
would reveal that it could not keep itself detached and unbiased.
The learned counsel has also taken the Court through relevant pages
especially pages 142, 143 of Indian Archaeology in retrospect Vol.
IV Archaeology and Historiography edited by S. Settar Ravi
Korisettar so as to say that one needs to adopt a critical openness of
mind towards our pluralistic past and the present. Sri Ray has also
referred to Chapter XIII captioned The Evolution of the temple of
Indian Architecture (Buddhist and Hindu Periods) written by
PERCY BROWN, wherein the learned author says:
The principal architectural features of the temple are as
follows. Throughout the greater part of the country, the sanctuary as
a whole is know as the vimana, of which the upper and pyramidal or
tapering portion is called the sikhara, meaning tower or spite.
Inside the vimana is a small and generally dark chamber or cella for
the reception of the divine symbol. This cella is the garbha griha,
39
or womb-house and was entered by a doorway on its inner and
usually, eastern side. In front of the doorway was a pillared hall, or
mandapa, actually a pavilion for the assembly of those paying their
devotions to the divine symbol in the cella. Some of the earlier
temples indicate that the mandapa, was a detached building, isolated
from the sanctuary by a definite open space, as in the shore
temple at Mamallapuram, and originally in the Kailasanatha at
Conjeeveram, both near Madras, and built about 700 A.D. A little
later it became the custom to unite the two buildings, this forming
an intermediate chamber, or vestibule, and called the antarala.
Leading up to the main hall, or mandapa, is a porch or
ardhamandapa, while there may be a transept on each side of this
entral hall, known as the maha-mandapa. The most complete
illustrations of the fully formed and co-ordinated temple structure,
are the tenth century examples at Khajuraho, Central India,
especially that known as the Kandariya Mahadeo (Chapter XXII).
In this class of temple, each portion named above, has its separate
pyramidal roof, rising in regular gradation, from the lowest over the
porch (ardha-mandapa), to the lofty spire over the sanctum. In
some parts of the country it became the practice to enclose the
temple building within a rectangular courtyard by means of a
continuous range of cells, facing inwards, the whole forming a
substantial containing wall, and thus ensuring seclusion. One of the
first temples of combine all these attributions, and to present a
coordinated plan was that of the Vaikuntanath Perumal at
Conjeeveram (cir. A.D. 740). Most of these early temples have a
processional passage or pradak-shina patha consisting of an
enclosed corridor carried around the outside of the cella.
13. Sri Ray wonders as to how in absence of these architectural
features, ASI could opine about existence of temple of north India
and how it could conceive existence of a massive structure in
absence of other three walls, if wall-16 was one of the walls.
According to Sri Ray, the story of existence of pillar bases which
40
might have supported the pillar to bear the load of massive
structure, is totally ill-founded for the simple reason that one of the
pillar bases was having load bearing foundation nor was having
alignment with each other nor being at the same level of the floor.
He says that how is it that none of those alleged pillars said to have
supported the massive structure, was found on the spot. Sri Ray
says that alleged 'circular shrine' found in bulk of trench nos. E-8
and F-8, said to have been constructed in 10
th
century A.D., could
not have been associated with Lord Shiva and could be associated
with Lord Budha. Sri Ray goes on to argue that the passage was not
sufficient enough to allow even one person to enter inside it and so
the question of offering 'Abhishekh, could not have arisen. The
learned counsel says that so called Parnala is nothing, but a space
between the two rows of the bricks. According to Sri Ray, 'circular
shrine' could also be said to be Ton, used to constructed by Jains, for
commemorating Tirthankars. The learned counsel also contends that
ASI did not apply its mind in giving the report and has not exhibited
requisite reasonableness in terms of Wednesbury Principles, so
deserves to be rejected. Sri Ray characterizes the report as
intrinsically erroneous.
14. Sri Abdul Mannan, Sri Jilani, Sri M.A. Siddiqui and Sri Irfan
Ahmad have also contended that the report being one sided,
imaginative and unscientific and full of discrepancies, should not
form part of the record. They argue, firstly there is no firm basis of
say that western wall of disputed structure was resting on any pre-
existing wall and secondly, even if it is accepted for the sake of
argument that it was so, W-16 having niches could have been a
Idgah or roofless mosque, as the question of construction of a
temple after advent of Muslim Rule was unthinkable. They have
also attacked theory of pillar bases, massive structure etc. and have
criticized the ASI, for adopting partisan approach and in not
considering the importance of animal-bones, having cut marks. It is
argued that such a report must be rejected as placing it on record is
41
likely to create confusion and increase the volume of evidence.
The learned counsels have referred to certain judicial
pronouncements to support their contentions that if the report is ex-
facie absurd or unacceptable, has to be rejected before the Court
gives its final verdict in the matter and unless the objections are
considered and rejected, report can not be acted upon. We will deal
with these judicial pronouncements at appropriate stage.
15. Sri Krishnamurty, Sri Veereshwar Dwivedi, Sri R.L. Verma,
Sri M.M. Pandey, Sri Ved Prakash, Sri P.L. Misra and Km. Ranjana
Agnihotri have submitted that there is no provision under Order
XXVI of the Code, to reject the report of the commissioner and it
becomes evidence under sub-rule (2) of Rule 10 without any
express orders of the Court. Sri Krishnamurty has fairly conceded
that the report of the commissioner such as the report of ASI in this
case is not binding on the Court and has to be looked into in the
light of other evidence. What Sri Krishnamurty says is that ASI
report cannot be rejected simply on the ground of alleged bias,
prejudice, selective approach etc., that too without giving an
opportunity to ASI to explain its position. The learned counsel
argues that allegations against ASI are totally ill-founded and in fact
all possible transparency was observed as per directions of the Court
and nothing was concealed from the parties or their counsels. It is
argued that such a scientific investigation cannot be doubted on the
basis of layman view and only expert can be pressed into service, to
dispute the correctness of the contents of the report. The learned
counsels supporting the ASI report and disputing the tenability of
the objections against it, say that it has never been the case of
objectors that there existed any Idgah or roofless mosque, earlier to
the construction of disputed structure, and so they cannot say now
that wall-16 could have been a wall of Idgah or roofless mosque.
They say that no example of such roofless mosque or Idgah has
been cited in the objections. The learned counsels have pointed out
by referring to relevant portion of the Report and especially figure
42
3-B of volume-I, that there were found 17 rows of pillar-bases
having five in each of the rows and these had load bearing
foundation and so could have supported column based 'massive
structure' in conjunction with wall-16. According to them, the
objectors could not point out as to what architectural error the ASI
committed or which widely accepted mode or method of excavation
or analysis was violated by the ASI, in executing the task assigned
to it. They have highlighted the same points which have been relied
on by ASI for concluding that there were remains of temple on the
site of the disputed structure. They say that possibility of bones in
Hindu residences was not ruled out. The learned counsels have
referred to certain judicial pronouncements so as to say that such a
report cannot be rejected and must be looked into in the light of
other evidence and the objections of the parties concerned. Sri R.L.
Verma said some more area nearer to raised platform, should have
been excavated so as to make things more clear.
Discussion and conclusion:
16. In considering the question as to whether ASI report should
be rejected on the grounds raised in the objections or should the
same be kept on record as a piece of evidence subject to these
objections and evidence of the parties, this Court can not loose sight
of the following aspects of the matter. The first thing which this
Court would like to observe is that perhaps it was for the first time
that any Court of law, issued a commission under Order XXVI of
the Code, for investigation into a matter through a process of
excavation of such a vast area covering about 100 feet X 100 feet
area. The ASI itself says on page 9 of its report (see Vol. I) that in
its career of more than 100 years, it was its first experience to
execute a commission like this. The second aspect that we would
like to highlight is that task assigned to ASI was not such, which
could have been performed by a person or a body of persons, having
no expertise in the field of archaeology. In other words the
commission was not pure and simple under rule 9 of Order XXVI,
43
but also one under Rule 10-A. Another important feature of this
commission is that the work assigned to ASI, was not only gigantic
from the point of view of its volume, but was also otherwise
sensitive. The enormity of the task can be gauged from the fact that
team of more than a dozen officials of the department assisted by a
number of labourers, took about five months in carrying out the
excavation part and during this process dug as many as 90 trenches,
ranging from 0.50 finds/archaeological objects. We were told
during the course of arguments and rightly, so that once an area is
subjected to such excavation, the second such exercise in the same
area, is practically ruled out as the original position stands
disturbed. This practical aspect has to be kept in mind, as no fresh
commission for the same purpose is possible.
17. We do not find it necessary to refer to any judicial
pronouncement on the point that commissioner's report under Rule
10 or 10-A of Order XXVI of the Code even if allowed to be a piece
of evidence, is not binding on the court and its weight and
evidentiary value is to be evaluated in the light of other evidence on
record. Sri Krishnamurty has pointed out that provisions contained
under Rules, 9,10 and 10-A of Order XXVI, do not envisage express
orders of the court, for confirming or rejecting the report or for
keeping it on record and according to sub-Rule (2) of Rule 10, it
becomes evidence in the case without any orders of the Court. Some
what similar views were echoed by a Division Bench of this Court
in State of U.P. Vs. Smt. Ramshri and another AIR 1976 Allahabad,
page 121. But Sri Krishnamurty was fair enough to concede that if
Commissioner's report was absurd on the very face or was
unacceptable on account of apparent flaw, the Court could refuse to
treat it as evidence or to take it on record, in spite of the plain
language of sub-rule (2) of Rule 10. The point can be more
elaborated by giving one or two examples. Suppose a court issues a
commission under rule 9, for investigating the matter relating to
property 'A' and the commissioner files report about property 'B',
44
should not the court reject such a report? In an another case, a court
asks the commissioner to prepare a survey map, and to report
whether the disputed well situate in plot 'A' or 'B' and the
commissioner prepares the survey map, with the help of disputed or
unauthenticated settlement or municipal map or without taking any
fixed points, should the court treat such a report and map as
evidence in the case and thereby deprive itself of having assistance
of a accurate survey map, in deciding the point in issue. What we
want to say is that sub-rule (1) of Rule 10 should not be dissected or
isolated from sub-rule (3) which indirectly hints at rejection of such
a report, when it says 'where the court is for any reason dissatisfied
with the proceedings of the commissioner, it may direct such further
enquiry to be made as it thinks fit.' The observations of Privy
Council, as made in Chandan Mall Vs. Chiman Lal AIR 1940 P.C.
Page-3 and as construed by two learned Judges of this Court in
Order dated 8.8.1991, passed in these very suits, also speak to the
effect that where defects in the report are substantial and go to the
root of the matter, it may be rejected, but where the defects are such
that can be explained at the trial, it may be kept on record subject to
the objections and evidence of the parties.
18. Relying on Parag Tools Corporation Ltd. Vs. Mahboobunissa
Begum (Smt.) and others (2001) 6 SCC 238, Amarnath Tandon Vs.
G.K. Bhargava LCD 1987 65, Harbans Lal Vs. Jagmohan Saran
LCD 1986 (4) SC 235, Harbhajan Singh Vs. Smt. Shakuntala Devi
Sharma and another AIR 1976 Delhi 175, Rajender and Co. Vs.
Union of India and others (2000) 6 SCC 506 and Gopal Behar and
others Vs. Lokanath Sahu and others AIR 1991 Orissa page-6, Sri
S.S. Ray and other learned counsels appearing in support of the
objections, have argued that unless the objections are rejected, the
ASI report cannot form part of the record and the same cannot be
treated as evidence, deferring the consideration of their objections to
be decided in the light of other evidence. With due respect to the
learned counsels, we find nothing in these cases, laying down that
45
the objections against the commissioner's report should necessarily
be accepted or rejected, before the conclusion of the trial of the
suits. What the learned Judges have said in these cases is that the
commissioner's report cannot be acted upon without first
considering the objections against it. Parag Tools Corporation's
case (supra) was not directly on the point. There the Apex Court
remitted the matter to the commissioner for recording a finding on
certain points. The authority issued a survey commission and
recorded a finding, taking into account the report of the
Commissioner. The State of Andhra Pradesh contended before the
Apex Court that it was not within the scope of reference to issue a
commission, but the Court was not impressed by this argument. In
Harbans Lal's case (supra) the facts were that in proceedings under
U.P. Act No. 13 of 1972, the Prescribed Authority as well as the
learned Addl. District Judge, recorded a finding of fact, ignoring the
report of commissioner against which objections were there. In a
writ petition, the High Court considered the same and upset the
finding of fact so recorded by the Prescribed Authority. On matter
being taken to the Apex Court, their Lordships said firstly the High
Court should not have upset the finding of fact in exercise of its writ
jurisdiction and secondly the report of the commissioner should not
have been treated final, when objections against the same were
pending. In Amarnath Tandon's case, a learned Single Judge of this
Court (as his Lordship then was), though based his decision on
Harbans Lal's case, went a step ahead in observing in para-12 that
report of the commissioner becomes final only when it is confirmed
by the court. We think those observations were made in the peculiar
facts and circumstances of that case and cannot be construed as
laying down a law that the report and objections against it cannot be
dealt with at the time of final disposal f the matter. Likewise in
Harbhajan Singh's case (supra) a learned Single Judge was not
considering the question as to when the report and objections
against it, should be dealt with. What his Lordship said was that
46
report of the commissioner should not have been acted upon without
first dealing with the objections against it. In Rajinder & Co.
(supra) the Apex Court left the report to be dealt with by the
authority concerned in the light of respective contentions, Gopal
Behar's case (supra) related to a survey report. A learned Single
Judge of Orissa High Court (D.P. Mahapatra J., as his Lordship then
was), said that the report of the commissioner was simply and item
of evidence and was to be considered along with other evidence in
the case, with the observations that if the same was full of errors of
serious discrepancies, it would not be safe to act upon it.
19. So, none of the above mentioned cases cited by the learned
counsels for the objectors, is an authority to support the proposition
that commissioner's report and objections against it, must
necessarily be accepted or rejected, before the final verdict in the
suit is pronounced and the same cannot be left to be decided along
with other evidence.
20. We have no hesitation in saying even at the cost of repetition
hat it all depends on the facts and circumstances of the case
concerned, as to whether objections against commissioner's report
can suitably be dealt with, before the suit goes for judgement or
deserve to be dealt with, at the time of final disposal in the light of
other evidence. Take for an example, survey report and map and the
objections against it. Such type of report and the objections against
it, can conveniently be dealt with them and there, as the matter may
simply be confined to accuracy of fixed points, measurements,
conformity of the map with field book etc. and no factual
determination is necessitated. But cases where the commissioner's
report relates to disputed facts, it may not be practicable for the
court to accept or reject, except in the light of other acceptable
material on record. Such report and the objections against the same
are invariably dealt with and accepted or rejected in the light of
other evidence on record.
21. As observed earlier, ASI report is also a report under Rule 10-
47
A of Order XXVI, that is to say it is a kind of report submitted after
a scientific investigation. The excavation, periodization of various
floor levels of the respective trenches on the basis of figurines, the
material found in the respective layers, archaeological importance
of such finds/objects etc., is an expert work and is not a layman's
job, which could be performed by anybody. Whether a particular
structure found at floor level 3 or 4 was a 'shrine' associated with
Lord Shiva as described by ASI or whether the same could also be
associated with Buddhism or Jainism or whether so called pillar
bases, were really the pillar bases and were having load bearing
material or whether wall 16 said to have been constructed at the end
of 12
th
century A.D., was the wall of alleged massive structure or
was Idgah wall or roofless mosque or whether the objects/finds like
Srivatsa, Amalka, door jamb, referred to in Chapter X of Vol. I, have
any relevance, are the matters which cannot be decided here and
now and can be decided only in the light of other evidence on
record or that may be brought on record.
22. No doubt, the objections taken against the report have to be
considered before ASI report is acted upon. But that situation will
arise only when the Court decides the matter finally. It would also
not be advisable nor expedient to make any comments at this stage
as regards the tenability or otherwise of the objections. Whether the
report is biased or one sided or suffers from discrepancies or
infirmities, or is unacceptable on account of rough notes having
been destroyed, delay being caused in placing of the documents
before the Court or for any other reasons stated in the objections,
has to be considered along with the rest of the evidence that has
been brought on record or that may be brought on record. We are of
the considered view that this is not proper stage to pronounce on
those points. Whether analysis of animal bones and its result was
material for giving any opinion as to existence or non-existence of
any temple or Hindu temple, is also an aspect which has to be kept
in mind when evidentiary value of this report is considered.
48
Whatever was found in the respective trenches is there, photographs
video-graphs are there and this Court will have an occasion to
consider all those things in the light of other evidence.
23. So we order that this ASI report shall be subject to the
objections and evidence of the parties in the suit and all this shall be
dealt with when the matter is finally decided.
Feb. 03, 2005
GHF/-
49
C.M. Application No. 25(O) of 2006
In Re:
O. O. S. No. 5 of 1989
Bhagwan Sri Ram Lala Virajman & others ....... Plaintiffs
Versus
Rajendra Singh and others .......... Defendants
And
C.M. Application No. 27 (O) of 2006
In Re:
O.O. S. No. 5 of 1989
Bhagwan Sri Ram Lala Virajman & others ....... Plaintiffs
Versus
Rajendra Singh and others .......... Defendants
-------------
Hon'ble S. R. Alam J.
Hon'ble Bhanwar Singh, J.
Hon'ble O.P. Srivastava, J.
Dr. Bhuwan Vikaram was one of the members of excavation
team, which carried out excavation at the disputed site under the
orders of the Court. He had also joined other excavators in
preparing the two chapters of the report.
On prayer of the plaintiff of O.O.S. No. 5 of 1989, Dr.
Bhuwan Vikram was summoned to appear as witness before this
Court. In response to the summons issued to him, he has moved an
application being No.25 (O) of 2006 expressing his desire to appear
as court witness instead of a witness of any party to the suit for the
reason that the excavation was carried out under the orders of the
Court.
Learned counsel for the opposite parties no. 4, 6 and 26 of the
O.O.S. No. 5 of 1989 has field objections against the application of
Dr. Bhuwan Vikram.
Plaintiff of O.O.S. No. 5 of 1989 at whose behest Dr. Bhuwan
Vikram has been summoned as witness has also moved an
application No. 27 (O) of 2006 consenting to the request of Dr.
Bhuwan Vikram for permission to appear as court witness.
Learned counsel for the parties, namely, Sri Ravi P. Mehrotra
50
on application of Dr. Bhuwan Vikram, Sri Z. Jilani on objections
and Sri Ved Prakash on application of plaintiff of O.O.S. No. 5 of
1989 have been heard and since common questions are involved in
all the applications, we, with the consent of all the counsel named
above, are disposing of the said application by this common order.
As it appears from the subject involved precisely two
questions arise:- firstly whether Dr. Bhuwan Vikram be permitted to
appear as witness of the plaintiff of O.O.S. No. 5 of 1989
summoned in the case and secondly, whether he be asked to appear
as court witness.
So far as the first question is concerned, Dr. Bhuwan Vikram
has expressed his unwillingness to appear as witness to any of the
parties to the suit for the reason that he was a member to the
excavation team which was conducting excavation under the orders
of the Court and not at the behest of any party. The plaintiff of
O.O.S. No. 5 of 1989 has not said anything in regard to this prayer
of Dr. Bhuwan Vikram, instead he has also prayed that Dr. Bhuwan
be called to appears as court witness. Absence of any objection to
the prayer of Dr. Bhuwan Vikram in this regard and the silence in
regard to the prayer of plaintiff requiring Dr. Bhuwan Vikram to
appear as its witness leads, to the presumption as may be drawn by
us that in view of the reason stated by Dr. Bhuwan Vikram, the
plaintiff is now not willing to examine him as his witness.
Therefore, there appears implied consent to exempt/discharge Dr.
Bhuwan Vikram from appearing as witness of the above plaintiff.
We are, therefore, inclined to accept the prayer of Dr. Bhuwan
Vikram so far as this part of this prayer is concerned. He need not
appear as witness of the plaintiff of O.O.S. No. 5 of 1989 as
summoned.
As regards the other part of the issue, namely, his examination
as court witness, it may be observed that it cannot be allowed for the
reason that it is for the Court to take decision at the appropriate
stage as to who should be examined as court's witness or not.
51
Therefore, it would be open for this Court to take decision at the
appropriate stage as to who should be called upon to be examined
from amongst the members of the excavating team of the ASI.
In view of the above, we hereby exempt Dr. Bhuwan Vikram
from appearing as witness of plaintiff of O.O.S. No. 5 of 1989.
With the above observations, applications and objections
against the application of Dr. Bhuwan Vkram stand disposed of.
4.12.2006
Sanjay/- Sd/- S.R. Alam
Sd/- Bhanwar Singh
Sd/- O.P. Srivastava
4.12.2006.
52
IN THE HON'BLE HIGH COURT OF JUDICATURE OF
ALLAHABAD LUCKNOW BENCH, LUCKNOW
C.M.Application No.107 (O) of 2003
Sunni Central Board of Waqfs, U.P. Plaintiff No.1 Objector
In Re:
O.O.S. No.4 of 1989
Sunni Central Board of Waqfs, U.P. and others ..Plaintiffs
Versus
Gopal Singh Visharad (now dead) and others Defendants
OBJECTION AGAINST THE REPORT OF
ARCHAEOLOGICAL SURVEY OF INDIA FILED ON
22.8.2003
The plaintiff No.1- Sunni Central Board of Waqfs, U.P. begs to submits as
under:-
1. That the A.S.I. report has been prepared with a prejudiced
mind and with one sided presentation of evidence. Although
the A.S.I. Team was fully aware of the fact that a mosque
known as the Babri Masjid stood at the site, but in the repot,
almost invariably, it has been referred to as the Disputed
Structure e.g. on pages 15,16,17,48,51,54 and on many other
pages. It is surprising that the A.S.I., which has already
described the disputed structure in its earlier publications as
Babri Masjid, was reluctant to describe the same as Babri
Masjid in its report under objection. Had the report been
given without any pressure of the B.J.P. Govt. at the Centre,
the A.S.I. would have referred to the structure, which stood
before 06-12-1992, as Babri Masjid or atleast as Masjid or
mosque. On the other hand, the A.S.I. has frequently used the
word Ram Chabutra for describing the platform that existed
in the outer courtyard of the mosque.
53
2. That the platform in the outer courtyard of the mosque
described as Ram Chabutra by the A.S.I., was considered to
be a water tank at some stage (P.49) and the report describes
the squarish masonary platform of 1.50 x 1.55 m. found there
to have been the earliest form of the Ram Chabutra, allegedly
matching with the description of Vedi (Bedi) said to have
been given by the Austrian traveller, Joseph Tiefenthaler, who
visited the site around 1766-71and whose account was
published in Latin and translated in French in 1786. This
reference has been given without consulting the original Latin
book or its translation in French but relying upon the
unauthentic version of the same contained in the book written
by Koenraad Elst, published in 1990 (Ram Janmabhoomi Vs.
Babri Masjid). Without verifying the correctness of the said
reference, the A.S.I. should not have relied upon the same in
its report and specially so when the Book of Koenraad Elst
was neither the work of any Archaeologist and nor was an
authentic or reliable Book of History but rather the Author of
the same had quoted some Mr. Abhas Kumar Chaterjee from
his article published in India Express dated 26-3-90.
3. That the so called restraints/constraints, during the
excavations, referred in the report regarding excavation of 90
trenches in a limited time of 5 months (P.9 to 10), have been
exaggerated and the description about the time available for
documentation, study, photography, drawing and chemical
preservation etc. could also not be said to be limited to just a
few hours. In fact the court had granted the A.S.I. extra time
for this purpose and there was ample time for documentation
and study and if any more time was required, the same should
have been applied for, instead of making complaint about the
alleged shortage of time in the report.
54
4. ARCHAEOLOGICAL EVIDENCE OF MASSIVE
STRUCTURE:-
4.1. That the theory of a so called massive structure below
Babri Masjid (P.54), given by the A.S.I., is based mainly
upon nearly 50 m long wall (wall 16) in the west and the
dumps of brick bats which it claims to be pillar bases, to its
east. According to the A.S.I. they found 17 rows of the so
called pillar bases from North to South; each row having 5
pillar bases while actually they have referred to 50 only, out
of which only 12 were said to be completely exposed, 35
were said to be partially exposed and 3 could be traced in
section only. The A.S.I. also asserts that the central part of
the pillared structure was important and special treatment was
given to its architectural planning. The A.S.I. also claims that
the so-called pillar bases found in these excavations have
settled the controversy regarding association of these so
called pillar bases with different layers and load bearing
capacity while the report fails to give any details about the
actual regular layers and accurate depth of all these so called
pillar bases. The remarks of the A.S.I. about the central part
of the pillared structure also seem to be without any evidence.
On what basis the A.S.I. is saying that this part was important
and special treatment was given to it in architectural planning,
is also not evident from the report.
4.2. That the A.S.I. failed to take into account that any medieval
temple in classical style would be expected to have a Central
portion with thick internal walls to support a high
superstructure like a Shikhara, while the Key Plan of
Structures shows, in H1, two lengths of a narrow wall or two
walls, each less than a metre long, with a gap of about 70 cm.
between them. No further information is given to convince
us that there is an exposed entrance as stated on P.69.
4.3. That the A.S.I. Report itself describes traces of inner walls
55
having a width of 0.48 m to 0.55 m, attached with the earliest
activities along with wall 16. These internal walls not only
appear to be narrow and not more than two or three brick
courses high, but also consisting of brickbats only. They are
plastered over the sides and upper surface and it is difficult to
infer that they were load bearing walls:
4.4. That regarding the said wall 16, an unexplained anomaly is
that from the inner side its first phase of 10 courses is said to
be plastered while on the exterior side plaster was provided in
the second phase of its raising (four courses).
4.5. That no single example is offered by the A.S.I. of any temple
of pre-Moghal times having such a lime- Surkhi floor, though
one would think that this is an essential requirement when a
purely Muslim structure is being appropriated as a Hindu one.
Once this appropriation has occurred (page 41), we are then
asked to imagine a Massive Structure Below the Disputed
Structure, the massive structure being a temple. It is
supposed to have stood upon 50 pillars, and by fanciful
drawings (Figures 23, 23A and 23B), it has been
reconstructed. [Though one may still feel that if was hardly
massive when one compares Figure 23 (showing Babri
Masjid before demolition) and Figure 23B (showing the
reconstructed temple with 50 imaginary pillars!)] Now,
according to the A.S.I.s Report, this massive structure with
bases of 46 of its alleged 50 pillars now exposed, was built
in Period VII, the Period of the Delhi Sultans, Sharqi rulers
and Lodi Sultans (1206-1526): This attribution of the alleged
Grand Temple, to the Muslim period is not by choice, but
because of the presence of Muslim style materials and
techniques all through. This given the distorted view of
medieval Indian history, must have been a bitter pill for the
A.S.I.s, mentors to swallow; and, therefore, there has been
all the more reason for them to imagine a still earlier structure
56
assignable to an earlier time. Of this structure, however, only
four alleged pillar bases, with foundations attached to
Floor 4, have been found; and it is astonishing that this should
be sufficient to ascribe them to 10
th
-11
th
century and to
assume that they all belong to one structure. That structure is
proclaimed as huge, extending nearly 50 metres that
separate the pillar-bases at the extremes. Four pillar
bases can hardly have held such a long roof; and if any one
tried it on them it is not surprising that the result was short-
lived (report, p. 269). All of this seems a regular part of the
Mandir propagandist archaeology rather than a report from a
body called the Archaeological Survey of India.
4.6. That the four alleged pillar bases dated to 11
th
-12
th
centuries
are said to belong to this level with a brick crush floor.
This amounts to a totally unsubstantiated claim that surkhi
was used in the region in Gahadavala times (11
th
12
th
centuries). No examples are preditably offered. One would
have though that Sravasti (Dist. Bahraich), from which the
A.S.I. team has produced a linga-centred Shavite circular
shrine of the said period for comparison with the so-called
circular shrine at the Babri Masjid site, would be able to
produce a single example of either surkhi or lime mortar from
the Gahadavala-period structures at Sravasti. But such has
not at all been the case. One can see now why it had been
necessary to call this period (Period V) Medieval-Sultanate
(p. 40) though it is actually claimed to be pre-Sultanate, being
dated 11
th
-12
th
century. By clubbing together the Gahadavalas
with the sultanate, the surkhi is sought to be explained away;
but if so, the huge structure too must come to a time after
1206, for the Delhi Sultanate was only established in that
year. And so, to go by A.S.I.s reasoning, the earlier allegedly
huge temple too must have been built when the Sultans
ruled!
57
4.7. That the way the A.S.I. has distorted evidence to suit its
temple theory is shown by its treatment of the mihrab (arched
recess) and taq (niche) found in the western wall, which it
turns into features of its imagined temple. The absurdity of
this is self evident and particularly so when the inner walls of
the niche are also found plastered, and the A.S.I. is able to
produce no example of similar recess and niche from any
temple.
4.8. That the structure denoted by wall 17 and a brick Crush floor
in Period VI has not been allotted any number by the A.S.I.
and the A.S.I.s claims about the attribution of the walls and
floors of Periods VI and VII to two successive temple
structures cannot be accepted. The A.S.I.s report in this
respect also is full of contradictions and other infirmities.
4.9. That the reason why would the western wall be so massive
(1.77 m) and the other walls so thin (0.48-0.55) is quite
obvious. It should be noted that Wall 17 also was 1.86 m
wide. Such wide western walls are a feature of mosque
construction and not of temples. Temple walls, in fact, are of
uniform thickness. If, as the A.S.I. points out, the Babri
Masjid used this Wall 16 as a foundation for its western wall,
then this Wall 16 can only have been the foundation of the
Babri Masjid itself. Moreover, no Hindu temple has a long
continuously straight western wall-this is only a feature of the
mosque in India. In the case of a temple, a plinth or raised
platform would be required and the walls would be broken by
offsets, providing a cruciform plan to the temple form.
Moreover, the temple would have mandapas in front of the
grabagriha (the sanctum sanctorum) and any at the side of the
latter would be very small and insignificant in nature.
According to Krishna Deva, the main compartments of the
temple are axially articulated. (See temples of India by
Krishna Dewa, 1995, Vol. I) In this case, as being suggested
58
by the A.S.I., the central area now under the makeshift
structure was the garbagriha and hence if so, the rest of the
temple structure should have mainly projected towards the
east, and not to such an extent to the north and south (as in
Fig. 23A or 23B). The kind of structure as indicated in
Fig.23B indicates the pre-eminence of the western wall which
can only be the case in a mosque.
4.10. That the foundation of the Babri Masjid has some decorated
stone blocks along with plain sandstone and calcrete blocks
and bricks. This is natural in the construction of a foundation
where any available motley material would be used, ass the
foundation would not be visible. it has been pointed out by
the A.S.I. (pp. 68, 269-70) that material from the structure
associated with Wall 17, was reused to make Wall 16.
However, if this had been the case, decorated blocks would
have been used for the upper portions of walls rather than in
the foundation. To corroborate their statement of the reuse of
decorated blocks, the A.S.I. gives the example of the
Dharmachakrajina vihara of kumaradevi of the 12
th
century
A.D. at Sarnath. However, as can be seen in Plates 27-28,
decorated blocks were used not for the foundations but in the
enclosure wall of a vihara. Moreover, this structure was a
vihara and cannot in any way be compared with a Hindu
temple.
4.11. That it can also be pointed out here that Krishna Deva
mentions (on P.11) that a temple customarily has a
vedibandha consisting of moulded course. Even if the
southern part of Wall 16 has not been excavated on its outer
face to indicate the presence or absence of mouldings, we
have the evidence of the outer face of Wall 16 in Trench ZE1,
to the north , where no mouldings are to be seen. This kind of
a plain wall with nothing but niches on its inner face can only
be a mosque/Eidgah wall.
59
4.12. That On p.68 are described two niches in the inner side of
Wall 16 at an interval of 4.60 m in trenches E6 and E7. These
were 0.20 m deep and 1 m wide. A similar niche was found
in Trench ZE2 in the northern area and these have been
attributed to the first phase of construction of the so called
massive structure associated with Wall 16. Such niches
along the inner face of a western wall, are again characteristic
of mosque/ Eidgah construction. Moreover, the inner walls of
the niche are also plastered (as in Plate 49) which indicates
that the plaster was meant to be visible. A temple niche (and
if found, would be on the outer wall) would not be plastered
if it were to hold a sculpture or a relief. In the first phase of
construction, the supposed massive structure was confined to
the thin wall found in Trenches ZE1-ZE1 in the north and E6-
H5/H6 in the south (p. 41). How then does one explain the
location of niches outside the floor area of the said massive
structure? This is typical of a mosque, which has a long, wide
north-south wall, with niches at intervals on its inner face and
there may be a small covered area in the center. Which would
have narrow demarcating walls.
4.13. That according to the A.S.I. (p. 42), the massive structure in
sub-period B collapsed and its debris of brick and stone was
levelled to attain height. In this deposit, foundations to
support pillars or columns were sunk which were overlaid
with a 4-5 cm thick floor, which had a grid of square
sandstone bases for pillars projecting out, only a few still
survive.
If, as implied, the structure of sub-period B had collapsed and
another floor constructed with another set of pillar bases, then these
are not phases of construction of a structure but three separate
structures. What is perhaps a more plausible explanation is that in
the beginning of the 13
th
century, some Muslim structure was built
with a well-polished lime-surkhi floor. There was a low enclosure
60
wall (0.40-0.50 m wide) demarcating the area from E6 to ZE! And
extending east to the H series of trenches. Within this enclosure
was probably a small central covered area of which the northern
wall with a niche can be seen in Trench F2. This wall was narrower
(0.35-40 m) thick. Probably this was wall structure only as can be
seen by the narrow walls with no deep foundation. When this
collapsed, the entire area was filled in with brickbats, stone slabs,
calcrete blocks, brick nodules and mud to raise the level in order to
construct the next lime-surkhi floor. This floor probably now
functioned as an Eidgah or so as no structural activity has been
observed in association. when this floor was degraded, another
floor was raised, both floors being of poor quality.
4.14. That wall recesses or niches are observed in the
mosque/Eidgah structure in a higher stratum also (P. 53) but
the report fails to discuss about the same.
5. THE MYTH OF SO CALLED PILLAR BASES:-
5.1. That the so called pillar bases are one or more calcrete stones
resting upon brickbats, just heaped up, though A.S.I. claims
that mud-mortar was also sometimes used. In many of them
the calcrete stones are also not found at all. As one can see
from the descriptive table on pages 56-57 of the Report not a
single one of these supposed pillar bases has been found in
association with any pillar or even a fragment of it; and it has
not been claimed that there are any marks or indentations or
hollows on any of the calcrete stones to show that any pillar
had rested on them. The A.S.I. Report nowhere attempts to
answer the question (1) why brickbats and not bricks were
used at the base, and (2) how mud-bonded brickbats could
have possible withstood the weight of roof-supporting pillars
without themselves falling apart. It also offers not a single
example of any medieval temple where pillars stood on such
brick bat bases.
61
1. That the Reports claim of these so called pillar bases
being in alignment and their being so shown in infancy
drawings (Figures 23, 23A and 23B), is not borne out by the
actual measurements and distances, and there is indeed much
doubt whether the plan provided by A.S.I. is drawn accurately
at all, since there are enormous discrepancies between Fig.
3A (the main plan) and the Table in Chapter IV on the one
hand, and the Reports Appendix IV, on the other.
2. That even those pillar bases that lie in the first north-
south row on the west, lie at different distances from thick
western wall: the distances varying between 3.60 and 3.86 m.
The east-west distance between any two features (center to
center) can vary from 2.9 to 3.3 m (a difference of 40 cm) (p.
55) whereas in the north-south direction there is greater
variation between each feature and its neighbour: 3- 3.3 m in
the north and in the south, and about 5.25 m in the central
area. The use of the term rows, therefore, is incorrect.
3. That the entire manner, in which the A.S.I. has identified
or created the so called pillar-bases is a matter of serious
concern. Complaints were regularly made to the Observers
appointed by the High Court that the A.S.I. was ignoring
calcrete-topped brickbat heaps where these were not found in
appropriate positions and selected only such brickbat heaps as
were not too far-off from its imaginary grids, and there
creating the so called bases by clearing the rest of the floor
of brick-bats. In this respect reference may be made to the
complaints dated 21-5-2003, 7-6-2003, 28-6-2003, 26-7-2003
and 2-8-2003 etc.
5.5. That the most astonishing thing, that the A.S.I. so casually
62
brushes aside, relates to the varying levels at which the so
called pillar-bases stand. Even if we go by the A.S.I.s own
descriptive able (pages 56-67), as many as seven of these so
called 50 bases are definitely above Floor 2, and one is in
level with it. At least six rest on Floor 3, and one rests partly
on Floor 3 and 4. Since at least Floors 1 to 3 are even
recognised by the A.S.I. to be floors of the Mosque, how can
so many pillars be said to have been erected after the Mosque
had been built, in order to sustain a so called earlier temple
structure! Moreover, as many as nine so called pillar bases
are shown as cutting through Floor No.3. So, are we to
presume that when the Mosque floor was laid out, the so
called pillar bases were not floored over? It is thus clear
that the said structures are simply not pillar bases at all, but
some kind of loosely-bonded brickbat deposits, which
continued to be laid right from the time of Floor 4 to Floor 1.
5.6. That the comparative stratigraphy of these 50 alleged bases
also requires comment. The tabulation on p.p. 56 to 67 gives us the
following data:-
2 bases (nos. 16, 26) were cut through Floor 4.
25 of them (from the Z-trenches in the north to the G
10 and H 10 trenches in the south) rested on Floor 4.
6 of them on Floor 3 (nos. 19,21,23,24,30,37).
1 (no. 28) actually is said to rest at the junction of
Floor 3 and 4
2 of them cut through Floor 3 (nos. 12 , 15)
7 of them project above Floor 2 (nos. 1,2,3,5.7,8 and
14).
We thus see that these 50 features belong to different floors
and therefore could not all have been functional at the same time.
They lack coherence as architectural features. It is irresponsible,
therefore, to repeatedly refer to rows of these features, as has been
63
done in the report.
Some o these features appear to incorporate all sorts of
material: pieces of brick, small stones and brick pieces, long stone
slabs, and D-shaped large stones, etc. This also leads to the
inference that all these structures could not belong to any one
period.
5.7. That even the table on pages 56-67 o the A.S.I.s Report may
not correctly represent the layers of the alleged pillar bases, since its
information on floors does not match that of the Reports Appendix
IV, which in several trenches does not attest to Floor No. 4 at all,
which the said pillar-bases, in many cases, are supposed to have
been sealed by, or to have cut through or stand on!
5.8. The most of these so called pillar bases of the northern side
comprise of square sandstone slabs, perhaps resting on
calcrete blocks (only one has been excavated that reveals the
calcrete block). The inner dimensions of these pillar bases
range from 48.5 x 43, 50 x 50, 47 x 46, 48 x 56, 49.5 x 49
and 51 x 51 cm. These dimensions are completely different
from those of the pillars that have actually been recovered.
The dimensions of the latte range from 21 x 21 to 24 x 24 cm.
Thus, the pillars that could be said to have stood on the said
northern pillar bases would certainly not be the blackstone
pillars, used in the mosque, or any other pillars of the same or
similar type.
5.9. That the A.S.I.s assumption is that the floor, with which are
associated these so called pillar bases in the north, is the same
as Floor 2 in the south. However, it cannot be definitely said
that the floors in E2, F2 or G2can be easily correlated with
E1,F1 or G1 or with ZF! or ZG1.
64
5.10. That the A.S.I.s own information on the said pillar bases is
highly confusing and marked with discrepancies. For
example, in the tabulation of so called pillar bases in Chapter
IV, 50 pillar bases have been described and have been
illustrated in Fig. 3A. The number and the location of these
pillar bases, however, do not tally with information given in
Appendix IV as illustrated in the following Table:-
..
5.11. That, two pillar bases are mentioned in H5, H10, G10 and
ZH1 whereas only one in these trenches have been illustrated
and described in the text. Pillar bases in the L series of
trenches and J2 have not been indicated in the Tabulation as
illustrated above.
5.12. That on p. 55, distances between pillar bases have been
given, that in the east-west direction, center-to Centre
distance was 2.90-3.30 m. However, the distance between
pillar bases 37 and 38 is 3.80 m. Similarly, these are not
always in alignment as is the case with pillar base 30 in
Trench G6. Pillar bases 37 and 38 in Trench F8 are also not
in alignment with each other.
5.13. That the dubious nature of the pillar bases is illustrated by
the figures attached with the complaints. The collection of
calcrete and brickbats at a lower level than the above has
been ignored by the A.S.I. even though it resembles their so
called pillar bases. At times, walls were cut to make pillar
bases as in Trench F6. The confusion between walls and
pillar bases is apparent in Trenches E1 and E2. The same is
the case with pillar base 27 in Trench H5. This is nothing
65
but the southern part of Wall 18B.
5.14. That more serious problem has been created by giving Figs.
23A and 23B, showing the pillar bases hypothetically. An
incorrect impression is being created, by showing some
pillar bases where no structure was exposed at all and where
no excavation was also done.
5.15. That there is an additional problem with the pillar base
interpretation. Load carrying pillar bases require to rest on
hard and resistant surfaces, on floor slabs or rammed floors of
say 30 to 40 cm height, or else to be set into or enclosed in
pits that are packed tight with filled material. The various
sections in the report indicate that this is not the case (see,
e.g., Figures 8,9,10 where the features appear to have only
been set without packing into the ground, and interrupt the
continuity of Floor 2, which is only a few entimeters thick,
and les over a stratum not said to be homogeneous earth
filling, or of rammed earth. Thus the very use of the words
rows and bases is incorrect and misleading. These
features could in some cases represent a pile of unused bricks,
broken or entire. In other cases, they may have been used to
fill hollows or to raise the level of the mound. In yet other
cases they could have been used to shore up a heavy wall or
else to function as an apron for a building.
5.16. That the A.S.I. should have surely looked about for other
explanations of these heaps of brickbats, before jumping to its
so called pillar base theory. There was another clear and
elegant explanation when the surkhi-lime mortar bonded
Floor No.4 was being laid out over the mound, sometime
during the Sultanate period, its builders must have had to
level the mound properly. The hollows and depressions then
66
had to be filled by brickbats topped by calcrete stones (the
latter often joined with lime mortar) to fill them and enable
the floor to be laid. When in time Floor 4 went out of repair,
its holes had similarly to be filled up in order to lay out Floor
3. And so again when Floor 3 decayed, similar deposits of
brickbats had to be made to fill the holes in order to lay out
Floor 2 (or, indeed, just to have a level surface). This
explains why the so called pillar bases appear to cut
through both Floors 3 and 4, at some places, while at others
they Cut through Floor 3 or Floor 4 only. They are mere
deposits to fill up holes in the floors. Since such repairs were
at times needed at various spots all over the floors, these
brickbat deposits are widely dispersed. Had not the A.S.I.
been so struck by the necessity of finding pillars and pillar
bases to please its masters, which had to be in some
alignment, it could have found scattered over the ground not
just fifty but perhaps over a hundred or more such deposits of
brickbats.
6. THE ALLEGED CIRCULAR SHRINE
6.1. That the sub-heading given to the discovery of a structure of
burnt bricks as The Circular Shine at page 70 is indicative
of the mindset with which the A.S.I. team did the excavation
work. The A.S.I. team should have just said The circular
structure because there is no evidence to make this structure
a shrine. Just by comparing it with certain temple structures
and not with circular walls and buildings of Muslim
construction one can not come to the conclusion that the
circular structure was a Hindu Shrine. No object of Hindu
worship was found on this layer. The story of parnala is
also a sheer figment of imagination and a conjecture without
any evidentiary basis. The comparison at page 71 is irrelevant
and also unrealistic. The layer on which this circular structure
67
was discovered did not throw up any material to justify the
naming of this circular structure as a shrine. The surviving
wall, even in A.S.I.s own drawing, makes only a quarter of
circle and such shapes are fairly popular in walls of Muslim
construction. And then there are Muslim built domed circular
buildings also.
6.2. That the scale of the Plan (as given in Figure 17 of the
Report), would have an internal diameter of just 160 cms or
barely 5. Such a small shrine can hardly be worth writing
home about. But it is, in fact, much smaller. The plan in Fig.
17 shows not a circle (as one would have if the wall shown in
Plates 59 and 60 are continued) but an ellipse, which it has to
be in order to enclose the entire masonry floor. No elliptic
(Hindu) Shrine is, however produced by A.S.I. for
comparison the few that are shown re all circular. As Plate 59
makes clear the drawing in Fig. 17 ignores a course of bricks
which juts out to suggest a true circle, much shorter than the
elliptic one: this would reduce the internal diameter to even
less than 130 cms. or just 4.3 feet! Finally, as admitted by the
A.S.I. itself, nothing has been found in the structure in the
way of image or sacred piece that can justify it being called a
shrine.
6.3. That the southern part of the said structure was found resting
over a 0.75m wide brick wall (Wall 19 A ) of 9 courses
belonging to earlier period which runs in east-west direction
and joins the end of the north-south oriented brick wall(Wall
19 B) having 7 extant courses of bricks and a width of 0.55
m, making the south-western corner of the earlier structure.
The wall 19A rests over a still earlier wall (Wall 20) which is
0.62 m wide. Another wall (Wall 21) is about 0.51 m away from
structure 5 and northeast of it.
Wall 19 A and Wall 20 are considered to belong to the Post
Gupta (Period V) and Gupta (Period IV) periods respectively. It
68
appears from their description and from Plate 59 that the circular
shrine was built over existing walls without removing the walls.
These earlier walls were of the preceding period as well as the same
period. These earlier walls could not have been used as the
foundation for the structure as they are of completely different
dimensions and shape.
6.4. That the size of Structure 5 has an outer diameter of 1.6 m
and measures 0.6 m in the inner area. The entrance is 0.5 m
wide and length of the passage, from the entrance to the
inner area is 0.4 m. Comparisons are being made with circular
brick temples at Sravasti, Kurari, Masaon, Tinduli and
Chandrehe (p 71, Fig. 18). The outer diameter of these
structures range from 6.1 m (Masaon), 5.8 (Chandrehe and
Chirenath), 5.5 m (Tinduli), 4.9 m (Kurari I ) and 3.6 m
(Kurari II) (see Fig 18). The inner area of Kurari II, the
nearest in size to the Ayodhya structure is 1.4 m, Kurari I is
about 1.8 m and Chirenath is 2 m. The entrance
measurements are 0.9 m for Kurari II and 0.7 m for Kurari I.
The length of passage is 0.6 m for Kurari II and 1.5 m for
Kurari I.
6.5. That all the circular shrines have a mandapa except for the
Kurari temples Kurari I is also on a plinth with steps on the
east. The closest in size to structure 5, Kurari II, is more than
double the former structure. the inner area of Structure 5 is
too small to even allow anyone to enter it. Where is the
possibility, then, of performing any kind of abhisekha?
Out of all the temples illustrated in Fig. 18, four have the
entrance from the west, one from the north and one from the east .
Thus, it seems that the comparison between Structure 5 and these
shrines is being stretched too far . Structure 5 has been dated to the
10
th
century AD. However, as will be evident from the Report, the
69
layers associated with this structure have mixed material, preventing
any chronological determination of the structure.
6.6. That if, as pointed out by the A.S.I., subsequent structural
activity (in Period VI) damaged the circular shrine, it is
surprising that a letter so called temple would destroy an
earlier Hindu religious structure. Moreover, a later temple
could easily have incorporated an earlier temple into its plan
and maintained the sanctity of the earlier structure. Instead,
what is being suggested is that the central part of the later
temple is much further away to the north, about 20 m away.
Thus, it seems highly unlikely that this structure was a Hindu
religious shrine.
6.7. That Structure 5 could well have been a stupa , belonging to
perhaps the 6
th
or 7
th
century AD. Figure 24 giving a birds
eye view of the structure, shows a slight difference in
diameter between the first few lower courses of bricks and the
courses above them. This difference recalls the two parts of
the stupa, the medhi (or the drum) ands the anda (or the
higher rounded portion of the stupa). The opening towards
the east could well have been a niche for a Buddha figure.
One of the reasons for considering this structure as a stupa is
that it is too small to enter, which one would not have to do in
the case of a Buddist Stupa. These religious structures
symbolizing the Buddha are meant to be walked around and
not entered.
6.8. That according to the Table placed after Page 37 (A.S.I.
Report) this period V is represented by layers 6 and 5. Layer
6 is a flood deposit and layer 5 belongs to Gupta period. So
the formulation of Period V assigned to Post Gupta Rajput
times is arbitrary. Thus whatever structures are said to have
belonged to Period V, in fact, they belong to Period IV (Gupta
70
Period).
6.9. That the Text says that layer 5 A is a contemporary layer of
the shrine (structure 5 ) below which lie walls 19 A and
20..The layer below their working level is layer 7.
(page 72 of A.S.I. Report). There is existence of only one layer
between layers 5A and 7, the layer 6 (A.S.I. Section, F8, Fig 16).
Layer 7 has been dated 140 80 BC on 14c determination. The
calibrated date read AD 90 340 (Page 72 A.S.I. Report). The
range of calibrated date is extremely wide. However, on its
maximum range it reds about 4
th
C.A.D. While layer 7 is dated to
4th century A.D. and layer 5A is being said to be contemporary to
the Shrine which has been dated to 10
th
century A.D. The shrine on
stylistic grounds has been dated to 10
th
century A.D. (Page 71, A.S.I.
Report). The concerned two layers (i.e. 5A and 7) is intervened by
only one layer. That is layer 6 could this lone layer represent a
temporal duration of about six centuries ? It is ridiculous and
fantastic. It is simply not possible. Thus the dating of the shrine to
about 10
th
Century A.D. is arbitrary. The structure 5, whatever it
may be either a simple structure or a Buddha circular stupa, in view
of the radiocarbon data seems to have belonged to slightly later than
circa 4
th
Century A.D. That is Gupta Period.
6.9. That there is yet another important feature of the so called
Shrine that needs comment. it is about its suggested water
channel. Stylistically, its northward orientation has been
marked to have some special significance.
The channel does not have a uniform width throughout. It
does not have been a gradually decreasing width from south to
north. It becomes suddenly very narrow at nearing its end. Thus it
appears that it was not made for the purpose is has been suggested.
It seems to have taken the existing from by the removal of mortar
during excavations as was filled therein.
71
It did not function for draining water from south to north is
evident by the fact there is no evidence of slope towards the
direction in question. It has been measured by the levelling
instrument at three at points of the channel. It was found that there
is no sloe on its surface.
Further, had the so-called channel been in use for draining
water for a longtime, then there should have been the remains of
water residuals in the channel. Such evidence could be expected on
the northern side of the circular wall corresponding along to the area
of water discharge. But there is no such evidence either in the
channel or on the surface of the wall in question.
7. THE DIVINE COUPLE AND OTHER
ARCHITECTURAL MEMBERS:-
7.1 That the stone mutilated sculpture of a divine couple (p
272) is described on p.130 (Reg. No. 1184) and Plate 235.
The lower portion alone is present, below the waist. The
piece is so damaged that it is almost undecipherable. What
aspects of this incomprehensible piece make it a divine
couple, we are not told. Thus the report shows clear bias in
the use of the adjective divine and also couple.
7.2 That further, and more important, the recorded findspot
(p.130) of this piece is Trenches K3-K4 (in the east ) and the
recorded layer is Debris. Clearly, this piece of sculpture
does not come from a stratified context, leave alone the strata
of Period VII.
7.3 That so too, a black schist pillar with a square base and
octagonal shaft and intricate carving comes from surface
debris above the topmost floor (Floor 1) in Trench F3 (p.
140), which is also of no relevance.
7.4 That regarding the octagonal stone that was said to have been
72
carved in twefth century style, it may be noted that according
to the text (on p 56), it was found in Trench F-7, on pillar
base 32 but as per table (on p.63) that was resting on Floor
2, in Trench F6-F-7, while its foundation was resting on
floor 4. It may be notice that in the Section Facing South
West-East (E-F), no floor marked Floor 4 is indicate.
7.5 That the theory of so-called temple rests on some other
repotted architectural fragments also. Out of about 380 pieces
that have been tabulated, 205 are featureless with only marks
of dressing or in some cases are completely undressed stones.
To give examples, No 122 (Reg. No. 882) kept in Manas
Bhawan is a rectangular piece with pecking marks and
partially polished (p 129), No.131 (Reg. No. 953) is a
rectangular slab with one of its sides nicely polished
(p.129), No. 3 (Reg. No. AYD-1 / 74) kept in the tin shed at
the excavated site is a rectangular partly dressed sand stone
slab with an open groove meant for dowel (p. 131). the
majority of these came from the dump or fill and were in
many cases part of the Babri Masjid walls. There were
numerous others (particularly of calcrete) that were removed
from the dump from trenches, during excavation, that were
thrown away and are not tabulated. Out of 383 architectural
fragments, only 40 came from stratified context. Out of this
40, too, none were specific to a temple, even the 8 that have
been separately mentioned, pillar, doorjamb, octagonal shaft
of pillar, amalaka, divine couple, slab with srivatsa motif,
lotus medallion and a rechielled slab with lozenge design, are
of no significance. The srivatsa design is associatd with
Jainism ands the lotus design could as well be Budist or even
Muslim. The lozenge design could well belong to a Muslim
structure. It is also interesting that the floral design on the
architectural fragment in Plate 90 matches the lower portion
73
of the Arabic inscription in Plate 92. The latter depicts a
floral design and the design, as well as the method of carving,
in the two pieces are very similar. It is also mischievous to
label a sculpture showing the waist portions of two human
figures as representing a divine couple. Moreover, all the
above noted 8 pieces came from the debris. The octagonal
shafts has, in fact, not even been tabulated. Many of the
architectural fragments are, as admitted, of different materials
(pink sandstone), buff sandstone, spotted red sandstone,
calcrete, and so forth), and it is well known that temples do
not use stones of diverse colors and types for decoration.
7.6 That report admits that there are few architectural members
(plates 92 to 94 ) which can clearly be associated with Islamic
architecture and on stylistic grounds which might belong to
16
th
century A.D. onwards (page 122). On the same page in
earlier sentences the report described certain architectural
members. The photographs of these architectural members
appear on plates 79, 80, 81, 84, 85, 86, 87, 89 and 90. The
report says that stylistically these architectural members in
general and pillars in particular may be placed in a time
bracket of 10-12 century A.D. In Indo-Muslim architecture
elements of early Indian architecture which were consistent
with Islamic traditions were freely used. Foliage, floral and
geometric designs as found in early Indian architecture were
copied and used in the Indo-Muslim architecture and this is
the important feature which distinguished Indo-Muslim
architecture from that of Arabian Land and Persia. The
elements and designs in Plates 79, 80, 81, 85, 86, 87, 89 and
90 are found in many muslim religious and other buildings.
Lotus medallian as in pl. 70 are found as apex-stone in
domes.
On what basis the style and design contained in plate no. 93,
74
94 is attributed to 16 century, is also not mentioned.
The architectural members shown in plate no. 79, 80, 81, 84,
85, 86, 87, 89 and 90 do not contain any carving of a Hindu deity.
Such elements and designs have been used in Indo-Muslim
architecture and hence these architectural members may have been
parts of a muslims structure. On what basis the A.S.I. remarks that
these emphatically speak about their association with temple
architecture, is not known. What is the basis for placing these
architectural members in time bracket of 10-12 century A.D. is also
not given in the report. Plate No. 81 is not amalaka but a part of
petal design. It has to e noted that the so-called amalaka (pl. 81) is a
surface collection found in debris above floor-1 (page 141 Sr. No.
125).
7.7. That the octagonal stone block having so-called floral motif
has been dated to 12
th
century A.D. on its alleged similarity
with that one found in the Dharmachakrajina Vihar of
Kumardavi at Sarnath (Plates 39 and 40 ). Even a cursory
inspection clearly reveals that there is not the least similarity
between the two. The Sarnath Specimen is rectangular on
Plan while the Ayodhya one is Octagonal. Again the Sarnath
specimen has depiction of floral motif but the Ayodhya
specimen has different motif. Further, apart from the stylistic
dissimilarity there is dissimilarity in their architectural
technique as well. On the Sarnath Specimen the depiction of
motif is in slightly low relief while on the Ayodhya one it is in
very bold relief.
There is of course one very distinct similarity between the
two. Both belong to the category of reused material. The Sarnath
Vihar in question has been built mainly by reused earlier materials
such as broken bricks, stone architectural members, both plain as
well as decorated etc. The stone pilaster as cited for comparison
75
with octagonal stone block is also a reused specimen. It, thus,
cannot be contemporary to the builder of the Vihar in question.
There is no question on the date of Kumardevi. There is no
question on the date of Kumardevi. It is early 12
th
Century A.d. But
there is of course a big question over the date of the pilaster cited
for comparison. It is certainly of some earlier date it could be even
of Gupta period.
So it is obvious that of the listed architectural members(stored
in Manas Bhawan as well as in the Tin Shed at the excavation site,
mostly collected from the surface or debris above floor1) majority
of them are fragmentary and plain in nature. It is also obvious that
they cannot be dated on stylistic ground.
7.8. That in view of the evidence drawn from the depositional
history of the site there was no habitation at this site after
Gupta period for a long time. It was reoccupied after a long
desertion in 13th century A.D. Under this situation, many of
the remains of architectural members having so called
association with temples, as alleged, could have belonged to
Gupta period.some of these said to have belonged to 10
th

12
th
century A.D. could ha e been brought here to be used as
building material from some neighboring sites. This is the
situation also of the decorated/moulded bricks. Needless to
mention that moulded bricks were quite prevalent in Gupta
Period.
7. 9. INADEQUANCIES OF THE STRTIGRAPHY:-
8.1 That an essential requirement in an excavation report is a
chapter that describes, one after the other, the main strata or
levels found in the excavation, their nature (soil texture,
colour,etc. ) and contents. For example in H.D. Sankalia and
S.B. Deo, Report on the Excavations, at Nasik and Jorwe,
76
Poona Deccan College, 1951, Chapter Two, entitled Strata
and Sturctures contains on pp. 9-19 a description of all the
strata in the different excavated areas of the site. Earth
colours, textures, the presence of charcoal or ash, the slope of
the strata, their depth, etc. are described. so also, in M.K.
Dhavalikar et a., Excavations at Inamgagaon, Pune: Decan
College, 1988, Chapter 7 on Cuttings and Stratigraphy
describes the 16 layers of the site (pp. 121-125). Even though
Inamgaon was occupied only in the chalcolithic period and is
not a multi period site like Ayodhya, there is information on
each of the 16 layers of themound inthis chapter. Veerapuram
is a site on the Krishna river in Andhra Pradesh, with
neolithic, megalithic (iron age), early historic, and early
medieval (AD 300-400 ) levels. For this site too, the
excavators have given a description of each of the 15 strata.
See T.V.G. Sastri, M. Kasturi Bai, and J.V. Prasada Rao,
Veerapuram: A type Site for Cultural Study in the Krishna
Valley. Hyderabad: Birla Archaeological and cultural
Research Institute, 1984, pp 15-19. But there is no such
section, leave alone a chapter, in the Ayodhya repot. There are
serious conseuences of this lacuna in basic excavation and
recording procedure. Moreover, the descriptions in Chapters
II (Cuttings), III (Stratigraphy and Cuttings) and IV
(Structures) very rarely allude to the drawn sections presented
in the report while sections present, n a sense, an X-ray of
the history of a mound. It is on the basis of sections that the
sequence and history of a mound is constructed.
8.2 That it may also be pointed out that, the descriptions given in
the report are not always matched by the sections. The
reverse is also true. The text does not state the periods to
which the following layers belong:
(i) Trench 13: layer 6 with the inscribed stone (Figure 22);
77
(ii) Trenches ZE1-ZF1: Layers 4 to 6 (Section Facing
South, West-East (K-L); and
(iii) Trench E7 Layers 3 to 6 (Section Facing South, West-
East (E-F).
8.3 That the text mentions (p.40, pp.68-69) a red brick crush floor
of Period VI, attached to Wall 17, and states (p.40) that this
floor can be traced in Trenches E8 and F8, G7, J5 and J6 and
ZF 1. It is seen in the east section of F1. As regards trench G
7, we see this red floor in Photograph No. V, and we find a
floor marked Floor 4 in the section Facing South, West-
East (E-F). But as regards E8, the Section Facing South,
West-East (E-F). But as regards E8, the Section Facing South,
West-East (C-D) marks (or numbers) Floors 1 and 2 only:
which, the text indicates, belong to later periods, layers 3 and
4, below Floor 2, are assigned to Period VI on p. 41. As for
J5 and J6, the Section Facing South, West East (E-F)
indicates Floor 2 below layer 4, and, at a lower level, a very
thick or flooring of brickbats.
The same problem is faced as regards ZF 1: the Section
Facing South, West-East (K-L) does not mark or number any floors
in the layers1 to 6, Layers 4 to 6, are not assigned to any of th
periods of the sequence. ZF 1, was found to have been dug down 1
m against the north section, in which some broken bricks can be
seen, but these are not the same as the red brick crush floor. Thus
the numbering of the floors and other details are not according to
the stratigraphy and the report is full of confusion.
8.4 That chapter II, III and IV mention the actual layer numbers,
in specific trenches assigned to Periods 1 to VI. For instance,
to Period VI which lies below the massive structure ,
belong the following (pp. 40-41).
78
layers 5,6,7, in Trench G2;
layers 3,3A, 4 in Trench G7
layers 5, 6 in Trench J 5 and J 6; and
layers 3, 4 in Trench E8 and F8
However, the text fails to mention which particular layers, in
these and other trenches, pertain to Period VII (pp. 41-43), which
very stratum is claimed to represent the alleged massive pillared
hall. we could assume that in the published sections either one or
two layers above those listed for Period VI would pertain to the so
called massive structure Also, on page 42 is given the confusing
information that the period is represented by
layers 1 and 2 in almost all the trenches except those in the
eastern area where the deposit was disturbed.. an in the northern
area where the floor of the period VII-C remained exposed and
under use till late. In the northern areas layers 2 and 3 belong to this
period . The three floors of this period were not found in all the
trenches uniformly.
We can only assume that in the southern area it is layers 1 and
2 (with Floors 2 and 3 as marked on the Section Facing South,
West-East E-F) that represent this allegedly significant period and,
by default, that nothing but the mosque floor lies over it.
significantly, and as stated above, we are not told the periods to
which layers 3, 4, 5 and 6 of Trench E 7 are assigned.
If G2 whose layers 5, 6 and 7 belong to Period VI, is counted
as one of the northern trenches and layers 2 and 3 belong to
period VII as the paragraph quoted above indicates, to which period
can we assign its layer 4? If it is counted as one of the southern
trenches (where, the para quoted above says, layers 1 and 2 belong
to Period VII, to which period do layers 4 and 3 belong? With no
79
section drawing of G2 available, we are none the wiser. In the
Schematic Cross Section of the Disputed Mound ands the Tentative
Periodization of the Disputed site, in fact, no layer below layer 3 is
mentioned in the relevant column.
Thus we see the consequences of the serious inadequacy of
the report, mentioned above. Nowhere does the report tell us the
content/colour/texture of the northern layers2 and 3, or the southern
layers 1 and 2. No evidence is cited to show that layers 1 and 2 in
the south of the mound are contemporary with layers 2 and 3 in the
north of the mound. the paragraph on P. 42 of the report, quoted
above, remains without substance.
8.5. that below Floor 1 obviously belonging tot he mosque, we
expect to see, in the sections and plans of the various trenches, a
sequence of 3 floors, presumably from Floor 2 downwards to a
Floor 4 of period VII with a Floor 5 belonging to period VI. But
nowhere is there any section showing Floors numbered 4 (which
we expect, from the text, to the lowest floor of the alleged massive
structure of Period VII) or 5 (which we would expect to be of the
Period VI below), and no section show a sequence of floors
numbered 1 to 5.
On p. 42 the text mentions the most extensive floor of the
mound, assigned to Phase C of Period VIII, but fails to state what
number has been assigned to it in the relevant trenches.
In Photograph 24 of Trench E 7, we see a floor marked Floor
3 at the bottom of the trench, uniformly touching the remnant
plaster on the east face of the western wall, within the south
chamber of the mosque. The acceptable inference would be that
this Floor 3 about 1 m below surface, belonging to the so called
massive structure, is actually in functional relationship with the
brick-course levels of the north south wall on the west.
80
Below Floor 3, which is very approximately 1 m below
surface in various trenches (as seen in several sections), a floor is
marked 4 in the section Facing South, west-East (E-F), as also in
Trench G7 (see also Photograph 5). This Floor 4, however, is
shown as laying between layers 4 and 3A in the section (between
layers 3 and 4 in the photograph). These layers 3 and 4, the text
tells us (p.41), belong to the earlier Period VI. Thus Floor 4 in
this section cannot belong to Period VII or the massive structure.
moreover, this floor is quite different from the floors that lay above
it in the west section of G7, as evident in Photograph # 5. Thus it
would be Floor 3 that belonged to period VII, which means that
in this trench only two floors, 3 and 2, may possibly be assigned to
that period.
In Photograph # 53, Floor 4 is mentioned in the caption as
the first floor associated with the north-south wall. It is shown at
the base of the excavation. The trench is without number in both
photograph and caption. The floor at the base of the trench lies
several (30-40?) centimeters below what is marked Floor 1 on the
section. Moreover, the section labels above this floor mark only
layers 3 and 2, with Floor 1 between these layers.
The only other mention of Floor 4 is in the hypothetical
isometric reconstruction of the mosque and temple in Figure 23A.
This is only a suggested reconstruction.
True, it is said (pp. 42-43) that the numbering of the floors of
Period VII differs from trench to trench. yet the question still
remains s to which section in the report shows phases A to C of
Period VI and their three floors. , whatever the numbers assigned to
them. As pointed out earlier, the report nowhere states the nature
and content of the layers distinguished as VIII A, VII B and VII C.
In strtigraphic terms, ten, the characteristics and contents of
the 3 phases of Period VII as given in the text of the report, are
81
thrown in doubt by lacunae and inconsistencies. Lacunae include
not only an absence of 3 sequential floors in the sections of the
relevant layers, but also the absence of information as to the content
of the Strata below those assigned to Period VII in Trench E7, one
of the more important on the mound as it contains an undisputed
part of the mosque, the South chamber.
8.6. That a simple stratigraphic principle is that no wall can be
accurately dated vis--vis floors, unless we can see from which
level the foundation trench for the western wall was cut, an which
floor seals (or runs over) that vertical foundation cut (running close
along the wall). A wall can be used, even raised higher, in periods
after it was originally built. If a floor runs right up to a wall, with
no gap or interruption between them. We assume that the wall and
floor are functionally related, i.e. that they belong to the same
building it may be that the floor was laid after the wall was built,
but not vice versa. the stratum to which the first construction of the
wall dates, is indicated by the level from which the cut was for
made its foundation. That cut, in its turn, will be dated by the floor
or surface that seals the cut. The report does not state which layer
or floor seals the so-called foundation trench mentioned on p. 41and
p.69.
Photograph no.52 (Trench E8) purports to show a cut,
indicating the date of the massive west wall, in the north face of the
trench, but (a) this face or section (technically, the Section Facing
South) shows an animal burrow sloping away from the west wall
towards the east. the burrow cuts the second floor from the top, and
also the read crush floor below it. From the level of the latter, the
read stratum, a cut goes down vertically, but is too far (about 75cm.)
from the west wall to be appreciated as its foundation trench cut.
Besides, (b) there is no proof because I the photograph the
cut in the floor at the bottom of the trench (this floor lies several
82
centimeters below what is marked.
Floor 2 on the second in the Photograph) is neither close to, nor
parallel to, the line of the wall, and does not therefore, indicate the
edge of a trench dug to make a wall.
In Photograph 55 of Trench ZE1 we see labels marking
Floor 1 and Floor 2 in the section, and a floor (without number)
at the base of the excavation area below, but there is no cut visible
in the trench section close to the east face of the north-south running
wall. the upper and lower floors run right up to the east face of the
wall. Thus we cannot say that either of these floors was earlier than,
and cut to make room for, the upper courses of the north-sough wall.
the same observation follows from the Section Facing South, West-
East (K-L), pertaining to Trench ZE1, east of Wall # 5 A.
So too no cut is visible in the Section E-F, Facing South, in E
7 inside the South Chamber of the mosque. Al that we have in this I
a sequence of surfaces or strata below Floor 3 coming straight up
to the western wall in E7. There is no cut line, vertical or sloping,
near the vertical edge of the wall.
9.TERRACOTA FIGURINES ____RELEVANCE OF:-
9.1 That during the excavation, the A.S.I. found 62 human 131
animal figurines. These discoveries are irrelevant to the question
under inquiry. A large number of them belong to ancient period.
The A.S.I. unnecessarily took pains to give details of terracotta
figurines and to include their 33 plates (Pls. No. 104 to 136)
knowing well that these figurines, most of which belong to ancient
periods, were not at all relevant to the question contained in the
Hon'ble Courts order. The chart below gives an idea of this
exercise in futility. It is possible that the A.S.I. gave detailed
description of human figurines and their photographs to lead
83
credence to its theory of an alleged temple-like structure beneath
Babri Masjid.
Plate No. Period of the figurine Page of Vol.1
104 Late level (period not
specified)
177
105 2
nd
Cent. A.D. 179
106 1
st
Cent. A.D. 179
107 2
nd
Cent. A.D. 177
108 2
nd
Cent. A.D. 183
109
3rd
Cent. A.D. 181
111
3rd
Cent. A.D. 177
112 Gupta level 180
113 Gupta level 182
114
6th
Cent. A.D. 182
115 1
st
Cent. A.D. 184
116 4
th
Cent. A.D. 184
123 3
rd
Cent. A.D. 185
124 Pre-Mauryan 184
125 3
rd
Cent. BC. 185
126 3
rd
Cent. BC 176
9.2. That there are a large number discrepancies also in the
description of these Terracotta finds, which also create doubts
upon the bonafides of the A.S.I. Team giving such incorrect
descriptions. it is true that when archaeological deposits are
disturbed, it is not surprising to find earlier material in later
levels. This happens when construction or leveling activities
require the bringing in of soil from peripheral areas or the
clearing and mixing of older deposits. On the other hand, the
reverse is impossible, that is we cannot, in an earlier stratified
84
context, find material of later periods. However, the latter
appears to the be case at Ayodhya in the context of terracota
figurines as seen in the tabulation provided on pp.174-203.
We find in numerous cases figurines of later periods in far
earlier levels, as is evident from the following Table:-
Table of Discrepancies in stratigraphy in relation to terracotta
figurines
Artefact details Discrepancies
S.N. 50. R. No. 1027. Part of
human Figurine. Mughal
level. G5, layer 2, below Floor
2
S.No.52, R.No.393 Animal
figurine. Late Medieval
period. E8, layer 5
S.No.67, R.No.549, Animal
figurine. early Medieval. F9,
layer 5
S.No.69, R.N.594. Animal
figurine. Mughal. E8, layer 6
85
9.3. That it may also be pointed out that on p.93 the Report
mentions that shapes like sprinkler appear in Period IV
(Gupta period). However, on p.80, sprinklers are mentioned
from Period II (Sunga level) that evolved into their diagnostic
forms in the subsequent Period III or Kushan period. So also
on p.41, it is stated that layers 5,6 and 7 in Trench G2 belong
to the Medieval Sultanate level. In the schematic cross-
section and tentative periodization, layer 2 and 3 belong to
the Medieval level. Hence, what is then layer 4?
10. GLAZED WARES AND GLAZED TILES:-
10.1. That the glazed ware, often called Muslim glazed ware,
constitutes an equally definite piece of evidence, which
militates against the presence or construction of a temple,
since such galzed ware was not at all used in temples. The
ware is all pervasive till much below the level of Floor
No.4, which floor is falsely ascribed in the Report to the
huge structure of a temple allegedly built in the 11
th
-12
th
centuries. The report tells us that the glazed ware sherds only
make their appearance in the last phase of the period VII
(p. 270). Here we directly encounter the play with the names
of periods. On page 270, Period VII is called Medieval
Sultanate, dated to 12
th
16
th
century A.D. But on p. 40
Medieval- Sultanate is the name used for Period VI, dated
to 10
th
and 11
th
centuries. In Chapter V (Pottery), there is no
statement made to the effect that the galzed ware appears in
86
the last phase of Period VII as is asserted in the Summary.
Rather, it is there definitely stated that the pottery of
Medieval-Sultanate, Mughal and Late-and-Post Mughal
period (Periods VII to IX)indicates that there is not much
difference in pottery wares and shapes and that the
distinctive pottery of the periods is glazed ware: (p. 108).
The placing of the appearance of Glazed Ware in the last
phase of Period VII is thus a last-minute invention in the
Report, to keep its massive temple, allegedly built in Period
VII, clear of Glazed-Ware by a sleight of hand, because
otherwise it would militate against a temple being built in that
period. All this gross manipulation has been possible because
the items of galzed pottery have not been attributed to their
trench and stratum even in the select list of 21 items of glazed
ware (out of hundreds of items actually obtained) on pages
109-11]. Seeing the importance of glazed ware as a factor for
elementary dating (pre or post- Muslim habitation at the site),
and in view also of the Hon'ble High Courts order dated 10-
4-2003 about the need for recording of glazed ware, a
tabulation of all recorded galzed-ware sherds according to
trench and stratum was essential. That this has been entirely
disregarded shows that, owing to the glazed-ware evidence
being totally incompatible with any alleged temple
construction activity in Period VI, the A.S.I. has resorted to
the most unprofessional act of ignoring and manipulating the
archaeological finds.
10.2. That Going by the Pottery Section of the Report (p. 108), not
by its summary, the presence of Glazed Ware throughout
Period VII (Medieval, 12
th
-16
th
centuries) rules out what is
asserted on page 41, that a column-based structure---- (on
the alleged pillar bases)-----was built in this period. How
could Muslims have been using glazed ware inside a temple?
87
(To say that glazed ware was found at Multan and Tulamba
before the 13
th
century, is hardly germaine to the issue, since,
obviously these were towns under Arab rule with Muslim
settlements since 714 AD onwards, and so the use of glazed
ware over there can be expected.) The whole point is that
glazed ware is an indicator of Muslim habitation, and is not
found in medieval Hindu temples.
10.3. That the question whether particular sorts of glazed ware
made by Muslim potters, could have been used in any
medieval Hindu temple was dealt with by S.K. Mirmira, in
Indian Pottery (Chanda: Gramodyaya Sangh, 1973) who
states (pp. 5-7):-
India was invaded and ruled by the Moslem dynasties since
1000 AD for a few centuries and along with them they had
brought certain arts and crafts. Decorative pottery was one o
them. In the 12
th
century AD Muslim rulers had encouraged
many potters from their homelands to come and settle in
India. These potters especially from Persia, knew hot to
superimpose bluish green glaze on red clay wares.As
a result of this, the potters near Delhi have become famous
for their bluish decorations An enthusiastic Maharaja of
Rajasthan near Jodhpur brought some potters from Arab
countries..
It is presumed that the reason for not adopting the
glazing technique of Muslim craftsmen in religious; the
orthodox Hindu potters did not relish the idea of learning the
new technique from those who eat beef. In Khurja near Delhi
there still a few Muslim potters, descendants of the Persian
settlers, who still use this technique of glazing.
Concerning porcelain wares the author writes,
88
Indians because of religious prejudices did not like these, as
they thought that bones were used in the clay for whitening
the wares. Even in this day, in rural parts people call
whitewares as farangi..Therefore, nobody even tried to
adopt these techniques.
10.4. The story of Glazed Tiles is very similar. These too are an
index of Muslim habitation. yet 2 Glazed Tiles are found in
layers of Period VI which means that the layers are wrongly
assigned and must be dated to period VII (Sultanate period).
There could be no remains of any huge temple in these
layers then.
10.5. That On p. 163, it is mentioned that glazed tiles mainly
come from debris and dump of the disputed structure.
However, some of the glazed tile pieces have also been
recovered from the depth which is lower than the disputed
structure but from the levels of Period VIII and IX only.
These are completely false statements and show the level of
inaccuracy in the Report. Fist of all, the glazed tiles do not
come from the debris and dump of the disputed structure.
The debris and dump was removed from Trenches E2, F2,
G5, F6, E6, D6, F3 and F4/F5 out of the excavated trenches.
Glazed tiles that have been found from these trenches come
from levels below the Babri Masjid floor and not from the
debris or dump lying about it. some of the debris that had
rolled down the western slope, was recovered from the B and
C series of trenches. Glazed tiles from this debris add up to a
total of 14, Second, of the 155 pieces of glazed tiles in the
table provided by the A.S.I., 96 come from pits or fill in
various trenches. Of the remaining 45, 29 come from Period
VII but 14 are from Medieval levels (Period VII) and 2 from
the Early Medieval level (Period VI). This has been gleaned
89
from the table provided by the A.S.I. on opp. 164-72. Thus,
the A.S.I.s own information falsifies their claim that the
glazed title pieces mainly come from Period VIII and IX.
11. GROSS OMISSION: EVIDENCE OF ANIMIAL
BONES:-
11.1. One decisive piece of evidence, which entirely negates the
possibility of a temple, is that of animal bones. Bone
fragments with cut marks are a sure sign of animals being
eater at the site, and, therefore, rule out the possibility of a
temple existing at the site at the relevant time. As no record
of bones was being maintained by the A.S.I. Team, the
plaintiffs had moved application and thereupon directions
were given by the Hon'ble High Court to the A.S.I. to record
the number and size of bones and glazed wares (Order
dated 10-4-2003). The Report in its Summary of Results
admits that animal bones have been recovered from various
levels of different periods (Report, p. 270). Any serious
archaeological report would have tabulated the bones, by
periods, levels and trenches, and identified the species of the
animals. There should, indeed, have been a chapter devoted to
animal bones/ remains. But despite the statement in its
Summary, there is no word about the animal bones in the
main text of the Report. This astonishing omission is patently
due to the A.S.I.s prejudiced mindset with which the
excavations were carried out and far of the fatal implications
held out by the animal bone evidence for its preconceived
temple theory. A partial table is being provided of animal
bones as found in the various trenches at different levels as
noted by the nominess of the plaintiffs (which may also be
verified from the Day-to-Day register) and it is shown how
these are found at all levels all over the site. The A.S.I.
90
perhaps knows that sacrificial animals bones (if we are
dealing here with a temple where animals were sacrificed,
which, incidentally, has not been claimed for any Rama
temple) cannot be represented by bone fragments with cut-
marks strewn all over, but need to be found at particular
spots, practically whole and entire, which is not here at all the
case in even a single instance.
11.2. That the statements on pages 45, 55 and 271 etc. of the report,
suggesting that probably this site was not a habitational site
and had stratified cultural material only from the first seven
periods or 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 and the area
below the disputed structure remained a place for public use
for along time till the Period VIII (Mughal level) stand belied
and negatived by the animal bone evidence and perhaps that
is why the Animal bones were totally ignored.
Given below is a Table of animal bones found in various
trenches at various levels, from records maintained by
nominees during the excavations and more detailed and
accurate Table may be prepared and filed by the A.S.I. with
the help of day to day register.
Table showing Examples of finds of animal bones:-
Trench, Layer and Depth Affiliated Period
E8, 8: 280-85 Gupta
E7, 7: 245-60 Gupta
G7, 7: 228-45 Gupta
E9, 4:96-124 Early Medieval
F9, pit, s/b 5: 195 Early Medieval/Post Gupta
91
E8, 5:230-68 Post Gupta
G7,7: 248-53 Gupta
E8, 6: 168-86 Post Gupta
F6, 2, below Floor 2: 48-77 Medieval
G7,8: 285-90 Gupta
E8, 6: 186-215 Post Gupta
F6, 2: 77-123
G8, 6: 135 (changed to layer 5)
Medieval
Post Gupta
G8, 5: 185 Post Gupta
G8, 5: 230 Post Gupta
F4/F5, dump s/b 5: 182-220 Post Gupta
G7, 20: 1140-1170 NBP
G7, 21: 1167-1207 NBP
G4/G5, pit s/b Floor 2: 93-113 Medieval
J5/K5, 2: 45-80 Fill
J6/K6, 2: 45-80 Fill
ZE1, 2: 180 Medieval
G7, pit s/b 21: 1207-1240 NBP
G4/G5, filling: 113-140 -
G2, 1, below Floor 1:22-35 Mughal
J3/K3, 1: 73 Fill
G2, 1: 30-45 Mughal
J3/K3, 2: 30-70 Fill
E1/ZE1, 3:90 Medieval
G8, 6:135 Post Gupta
G8, 5: 230 Post Gupta
E1/E2, 2: 30-40 Medieval
92
K5, 3:92-103 Mughal
K3, 2: 30-25 Late and Post Moghal
F4/F5, 2: 26-46 Medieval
F4/F5, 4 pit s/b: 140-166 Early Medieval/Medieval
F3, below Floor 4: 364 Early Medieval/Medieval
G7, 18, 19: 1050-1115 NBP
G1/ZG1, 3: 100-165 Medieval
G7, 20: 1115-1140 NBP
E6, 2: 53-70 Medieval
G9, below Floor: 15-20 Medieval
[All measurements given above are in meters and centimeters based
on the information given by the A.S.I. at the site]
11.3. That from the above table it is clear that animal bones have
been found in NBP, Gupta, post Glupta, Early Medieval,
Medieval and Mughal levels, in other words, practically from
all levels. It should also be clear that bones were also found
from the central supposedly significant area, as in Trenches
F3 and F4/F5. In the case of F3, bones are coming from
Early Medieval levels and in F4/F5 from Early Medieval and
Medieval levels. If, as according to the A.S.I., post-Gupta
levels onwards are not residential in nature but attest to levels
with temples, and these levels are supposedly stratified, it is
to be wondered at as to why animal bones were found even
from the central part of the alleged temple. If, as the A.S.I.
says, soil from earlier levels was used for construction, then it
is surprising that for the construction of a temple, no sorting
or sieving was done, as bones and other such materials are
regarded as highly polluting.
93
12. POTTERY:-
12.1. That in Chapter V on Pottery, it is highly significant that the
pottery of Periods VI, VIII and IX is all described together
(see pp. 108-120). If stratum VII contained a structure so
radically different from the mosque in VIII above, why were
their finds not kept separate?
12.2. That the moreover, it is stated (p. 108) that the pottery of
Periods VII, VIII and IX is combined together because there
is not much difference in either wares or shapes. Thus the
pottery of an insinuated temple structure is said to be of the
same types as that of a mosque! Incidentally, chillum and
hukka pieces are also recorded in this combined batch of
pottery (p. 115). Can we expect such finds in a temple?
13. INSCRIPTIONS:-
13.1. That the short report on Inscriptions (on pages 204-06) one of
which is in Nagari, and are are in Arabic, show how casual
and preconceived in its notions was the A.S.I. The first is not
to be dated with any certitude to the 11
th
century: its time
range could be 7
th
12
th
centuries; and it could be a Pala
record of a Buddhist provenance--- a piece of evidence
negativing the presence of a Hindu temple. On purely
palaeographic rounds, the Arabic inscriptions can be dated to
the 13
th
century with a much reason as to the 16
th
century.
13.2. That the so-called Nagari inscription has only five letters
whose right-ward sloping limes in their lower portions
proclaim their affinity to the Siddhamatrika script, 7
th
12
th
centuries, out of which the Devanagari script has originated.
Five letter are not sufficient to declare the letters as belonging
to the 11
th
century (where the A.S.I. places construction of the
huge temple. (See for the Sidhamatrika script and
94
characters_ Richard Salomon, Indian Epigraphy, New Delhi,
1998, pp.32, 39-41). Thus the time-range of the inscription
should be 7
th
12
th
centuries. The decipherment is also hasty.
The reading of the character next to la is ja (with a as in
jar), not simple ja with a as u judge. Further the A.S.I.
should have asked itself about the suffix pala, which suggests
a possible reference to one of the Pala rulers of Bengal and
Bihar (8
th
- 11
th
centuries) who also held eastern U.P. (as
shown by an inscription at Sarnath), and used the
Siddhamatrika script. Their well-known patronage of
Buddism seems to be the sole reason why the A.S.I. has
avoided any further enquiry into the name-Pala found in this
inscription.
13.3. That the bias of the A.S.I. is again manifest in how the two
Arabic inscriptions found in the debris of the Mosque, are
dealt with in the Report, (pages 205-6), with Plates 91 and 92.
The A.S.I. epigraphist dates them both to the early sixteenth
century, allegedly on the basis of the naskh characters
employed. He gives no reason why the writing cannot be
dated earlier, or placed within a larger range, say 13
th
- 18
th
century. In this respect reference may be given to the
inscriptions on fronts of the Qutub Minar and the tomb of
Iltutamish, both belonging to the first half of the 13
th
century
(given in Tatsuro Yanamoto, et al., Delhi: Architectural
Remains of the Delhi Sutanate Period, Tokyo, 1967, Plates 2b,
6b). It will be seen that the naskh is of the same style.
Clearly, the A.S.I. epigraphist has not even considered the
possibility of an earlier date, because he know he was
expected to hold that all mosque materials must be dated to
1528, so that there be no thought that anything could belong
to an earlier mosque/Eidgah on the site.
13.4. That the floral design of the stone slab in which the word
95
Allah has been carved (Plate 92) should show to everyone
how absurd it is to take a floral motif as a sure sign of a
temple!
14. OTHER CONTRADICTIONS AND DISCREPANCIES:-
14.1. That there appears to be considerable confusion on the point
as to when structural activity first began at the site. For
example, on p. 37 it is mentioned that, the site had seen
successive structural activities which began from the middle
of the Kushan level (Period III). On p. 38 in the section on
Period II (Sunga level) it is mentioned that, it is this period
that the site witnessed first structural activity in stone and
brick, as noticed in J3.
14.2. That the descriptive term used for certain period changes
from one chapter to another. For example, in Chapter III
(Stratigraphy and Chronology), Period VI is described as the
Medieval-Sultanate level. In the same chapter, the tentative
periodization and schematic cross-section of the mound
describes the period as Early Medieval-sultanate. however, in
Chapter V (Pottery) and Chapter X (summary of Results) this
same period is described as Early Medieval. In Chapter X,
this period is also described as Early Medieval-Rajput.
Period VII in Chapter III is described as Medial but the
Chapter V and Chapter X, it is described as Medieval
Sutanate.
14.3. That on p.44, it is stated that, no deposit contemporary to the
Mughal period exists on the mound presently. The next page
(45) it points out that the last two periods (Mughal and Late
Post Mughal) are only represented by structural activities.
Further, on p. 271, the Report points out that, there is an
increase in contemporary archaeological material including
pottery in the Mughal period.
96
14.4. That on page 41, it is mentioned that the earliest floor
extended in the eastern area up to the H series of trenches in
sub-period VIIA. In sub-period VIIB, the next floor extended
up to trenches J4-J5-J6. On p. 42, it is indicated that in sub-
period VIIC, the floor associated with the pillar bases is the
most extensive on the mound. In Fig. 23A, however, Floor 4
(the said earliest floor) is shown as extending all over the
mound while Floor 3 and 2 are more restricted providing a
comolete contradictory picture.
14.5. That In Chapter III, on p. 42, Period VII is described thus:
Total deposit of this period is approximately 50 to 60 cm
thick which includes layers 1 and 2 in almost all the trenches
except those in the eastern area where the deposit was
disturbed by the construction in the later periods and in the
northern are where the floor of the Period VIIC remained
exposed and under use till late. However, according to the
tentative periodization and schematic cross-section in the
southern area, layer 1 is shown to be clearly belonging to the
Mughal period. So does layer 1 in the southern area belong
to period VII or VIII?
14.6. That on p. 44, while discussing Period IX (Late and Post
Mughal level), it is mentioned that first a partition wall was
added and later an enclosure wall was built for the complex.
However, it is well known that the Babri Masjid was built
with an enclusure wall and around the mid-19
th
century, the
area of the Babri Masjid was partitioned with a wall.
14.7. That on the same page (p.44) and on pp. 70 and 270 it is
mentioned that there were burials in the late and post Mughal
period (Period IX) in the north and south that have cut the top
floors and were sealed by layer 1. According to the A.S.I.s
own admission, on p. 42, layer 1 in the southern area is
97
supposed to be of the medieval period while in the schematic
cross-section and tentative periodization, layer 1 is of the
Mughal period. Therefore, if these burials are sealed by layer
1, then either they belong to the medieval period (Period VII-
12
th
to 16
th
centuries) or to the Mughal period (period VIII).
It may be pointed out that it is in the former period that the
alleged temple supposedly stood here.
14.8. That the tabulation of the pillar bases from pp. 56-57
mentions the floors on which they rest and in some cases to
which they are contemporary. However, the floor numbers do
not tally with the information provided in Appendix IV at the
end of the text. For example, pillar base 22 on pp. 60-61 is
indicated as resting on Floor 4 but on p.6 of the appendix,
there is no Floor 4 in Trench F2. This discrepancy has been
found in 21 cases out of 50.
14.9. That the tabulation of stone architectural fragments, in
Chapter VI, also includes non-architectural members like
S.No.3 (saddle), S.No.20 (bowl), S.No.48 (pestle), S.No.51
(pestle), S.No.76 (diya), S.No.78 (pestle), S.No.81 (elephant),
S.No.90 (muller) and S.No.145 (dish). These, if of stone,
should have been described in Chapter IX, on miscellaneous
objects.
15. SUMMARY:-
15.1. While summarizing the objections against the A.S.I. Report it
can be safely said that the objections mentioned above cannot
be said to be exhaustive but rather the same are only
indicative of the shortcomings, lacunae, partisan attitude, bias
and unprofessional style and method of the said report and in
short it can be said that the well wishes of Indian
Archaeology have to consider that how the credibility and
reputation of the A.S.I. can be revived after such a report,
98
which has virtually destroyed the 142 years old image and
distinguished past of such an erstwhile renowned
organisation.
15.2. That since the Summary of Results (P.P. 268-272 of the
report) is not based upon the archaeological finds and
material, no member of the A.S.I. Team takes responsibility
for the same and that is why chapters I to IX are ascribed to
one or more authors, but not so the last, chapter X, (Summary
of Results).
15.3. That the conclusion drawn in the report (P. 272) about the
alleged remains mentioned therein, being indicative of the
distinctive features found associated with the temples of
north India is totally baseless, unfounded and without
support of any archaeological evidence.
15.4. That about the evidence of continuity in structural phases
from the tenth century A.D. onwards up to the construction of
the disputed structure, statigraphically, the situation is not so
as has been alleged. The depositional history of the site
clearly reveals that the site was abandoned and remained
deserted for about six centuries after Gupta Period. That is,
from about six to twelfth century A.D. It was reoccupied in
13
th
century by the people who used glazed ware, glazed
titles, made floors of lime and surkhi and lived on food
animals.
15.5. That the available positive material evidence relating to
stratigraphy, depositional history, cultural assemblages and
architectural technology clearly reveal that the structures
lying below the Babri Masjid belong to the Islamic Period.
There is nothing to indicate at all that there were any remains
of an alleged temple.
99
PRAYER
It is therefore, prayed that this Hon'ble Court may kindly be
pleased to reject the A.S.I. Report filed on 22-8-2003 and such other
order/ orders as may be deemed just and proper in the circumstances
of the case may also be passed in the ends of justice.
Lucknow: Dated
October 8, 2003 (Z. Jilani)
Advocate
(Counsel for the Plaintiff No.1- Objector)
100
IN THE HON'BLE HIGH COURT OF JUDICATURE OF ALLAHABAD
LUCKNOW BENCH, LUCKNOW
C.M.Application No.17 (O) of 2004
Sunni Central Board of Waqfs, U.P. Plaintiff No.1 Objector
In Re:
O.O.S. No.4 of 1989
Sunni Central Board of Waqfs, U.P. and others ..Plaintiffs
Versus
Gopal Singh Visharad (now dead) and others Defendants
ADDITIONAL OBJECTION, AS PER ORDER DATED
19-1-2004, AGAINST THE A.S.I. REPORT OF AYODHYA
EXCAVATION
The plaintiff No.1- Sunni Central Board of Waqfs, U.P. begs to
submit as under:-
1. That in addition to the objections already filed against the
A.S.I. report of Ayodhya Excavation these Additional
objections are being filed in pursuance to the order dated 19-
1-2004.
2. That at the very outset it may be pointed out that the papers
submitted by the ASI do not contain an essential document
Viz. the concordance of numbered layers in each trench with
the Periods attributed by ASI to the same in its Report. It is,
therefore, not at all clear as to how the ASI could make
statements in its Report about the finds like pottery type, terra
cotta artefacts, sculpute pieces and structural remains as
belonging to certain periods. This is not possible without
such a concordance covering all trenches. If such a
concordance does not exist and was not prepared at all, it
would mean that the ASI has made its statements about the
101
periods of structural remains and artefacts without any basis
in stratification just to please its masters. If, on the other
hand, a concordance was prepared, and it is now being
withheld or has been destroyed, it would suggest that the ASI
was itself apprehending that the same may go against their
findings and as such they did not want their report to be tested
on the basis of the same.
3. That even otherwise, from the ASI report and from other
informations / papers etc. supplied to this Hon'ble Court by
the ASI Team Leader, it can not be believed that the said
report could have been directly feeded in the Computer by the
authors of the same, as shown in the said report, and that
being so a serious doubt has been created about the
authenticity an genuineness of the said report and further
submissions about the same can be made only after getting
response of the ASI, as per order of this Hon'ble Court,
passed on 20-1-2004 on the objection filed by the plaintiffs
against the rely of Sri Hari Manjhi filed on 19-1-2004 against
the application under section 340 Cr.P.C. As such the
plaintiffs and other objectors may require to file further
objections after perusing the response of the ASI to the
aforesaid objections dated 20-1-2004.
4. That it is quite unimaginable that the entire report of
excavation was directly feeded on Computer by the so called
authors of the same without preparing any rough notes or
draft report and the efforts made by the ASI not to bring those
rough notes and draft reports etc. on record create serious
doubts about the genuineness and correctness of the said
report filed in this Hon'ble Court. In this respect the
objections filed by the plaintiffs on 20-1-2004, against the
reply of Sri Hari Manjhi filed on 19-1-2004 against the
102
application moved under section 340 Cr.P.C., may be treated
as a part of these Additional Objections.
5. That the stand taken by the ASI, for explaining the delay in
depositing the photographs taken from the Digital Camera
and Digital Cassettes of the same and the averments that the
photography of the Digital Camera was done as a parallel
reording with the manual photography and Video Filming,
was also misleading and this indicated atleast negligence and
carelessness of the ASI Team Leader. The very fact that
Digital Cassettes were said not to have been ever seen by the
ASI Team Leader also goes to establish as to how and to what
extent he was in the control of the said excavation. Even the
wrong mention of dates in these Digital Cassettes, as pointed
out in the reply of the plaintiffs dated 4-12-2003 filed against
the response of the ASI dated 1-12-2003, was of much
significance and the said reply may also be perused in this
respect and for other incidental matters to show the
performance of the said ASI Team Leader regarding the
preparation of this report.
BONES:-
6. That although this Hon'ble Court had taken care to ensure that
the Bones and Glazed Wares etc. may also be preserved so
that the same may be taken note of at the relevant time and
from the affidavit of Sri Hari Manjhi dated 12-11-2003 it
appears that apart from the sealed packets of bones preserved
in pursuance to the order dated 26-3-2003 there were some
other bones also which were mentioned on the register but the
ASI report makes only casual and cursory mention about the
said bones and perhaps no study and observation of the said
bones was ever done by any member of the ASI Team. This
deliberate omission on the part of the ASI team appears to be
103
the result of some preconceived notions about the report
which was to be given by the ASI because the study of bones
was bound to lead o the inference that the layer in which the
said bones were found could not belong to any period during
which the alleged existence of any temple could be claimed
as it was evident that in no temple, least of all in a Ram
Temple, animals could be said to have been eaten and their
bones left around.
7. That there is no chapter about the study of bones in the entire
report and a casual reference about the bones on page 270 in
the chapter of summary of results, without mentioning any
contextual relationship of the said bones with the structural
remains including those which were attributed by the ASI to a
temple, goes to establish that the said conclusion made by the
ASI (page 272) is totally unreliable, unfounded and incorrect.
In this respect it may also be possible that the original report
did contain such a chapter or sub chapter about the study/
observations regarding the bones but such information being
found to be inconvenient to the pre-determined assumptions
of the ASI, the same might have to be deleted from the report.
however for the convenience of the court and for a better
appreciation of the arguments to be advanced in this respect a
chart showing layers and trenches etc. where the said bones
were reported to have been found during the course of
excavation may be submitted at the time of arguments for the
disposal of the ASI Report.
8. That as the ASI has not offered any concordance of trench
wise layers with the periods assigned to those layers by the
ASI it was difficult to be accurate about the said periods.
This omission may be said to be on account of lack of
104
professionalism shown by the ASI Team but this may also be
deliberate in order to evade any close checking of their claims
and assumptions.
9. That from the ASIs own record we find that animal bones are
found in the layers of Period VI, in practically every trench,
whose layers have been attributed to specific periods by the
ASI. This may be seen from the following Table:-
Trench No. Layer No. assigned to Period VI
E-6 4 (below Period VII layer 3)
E-7 4 (below Period VII layer 2)
F-4/F5 4 (below period VII layer 3)
F-8 3
G-2 6, 6A
G-7 4
J-2/J-3 4
J-3 5
How so many animal bones could have been scattered about
in the layers of Period VI when allegedly a massive temple came
to exist at the site in this very period? is a question that finds no
answer in the Report. indeed, the doubts as to Floor 4, said to have
been allegedly laid out as a temple floor in this period, also gow
immensely when we find animal bones recorded in the context of
Floor 4in trenches J-7 and E-9. Furthermore, animal bones continue
to be found between Floor No.4 and Floor No.3 (claimed by ASI to
be a temple floor laid out in Period VII) in trenches No.H-7 and G-
7.
10. That the calm of ASI that the temple was rebuilt in period
VII, resting on Floor No.3, it is worth mentioning that the
animal bones were very much found in the layers of this
period also in the central trenches:-
105
Trench No. Layer No. belonging to period VII
E6 2
F8 2 above layer 3 belonging to period
VI
G-2 3
J3/J4 3
It is thus evident that animal bones have been found just
below Floor 3, belonging to this period (according to ASI) in trench
G-7 as well as in J-7 and H-7. What should have surprised the ASI
team still more is the presence of animal bones below Floor 2 (and
so between Floors 2 and 3) in G-7. Sine Floor 2 is alleged by ASI
to be the earliest mosque floor and Floor 3 to be that of the alleged
temple, how could these animal bones be said to have remained
there into a temple?
The number of animal-bone remains from these periods
would be far more numerous, if in the case of the central trenches,
where alone the ASI has identified layers with periods, the layers of
bone-finds had been universally specified and/or if the ASI were to
provide a concordance of layers with period in all the trenches.
Taken together, the animal-bone evidence clearly refutes any
suggestion that there could have been a temple on the site in
question in the period 11
th
to 16
th
century (ASIs periods VI and VII)
and the Floors 4 and 3 could have belonged to an alleged temple.
GLAZED WARES AND GLAZED TILES
11. That in its Report the ASI makes, both explicitly and
implicitly, an assertion that the kinds of glazed pottery and
tiles found at the disputed site in Ayodhya through its
excavations belong solely to the period after the arrival of the
Muslims, i.e. from the 13th
ce
ntury onwards.
In Chapter V (Pottery), in the section on Period VI
106
(Medieval Pre-Sultanate, 11
th
and 12
th
centuries- by the ASIs own
description and dating) not a single glazed potsherd is described
under Period VI (pages 104-108). The three periods VII, VIII and
IX (Medieval-Sultanate, Mughal and Late-and-Post- Mughal),
i.e. from 13
th
to 18
th
centuries, have their pottery described together
(pages 108-120). In the very beginning on page 108 it is stated:
The distinctive pottery of these periods is the glazed ware made of
well lavigated clay having ordinary terracotta core or whitish sandy
core. (Italics ours.)
12. That regarding the glazed tiles, discussed on pages 163-73 of
the Report, it is firmly stated (page 163): Some of the glazed
tile pieces have also been recovered from the depth which is
lower than the disputed structure, but from the levels of Period
VIII and IX only. (Italics ours.)
13. That there is thus a deep anxiety to project that all finds of
glazed pottery and glazed tiles come from such levels as
belong to the period after 1200 and preferably after 1526, so
that none may think that there are glazed potsherds and
glazed tiles anywhere about the levels where the ASI alleges a
temple was first built and then rebuilt. The ASI can get away
with this because nowhere in its Report does it provide any
concordance of its numbered layers trench-wise with the
Periods it has established.
14. That if we take up the evidence of the few trenches where the
ASI has had to indicate in the text and charts of Chapter III
(Stratigraphy and Chronology), the relationship between its
numbered layers and the Periods it has established, it would
be evident that there was no basis for the same. Now let us
take Trench J-3. On the two Charts (placed between pages
37-8) the following layers of this trench are assigned to
107