1278

injunction. But where the issue of title involves

complicated or complex questions of fact and law, or
where court feels that parties had not proceeded on the
basis that title was at issue, the Court should not decide
the issue of title in a suit for injunction. The proper course
is to relegate the plaintiff to the remedy of a full-fledged
suit for declaration and consequential reliefs. Referring to
the Madras High Courts' decision in Vanagiri (supra), the
Apex Court in Pramod Gupta (supra) observed that the
second suit would be barred only when the facts relating
to title are pleaded, when an issue is raised in regard to
title and parties lead evidence on the issue of title and the
Court instead of relegating the parties to an action for
declaration of title decides upon the issue of title and that
decision attains finality. However, the Apex Court made it
clear in para 20 of the judgment that the question relating
to res judicata was not before it but the question whether a
finding regarding title could be recorded in a suit for
injunction simpliciter, in the absence of pleadings and
issue relating to title is up for consideration. The said
judgment, in our view as such lends no credence to the
plaintiff's (Suit-4).
1051. To the same effect is the judgment in Williams Vs.
Lourdusamy & another (2008) 5 SCC 647 wherein the Apex
Court relied its decision in Sajjadanashin Sayed (supra).
1052. In State of Uttar Pradesh and another Vs. Jagdish
Sharan Agrawal and others (2009) 1 SCC 689 where a suit
was dismissed for non prosecution and there was no decision on
merits and also where the Court found that order IX Rule 9 was
not applicable, it was held that the principle of res judicata will
1279
not bar a subsequent suit being inapplicable.
1053. In Mahila Bajrangi Vs. Badribai (2003) 2 SCC 464 in
order to attract doctrine of res judicata, it was held that a
decision on an issue that has been and substantially in issue in
the former suit between the same parties which has been heard
and finally decided would be considered as res judicata and not
merely finding on every incident or collateral question to
arrive at such a decision that would constitute res judicata.
1054. In Bishwanath Prasad Singh Vs. Rajendra Prasad
and another (2006) 4 SCC 432 a deposit made under Section 83
of the Transfer of Property Act, 1882 was held to be procedural
in nature and not to constitute a decision on an issue directly and
substantially arises in an earlier suit so as to operate res judicata
even if before allowing the deposit to be made under Section 83,
the Court has passed a detailed order dealing the rival
submissions.
1055. In Srikant Vs. District Magistrate, Bijapur and others
(2007) 1 SCC 486 referring to its earlier judgments, the Court
held that the doctrine of constructive res judicata is confined to
civil action and civil proceedings and inapplicable to illegal
detention and the action brought for a writ of habeas corpus.
However, where an earlier application for habeas corpus has
been rejected, a second application on the same ground may not
be permissible but if there are some fresh grounds even such a
bar would not apply. This judgment, therefore, has nothing to do
with the issue of res judicata engaging attention in the present
suits.
1056. In Saroja Vs. Chinnusamy (2007) 8 SCC 329, the
Court summarized conditions to attract the doctrine of res
judicata under Section 11 C.P.C. as under :
1280
(i) There must be two suits-one former suit and the other
subsequent suit;
(ii) The Court which decided the former suit must be
competent to try the subsequent suit;
(iii) The matter directly and substantially in issue must be
in the same either actually or constructively in both the
suits.
(iv) The matter directly and substantially in issue in the
subsequent suit must have been heard and finally decided
by the Court in the former suit;
(v) The parties to the suits or the parties under whom they
or any of them claim must be the same in both the suits;
(vi) The parties in both the suits must have litigated under
the same title.
1057. In Saroja's case (supra) the interesting thing is that a
suit no. 233 of 1989 was filed on 19.4.1989 by one Saroja, her
minor children Suganthamani and Ramesh against her husband
Kuppusamy and his tenant for declaration of title and permanent
injunction in respect of a property A. During the pendency of
the suit, Kuppusamy, husband of Saroja, sold the suit property
by a registered sale deed dated 13.6.1990 for a consideration of
rupees one lac to the appellant Saroja. She (appellant) filed
another suit being O.S. No. 493 of 1990 for declaration of title
and permanent injunction claiming absolute ownership and
possession of the suit property purchased by her from
Kuppusamy claiming that she had been in continuous
possession of the suit property from the date of purchase and the
Patta, Chittha and adangal also stood in her name. The suit was
contested. When the later suit was pending, the earlier suit was
decreed ex-parte in favour of respondent no. 3 and her minor
1281
children. The subsequent suit was also decreed but in appeal the
decree was reversed and the judgment of the first Appellate
Court was confirmed by the High Court in second appeal. The
Apex Court also confirmed the above judgment holding that a
decree which is passed ex parte is as good as a decree passed
after contest.
1058. In Bharat Sanchar Nigam Ltd. and another Vs. Union
of India & others JT 2006 (3) SC 114, the application of
principle of res judicata in tax matters was considered and it was
held that every assessment year gives a new cause of action
since different assessment orders are to be passed and, therefore,
the order in respect to one assessment proceedings shall not
operate as res judicata for the subsequent assessment years. The
Court further held as under :
20. The decisions cited have uniformly held that res
judicata does not apply in matters pertaining to tax for
different assessment years because res judicata applies to
debar courts from entertaining issues on the same cause of
action whereas the cause of action for each assessment
year is distinct. The courts will generally adopt an earlier
pronouncement of the law or a conclusion of fact unless
there is a new ground urged or a material change in the
factual position. The reason why courts have held parties
to the opinion expressed in a decision in one assessment
year to the same opinion in a subsequent year is not
because of any principle of res judicata but because of the
theory of precedent of the precedential value of the earlier
pronouncement. Where facts and law in a subsequent
assessment year are the same, no authority whether quasi
judicial or judicial can generally be permitted to take a
1282
different view. This mandate is subject only to the usual
gateway of distinguishing the earlier decision or where the
earlier decision is per incuriam. However, these are fetters
only on a coordinate bench which, failing the possibility of
availing of either of these gateways, may yet differ with the
view expressed and refer the matter to a bench of superior
strength or in some cases to a bench of superior
jurisdiction.
1059. The discussion made above as also in the light of the
principles of law laid down in the various precedents, some of
which are discussed above, the conclusion is inevitable that in
no manner, it can be said that anything in Suit-1885 may be
construed or taken as to operate as res judicata in the suits up for
consideration before us. In fact, neither the principles of res
judicata nor estoppel is attracted in any manner as the conditions
precedent for attracting the said principles are completely
lacking. It cannot be said that either the suits are barred by
principle of res judicata or that Suit-1885 was filed on behalf of
the whole body of persons interested in Janam Asthan and,
therefore, all the Hindus are barred by the same. It also cannot
be said that the defendants are estopped from denying the title of
Muslim community including the plaintiff of Suit-4 to the
property in dispute in view of the judgments of Suit-1885.
1060. In Smt. Dhana Kuer Vs. Kashi Nath Chaubey, 1967
AWR 290 a Single Judge upheld the decision of the courts
below holding that the suit was barred by Section 11
Explanation VI. An earlier suit was filed by Kashi Nath,
Vindhayachal and Bindeshwari seeking a declaration that Lt.
Jadunandan, husband of Smt. Asharfa has no interest of the
property in suit except a right of maintenance. The trial court
1283
dismissed the suit but in appeal the suit was decreed and the
judgment was confirmed in second appeal also. Thereafter Smt.
Dhana Kuer, daughter of Jadunandan and Smt. Asharfa filed
another suit seeking a declaration that Jadunandan died as
separate member of the family. The Court held that the earlier
suit was contested in respect of a private right claimed in
common for oneself and others and, therefore, the judgment was
binding upon the successors who can be validly said to be
represented in the earlier case through the superior member. In
our view, this judgment has no application in the case in hand as
is evident from the facts noted above.
1061. Mst. Sudehaiya Kumar and another Vs. Ram Dass
Pandey and others, AIR 1957 All. 270 sought to be relied by
referring para 6 to contend that Explanation VI Section 11
C.P.C. is not confined only to the representative suits governed
by Order 1 Rule 2 but is applicable to other suits as well. This
principle has been explained by the Apex Court in Narayana
Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna
Prabhu, AIR 1977 SC 1268 giving an illustration where each
party in a partition suit claiming that the property, the subject
matter of the suit, is joint, asserts a right or title common to
others to make identical claims. If that very issue is litigated in
another suit and decided, the others making the same claim
cannot be held to be claiming a right in common for themselves
and others. Each of them in such a case must be deemed to
represent all those, the nature of whose claims and interests are
common and identical. The crux of the matter to attract
Explanation VI is that interest of a person concerned has really
been represented by the other; in other words his interest has
been protected after in a bonafide capacity. If there be any clash
1284
of interest between the persons concerned and is assumed
representative, or if the later deem to collusion, or, for any other
reason mala fide involves to defend the claims, it cannot be
considered to be a representative interest as held in Surayya
Begum (Mst) Vs. Mohd. Usman and others, 1991(3) SCC 114.
Sri Siddiqui is also relied upon Bidhumukhi Dasi Vs. Jitendra
Nath Roy and others, 1909 Indian Cases (Calcutta) 442;
Singhai Lal Chand Jain Vs. Rashtriya Swayam Sewak Sangh,
Panna and others, AIR 1996 SC 1211 (para 13); and
Shiromani Gurdwara Parbandhak Committee Vs. Mahant
Harnam Singh C. (Dead), M.N. Singh and others, AIR 2003
SC 3349 (paras 17 and 19) but we find nothing therein to help
him on this aspect of the matter.
1062. What we notice from the contentions of Sri Siddiqui is
that his plea of res judicata is not limited to the suit or issue in
suit having been raised, heard and decided but it is in respect to
certain facts which are contained in the record of Suit-1885 with
respect to the nomenclature of site or building or object and its
location etc. He claims that mention of the above amounts to an
admission by the plaintiff of Suit-1885 about the title, nature
etc. of the said building or site or locality even if it was not in
issue or nothing was decided on this aspect. Ignoring the issues
raised in Suit-1885 and the decision of the Court, certain
observations of the learned District Judge made during his
personal visit of the site are also being claimed as a finding of
fact binding on the parties not only to Suit-1885 but also to all
those who go and intend to visit the aforesaid entire site either
as worshipper or otherwise. The submissions is extremely far
fetched and too remote to be accepted and applied in the case in
hand.
1285
1063. We answer the Issues No. 5 (d) (Suit-1), 7(c) and 8
(Suit-4), and 23 (Suit-5) in negative.
1064. The Issue No. 29 (Suit-5) is:
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?
1065. It is not disputed that Suit No. 57 of 1978 was
dismissed for non compliance of Court's order with respect to
payment of Court fees. Neither any issue was raised nor argued
nor decided by the said Court. Therefore, bar of res judicata is
not at all attracted by the order dismissing Suit 57 of 1978
inasmuch as the said order dismissing the suit on technical
ground does not come within the purview of judgment or a
decision or issue as defined in Section 2 (9) CPC. The issue no.
29 (Suit-5) is therefore answered in negative and in favour of
plaintiffs.
1066. Issue no. 7(b) (Suit-4) only pertains to the capacity of
Mohammad Asghar in which he contested Suit-1885. It is not
disputed by the parties that initially when the suit was filed by
Mahant Raghubar Das there was only one defendant, i.e., the
Secretary, Council of India. Mohammad Asghar later on filed an
impleadment application claiming himself to be the Mutwalli of
Babari Masjid and the said application was allowed whereupon
he was impleaded as defendant no. 2. He pursued the case
accordingly before the trial court and the appellate court. It is
thus matter of record that in Suit-1885 Mohammad Asghar was
allowed to pursue the matter as Mutawalli of Babari Masjid. No
party has disputed this factum which is purely a matter of
record. What has been in fact suggested by the counsel for
1286
Hindu parties is that mere factum that Mohammad Asghar's
application was allowed in Suit-1885 permitting him to pursue
the matter as defendant no. 2 in his alleged capacity of
Mutawalli as Babari Masjid, whether it would bind the Hindu
parties in the present cases. This, however, is not the issue. The
only issue before us whether he was impleaded and pursued
Suit-1885 as Mutawalli of Babari Masjid which is a fact derived
from the record of Suit-1885 and, therefore, has to be decided in
affirmance particularly in view of the fact that nothing has been
said by the defendants (Suit-4) to disprove or contradict it.
Issue No. 7(b) (Suit-4) is decided accordingly in affirmance
and in favour of plaintiffs (Suit-4).
(D) Relating to Waqfs Act No. 13 of 1936, 16 of 1960 and
certain incidental issues:
1067. Under this category fall Issues No. 5(a), 5(b), 5(c),
5(d), 5(e), 5(f), 17, 18, 23, 24 (Suit-4); 9, 9(a), 9(b) and 9(c)
(Suit-1); 7(a), 7(b) and 16 (Suit-3) and 28 (Suit-5).
1068. Issues No. 17, 5(a), 5(c) and 5(d) (Suit-4) stood
decided on 21.04.1966. The said issues read as under:
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? If so, its effect?
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?
Were the proceedings under the said Act conclusive?
Are the said provision of Act XIII of 1936 ultra-vires as
alleged in written statement?
1069. Learned Civil Judge considered issues no. 17, 5(a) and
1287
5(c) (Suit-4) in detail vide his order dated 21.04.1966 and in
view of his findings recorded thereon, issue no. 5(d) (Suit-4)
was not pressed by the defendants.
1070. The order dated 21.4.1966 is as under :
All the above four suits were consolidated together
on 6.1.1964 on the basis of the joint statement of the
parties to all the above suits, which is available at paper
No. 184A, of the leading case Original Suit No.12 of 1961.
Issues covering the subject matter of all the above
mentioned four suits were commonly framed in the leading
case, Original Suit No. 12 of 1961 on 5.3.64, which are 16
in number. An additional issue No. 17 was framed on
17.4.65, which is available in the English Notes of the said
date in the leading case.
Issue No. 5 (d) was initially taken-up for disposal as
a preliminary issue for determination whether the question
involved in issue No. 5 (d) should be referred to the
Hon'ble the High Court, under Section 113 (Proviso)
C.P.C.; or not. Before an answer to issue No. 5 (d) could
be given by this court, the defendants of the leading case
presented an application paper No. 239/C; whereby they
prayed that the plaintiff be called upon to produce the
notification contemplated in Section 5 of the U.P. Moslim
Waqf Act. In response to the said application, the plaintiffs
through their application 242/G filed two papers 243/C
and 243/1A as the alleged Government Gazette
Identification made under Section 5 of the U.P. Moslims
Waqf Act. Paper No. 243/C is the attested copy of the
supplement to the Government Gazette of the United
Provinces, dated February 26, 1944-Part VIII; and paper
1288
No. 243/1A is the annexure to the said gazette notification
printed in Urdu title: Fehrist Sunni avaqaf wakai suo me
Muthadda Agra wa Oudh, jinpar bamoojib report
Commissioner Avaqaf, U.P. Moslims Waqf Act No.XIII of
1936 ki Dafat Aayad hoti hai.
Its title page further contains the following words :-
Fehrist hasl Dafa 5 Act XIII/1936.....................
In the said list of waqf property paper No.243/1A, the
property in dispute in the above four suits as alleged by the
plaintiffs of the leading case is mentioned at serial No. 26,
of page 11. The entire list of Sunni Waqf property of
Faizabad is mentioned at pages 10 and 11 of paper No.
243/1A. The proforma of the list as well as the entries
against item No. 26 of the said list are reproduced below :-
No.
Sumar
Name waquif
ya Waqf.
Name Mutwalli
Maujooda
Nauip (sic.
Nawyyet)
Jaidad
Mauqoofa
26 Badshah
Babar
Syed
Mohammad
Zaki Mutwalli
Masjid Babari
Qasba
Shahnawa,
Dak-Khana
Darshan Nagar
This column
stands blank
against entry
No. 26 of the
list paper No.
243/1A
Subsequently, the defendants 1, 3 and 4 of the
leading case filed their objections 247/C and 248/C against
the plaintiffs' aforesaid papers 243/C, 243/1A and 244/C.
In reply to the said objections of the defendants, the
plaintiffs filed their reply 250/C and 251/C against the
1289
defendants' aforesaid objections 248/C and 247/C
respectively.
In connection with the subject matter of applications
239/C, 240/C, 251/C and the alleged Gazette Notification
243/C and the list of waqf property 243/1A, leaned counsel
for the parties jointly stated that the following additional
issue may be framed and issue No. 17 which should be
decided first, because issue No. 5, with all its part recedes
to a secondary position in face of the following additional
issue No. 17. Their aforesaid joint request appears to be
sound, and, therefore, the following additional issue No. 17
was framed :-
ADDITIONAL ISSIUE NO. 17 :
Whether a valid notification under Section 5 (1) of
U.P. Moslims Waqf act No. XIII of 1936, relating to the
property in suits was ever done? Its effect?
Naturally issue No. 17, thus, become primarily the
preliminary issue.
Learned counsel for the parties were heard at length
in respect of issue No. 17. My findings under issue No. 17,
are given here-under :-
FINDINGS ON ISSUE NO.17
The words Waqf and Waqif have been defined
in Section 3(1) of Act XIII of 1936 Muslims Waqfs Act, U.P.
as below :-
Waqf means the permanent dedication or grant of
any property for any purposes recognized by the Mosalman
law or usage as religious, pious or charitable and where
no deed of waqf is traceable includes waqf by user; and a
waqif means any person, who makes such dedication or
1290
grant.
It will be evident from the above definition that the
word waqf is inseparably connected with the word any
property, because the 'Waqf' can come into existence only
in relation to any property. In this way, whenever the word
'Waqf is conveyed to any person, it must necessarily
convey simultaneously the idea or description or a tangible
connotation about the existence of any property covered
or included in the 'Waqf'. What I mean to say, is that if
some one wants another to know that a particular property
is waqf, it will be necessary for him to mention
simultaneously the description of at least tangible
connotation about the identity of the property of the waqf.
In the instant case, at hand, item No.26 (page 2 of the
list paper No.243/1A) is totally blank in its last column,
which was prescribed for mentioning the particulars of the
property to be known as 'waqf'' created by Badshah Babar.
The absence of any mention of the tangible identity of the
alleged waqf property of item No. 26, is a fatal-flaw in the
alleged Government Notification paper No.243/C read with
paper No. 243/1A; because no body living in the extensive
district of Faizabad or for that matter living in any part of
India, could or can reasonably make-out as to what is that
specific property, which was proposed to be enlisted as
Sunni Waqf'' property in item No. 26, page 11, of paper No.
243/1A. Consequently, a person interested in the property
in suits-living in a distant tract of Faizabad District or in
any other State of India could never understand that the
existing entries of item No. 26 of paper No. 243/1A,
unequivocally relate to the present property in suits. That
1291
being so, proviso No. 1, to clause 2 of Section 5 of U.P.
Moslims Waqf Act, 1936 and clause 3 of Section 5 of the
said Enactment cannot come into play, in respect of the
present property in suits; because the alleged Government
Gazette Notification paper No. 243/C read with paper No.
243/1A, at item No. 26, page 11, of paper No. 243/1A, was
meaningless; and because of the blankness of its last
column, the same did not and could not convey to the
public at-large or to for that matter to any one that the said
item No. 26 of 243/1A, related to the present property in
suits. The principle laid down in the ruling 'Harla. Vs. The
State of Rajasthan, A.I.R. 1951, Supreme Court, p. 467
clearly goes to show that such a notification is no effective
notification in the eyes of law or equity.
Learned counsel for the plaintiffs of the leading case
cited before me the ruling AIR 1959, Supreme Court, P.
198, 'Sirajul Haq Khan and Others Vs. The Sunni Central
Board of Waqf, U.P. and Others to show that it was
incumbent upon any Hindu also interested in the property
of item No. 26 or 243/1A, to bring a regular suit for
declaration within one year from 26.2.1944 when 243/1A
was published in the U.P. Government Gazette, according
to the provisions of clause 2, of Section 5 of Act XIII of
1936, and since none of the Hindus of India or Faizabad
District or the defendants of the leading case or the
plaintiffs of the connected three cases had brought any suit
for declaration within one year of 25.2.1944, challenging
the validity of item No. 26, page 11, of notification No.
243/1A; hence the defense of the defendants of the leading
case and the suits of the plaintiffs of the connected three
1292
cases are barred by clause 3, of Section 5 of Act XIII/1936;
whereby the aforesaid declaration of waqf by the waqf
Commissioner, U.P. at item No. 26 of paper No. 243/1A,
had become final and conclusive.
Bowing down to the principle laid down in the
aforesaid ruling of Hon'ble the Supreme Court, I
respectfully wish to point-out that the said ruling is
distinguishable from the facts of the present cases at-hand;
because in the aforesaid ruling, it was taken for granted
that a valid notification of the proposed waqf property was
duly made in the U.P. Government Gazette under Section
5(1) of Act XIII of 1936; whereas in the present cases, at-
hand, the alleged notification as contemplated in Section 5,
clause (1) of Act XIII of 1936, i.e. item No. 26 of the list
paper No. 243/1A, does not amount to a valid notification;
because the same does not convey the idea or the identity
or necessary particulars about the property proposed by
the waqf Commissioner to be listed as Sunni Waqf Property
dedicated by Badshah Babar. I have already pointed out
above that the definition of the word Waqf in Section
3(1) of Act XIII of 1936, necessarily relates to some
specific property. This means that a clear mention of the
property included in a waqf must necessarily be made
when making a mention of a particular waqf. This has not
been done in item No. 26 of paper No. 243/1A, inspite of
the fact that column No. 4, of the above noted proforma
was specifically prescribed for that end. In this connection,
I may profitably refer to the aforesaid ruling itself, which
has been cited on behalf of the plaintiffs of the leading
case, in which their Lordships of Hon'ble The Supreme
1293
Court have themselves held as under :-
That expression 'any person interested in a waqf'',
must mean 'any person interested in what is held to
be a waqf'. It is only persons, who are interested in a
transaction, which is held to be a waqf, who could
sue for declaration that the decision of the
Commissioner of Waqfs in that behalf is wrong and
that the transaction in fact is not a waqf under the
Act.
The above under-lined words, as used by their
Lordships of Hon'ble The Supreme Court, clearly point-out
that persons interested in a property held as waqf by the
Waqf Commissioner, will be duty bound to bring a suit for
declaration within one year from the date of notification
against the decision of the Waqf Commissioner if the
notification had conveyed to them, the identity or the
particulars of the proposed waqf property; and not
otherwise. As pointed out above, item No. 26, of the
notification list paper No.243/1A is utterly blank in its
column No. 4 due to which no body could understand as to
what property was intended to be included in the said item
No. 26. That being so, the said notification is meaningless;
and does not carry the sanctions provided in clause 3 of
Section 5 of Act XIII of 1936 with it.
The entry of the name of Badshah Babar as Waqif, of
a property in Faizabad District, as given in column No. 2,
of item No. 26 of paper No. 243/1A, is not enough to
convey the idea of the identify of the present property in
suits, because Badshah Babar was the Emperor of the
Moghal empire in India, who never resided in Faizabad
1294
District according to the pages of history of which a
judicial notice can be taken by this Court, Secondly, there
is no knowing as to how many waqfs were created by
Badshah Babar in various parts of Faizabad District.
In column No. 3 of item No. 26 of paper No. 243/1A
is given the name of the Mutwalli as Syed Mohammed Zaki
Mutwalli Masjid Babari, Qasba Shah Nawa, Dak-Khana
Darshan Nagar. A judicial notice of this fact can be taken
by this Court, that qasba Shah Nawa lying within the
jurisdiction of Post Office Darshan Nagar is at a distance
of about 8 to 10 miles from Ayodhya. As the said entry of
the particulars of the Mutwali stands in column 3 of item
No. 26 of paper No. 243/1A, it shows on the face of it that
Syed Mohammed Zaki might have been a Mutawalli of a
mosque built by emperor Babar in Qasba Shah Nawa, Post
Office Darshan Nagar. In this way, the entries of columns 2
and 3 also of item No. 26 of paper No. 243/1A are so vague
and mis-leading that a number of the public at-large,
residing in any part of our vast country India, who might
be interested in the present property in suits, could never
understands from the same that by the notification of item
No. 26, of paper No. 243/1A, which was the present
property in suits, which was proposed to be listed and
declared as Sunni Waqf property by the Commissioner of
Waqf U.P.
No explanation, whatsoever, has been offered on
behalf of the plaintiffs of the leading case at the time of
arguments on issue No. 17 or in the plaintiffs' reply, paper
No. 250/C as to why column No. 4, of item No. 26 of paper
No. 243/1A was left blank. In para 5 of the plaintiffs' reply
1295
paper No. 250/C, all that has been contended in that
connection is that there is no vagueness in the entry
relating to the mosque in suit at item No. 26, of paper No.
243/1A; because in its column No. 2, the name of Badshah
Babar is clearly mentioned and in its column No. 3, the
name of present Mutwalli Syed Mohammed Zaki Mutwalli
Masjid Babari, is mentioned with his residential address as
Qasba Shah Nawa, Post Office Darshan Nagar. It is
noteworthy that in column No.3, of entry No. 26, of paper
No. 243/1A, it is nowhere mentioned that Qasba Shah
Nawa, Post Office Darshan Nagar was the residential
address of Syed Mohammed Zaki. Consequently, it has
been simply twisted at the end of para 1 of paragraph 5, of
the plaintiffs' reply paper No. 250/2C, contains the
'Sakoonat' of residence of Syed Mohammed Zaki. As a
matter of fact, a perusal of column No. 3 of item No. 26 of
the notification list paper No. 243/1A, will clearly convey
to the reader that Syed Mohammed Zaki was a Mutwalli of
some mosque built by Babar in Qasba Shah Nawa Post
Office Darshan Nagar. As such, the aforesaid explanation
of the plaintiffs has no force.
At the end of para 5, in paper No. 250/3C, another
explanation of the above was offered on behalf of the
plaintiffs of the leading case as under :
The plaintiffs' allegation being that the building in
suit is mosque built by King Babar whose dynasty and
accounts of his conquest are matters of history well known
to all educated persons in India.
The aforesaid explanation in the first place, conveys
the impression that the plaintiffs of the leading case are
1296
themselves conscious of the fact that it was a fatal lacuna
in the aforesaid notification paper No. 243/C read with
paper No. 243/1A whereby the description or particulars
or identity of the waqf property mentioned in item No. 26,
of paper No. 243/1A was omitted in column No. 4 or for
that matter in any of the columns of item No. 26, of paper
No. 243/1A. Secondly, the aforesaid explanation is
confined to the alleged presumed knowledge of the
educated persons only-totally ignoring that even
uneducated persons whose number surpasses the number
of education persons in this country, had also a right
vested in them to assail the entries of item No. 26 of paper
No. 243/1A.
Thirdly, it will be too remote to presume that the
factum of the conquest of Emperor Babar over certain
parts of India, which one can derive from the pages of
popular books of history taught in schools and colleges
must necessarily convey the details of those properties or
buildings also, which were built by Emperor Babar in
various parts of this vast country at different times.
Lastly, it is to be remembers that it is not the case of
the plaintiffs of the leading case that property in suit was
originally a temple, which was ever conquered by Emperor
Babar, who got it remodeled in the shape of a mosque. The
case of the aforesaid plaintiffs is contained in their plaint
in leading case, as well as in the statement of the plaintiffs'
learned counsel made under order X, rule 2 C.P.C. on
20.1.64, at paper No. 187A, is that the property in suits is
the originally mosque, which was built for the first time at
its place, by Emperor Babar in 1528 AD in the shape of a
1297
mosque which he had dedicated to the followers of Islam
thereafter. That being so, the knowledge of the educated
persons regarding the conquest of Emperor Babar derived
from the pages of popular history books cannot profitably
utilized by the plaintiffs of the leading case because
according to the plaintiffs' own case, the property in suits
was not conquered property but a property which was
originally and for the first time built at its place by
Emperor Babar for use of the Moslim public.
In view of the facts and reasons discussed above, I
hold under issue No.17 that no valid notification under
Section 5(1) of U.P. Moslim Waqf Act No. XIII of 1936 was
ever made so far relating to the specific disputed property
of the present suits at-hand. The alleged Government
Gazette Notification paper No. 243/C read with the list
paper No. 243/1A do not comply with the requirements of a
valid notification in the eyes of law and equity as I have
already discussed above. The aforesaid two papers,
therefore, serve no useful purpose to the plaintiffs of the
leading cases.
In view of my above findings I hold that the bar
provided in Section 5(3) of U.P. Act No. XIII of 1936 does
not hit the defence of the defendants of the leading case
and their suits which are connected with the aforesaid
leading case. Issue No. 17 is answered accordingly.
In view of my findings given above, the subject
matter of issue No. 5 (a) also stands automatically decided
against the plaintiffs of the leading case; and in favour of
the defendants of the leading case and the plaintiffs of the
connected cases. Issue No. 5(a) also, therefore, stands
1298
answered accordingly.
My findings under issue No. 17, given above,
automatically answer issue No. 5(c) also, accordingly.
Consequently, issue No. 5(c) is answered in the negative.
In this way, only two parts (b and D) of issue No. 5
stand for decision now. Issue No. 5 (b) will be taken up for
disposal along with the remaining issues.
As regard issue No. 5 (d) counsel for the defendants
of the leading case to report today whether issue No. 5 (d)
is still prepared in face of my above findings under issues
Nos. 17, 5 (a) and 5(c)?
1071. After delivery of the aforesaid order, the learned
counsels for defendants in Suit-4 made the following noting :
In view of the finding of Court it is not necessary to
press Issue no. 5 (d) at present. As such Issue No. 5 (d) is
not pressed.
1072. After referring to the above statement of the learned
counsels for defendants (Suit-4), learned Civil Judge passed
following order in respect to Issue No. 5(d) (Suit-4).
Learned counsel for the defendants of the leading
case has endorsed above that he does not press issue no. 5
(d) in view of the findings on issue nos : 17, 5(a) and 5(c),
hence issue no. : 5(d) need not be answered by this Court.
Consequently put up on 25.5.66 for final heading of
the above mentioned cases.
1073. Issue No. 9 (Suit-1) is similar to Issue No. 5(a) (Suit-4).
It reads as under:
Is the suit barred by provision of Section 5(3) of the
Muslim Waqfs Act (U.P. Act 13 of 1936)?
1074. With respect to Issue No. 5(a) (Suit-4) the learned Civil
1299
Judge in his order dated 21.04.1966 has recorded the following
findings:
In view of my findings given above, the subject
matter of issue No. 5 (a) also stands automatically decided
against the plaintiffs of the leading case; and in favour of
the defendants of the leading case and the plaintiffs of the
connected cases. Issue No. 5(a) also, therefore, stands
answered accordingly.
1075. Issue No. 9 (Suit-1) being similar, also stands decided
accordingly in terms of the judgement dated 21.04.1966 of the
learned Civil Judge, i.e., in favour of the plaintiff (Suit-1).
1076. Issues No. 7(a) and 7(b) (Suit-3) pertain to the
notification under 1936 Act and read as under:
Has there been a notification under Muslim Waqf Act Act
No. 13 of 1936) declaring this property in suit as a Sunni
Waqf?
Is the said notification final and binding? Its effect?
1077. Issue No. 17 (Suit-4) which has been decided by the
detailed order dated 21.04.1966 of the learned Civil Judge is
similar to both the above issues. Since it has already been held
that no valid notification under Section 5(1) of 1936 Act in
respect to the property in dispute has been issued, both the
issues no. 7(a) and 7(b) (Suit-3) are answered in negative, i.e., in
favour of the plaintiffs (Suit-3) and against the defendants
therein.
1078. Issues No. 5(b) (Suit-4) and 9(a) (Suit-1) are similar
which read as under:
Has the said Act no application to the right of Hindus in
general and defendants in particular, to the right of their
worship?
1300
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?
1079. In the plaint (Suit-4) referring to 1936 Act, the plaintiffs
have averred in paras 9 and 10 as under:
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 Babari Masjid was built by Emperor Babar who was a
Sunni Mohammedan and that the Babari Mosque was a
public wakf. A copy of the Commissioner's report was
forwarded by the State Government to the Sunni Central
Board of Wakfs and the Sunni Central Board of Wakfs
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 Hindu temple.
1080. In the Additional Written Statement of defendants No.1
and 2 (Suit-4) para (g), (h) and (i) read as under.
(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 expected 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
1301
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 in intended 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 Waqfs, 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.
(i) 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.
1081. The written statement dated 25
th
January, 1963 of
defendant no.2, para 32 (g), (h) and (i) read as under :
(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 comprosed in the Waqf, the Government Revenue,
the expenses and whether it is one expected U/s 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 sec.2 of the Act. All these things he has to do
1302
in accordance with 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 intended 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 Waqfs 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.
(i) 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.
1082. Defendant No.13 and 14 Baba Abhiram Dass and
Pundarik Misra also in para 32(g) have said :
(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 Government Revenue,
the expenses and whether it is one excepted U/s 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 definition of Waqf in Sec. 3(1) of the
Act XIII of 1936, an Act which exclusively meant for
1303
certain clauses of Muslim Waqfs. The finality
conclusiveness is intended 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 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 was done in Section 10
of the Taluqdari Act.
(h) There has been no legal publication of alleged report
and hence no question of any finality arises.
(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 viz. by non Muslims.
1083. Defendant No.13 again in his written statement in paras
33 and 36 has pleaded as under :
33. THAT in 1936 the U.P. Muslim Waqfs Act, was
passed. It established two Central Boards of Waqfs in U.P.,
namely the Sunni 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
1304
Waqfs of its respective sect. There was no such notification
in respect of the 'waqf' of the 'mosque' in dispute.
Allegation to he 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
positive 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 instead claimed that it was
his Nankar for services rendered to the British, and did not
look after or manage the 'mosque' at all.
36. 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 Court's finding dated 21.4.1966 on issue No.17, in this
Suit, which has become final 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.
1084. Defendant No.17 in his (Additional) written
1305
statement dated 14
th
September, 1995 in para 11 has pleaded as
under :
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.
1085. With respect to Issue No. 9(a) (Suit-1) we find
pleadings in paras 25 and 26 of the written statement of
defendant no. 10 which read as under:
25. That the ownership of the mosque in question vests in
the God Almighty and the said mosque is a waqf property
and the waqf character of the said mosque cannot be
challenged by the plaintiff in this suit specially so when the
plaintiff had never challenged the entry of the said waqf
which was made in pursuance of the gazette notification
issued by the State Government of Uttar Pradesh under
provisions of the U.P. Muslim Waqf Act, 1936.
26. That the plaintiff's suit is barred even by the
provisions of the U.P. Muslim Waqf Act, 1936.
1086. With respect to applicability of Wakfs Act, Sri M.M.
Pandey, counsel for plaintiffs (Suit-5) has submitted:
(A) The Act 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 and Reasons
also says so and adds 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
1306
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 Commisioner to observe before initiating an inquiry.
If on particular facts or situation, Notice to a particular
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
1307
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 and 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 and 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).
(B) 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 Boards of
Wakf u/s 5(1) and commands the Boards, 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 signfies that Shia and
Sunni Boards 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.
1308
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.
(C) Over and above the procedure contained in Ss 4 and
5 for the Wakf Commisioner in making survey and
preparing lists of Wakfs and their publication by concerned
Wakf Boards, 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 and 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
1309
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 DS itself as
settled by the British Administration in 1885, in addition to
Ram Chabutra, Sita Rasoi Chabutra and other portions of
DA within the campus of DS. Admittedly, in 1934 during
Hindu-Muslim riots, Hindus had demolished certain
portions of DS, thereby exerting their rights over the
property to the knowledge of everyone concerned with DS.
The Govt. of U.P. even imposed punitive fine on Hindus for
demolishing portions of DS which was repaired by the
Govt. Thus the Hindu public in general (in addition to
Nirmohi Akhara) was interested in DS, and a general
public notice for Hindu worshippers too was called for.
None was given, hence the entire proceeding of the Wakf
Commissioner, declaring DS to be Sunni Wakf, was illegal.
(D) 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
1310
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 DS. 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 DS to be Wakf. Thirdly,
neither Nirmohi Akhara, who were admittedly in
possession of almost half portion of Platform (Chabutra) of
DS lying towards East of a grilled partition wall erected by
British administration in 1855 in addition to considerable
portions of campus of DS, including Ram Chabutra, was
given notice of the 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.
(E) 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
1311
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 cases.
1087. The creation of waqf was held valid and lawful by
the Prophet Mohammad. It is said that this rule was laid down
by Prophet himself and handed down in succession by Ibn Abu
Nafe and Ibn Omar. Omar got piece of land in Khaiber
whereupon he came to the Prophet and sought his counsel to
make the most pious use of it. The Prophet said if you like you
may make a waqf of it, as it is, and bestow it in benification.
Omar thereupon bestowed it in charity on his relatives, the poor
and slaves and in the path of God, and travellers in a way that
the land itself might not be sold, nor conveyed by gift, nor
inherited. It is said that waqf continued in existence for several
century until the land became waste. The prophet of Islam not
only declared such works to be valid and lawful but also
encourage their creation by dedicating his own property, the
little that he had, in favour of posterity. It would be useful to
refer as to what constitute a lawful waqf under Muslim Law. A
Division Bench decision of Calcutta High Court in Meer
Mahomed Israil Khan Vs. Sashti Churn Ghose and others, 19
ILR (Calcutta) (1892) 412 where Justice Ameer Ali answering
the question as to what constitute a lawful waqf under
Mussulman law observed that there must be a substantial
dedication for charitable or pious purpose. His Lordship further
observed:
1312
In the Mussulman system law and religion are
almost synonymous expressions, and are so intermixed with
each other that it is wholly impossible to dissociate the one
from the other: in other words, what is religious is lawful;
what is lawful is religious. The notions derived from other
systems of law or religion form no index to the
understanding or administration of the Mussalman law.
The words piety and charity have a much wider
signification in Mussalman law and religion than perhaps
in any other. Every good purpose, wujuh-ul-khair (to
use the language of the Kiafaya), which God approves, or
by which approach (kurbat) is attained to the Deity, is a
fitting purpose for a valid and lawful wakf. A provision for
one's children, for one's relations, and under the Hanafi
Sunni law for one's self, is as good and pious an act as a
dedication for the support of the general body of the poor.
The principle is founded on the religion of Islam, and
derived from the teachings of Prophet.
1088. Thereafter Justice Ameer Ali proceeded to quote
from Hedaya a commentary by Fath-ul-kadir said to be
frequently quoted in Fatawa-i- Alamgiri in great detail and it
would be useful to reproduce the same as under:
I will give here a few passages from some of the
best known authorities to show how utterly opposed the
view taken in this case is to the Muhammadan law. The
Fath-ul-kadir says-- Literally, it (the word wakf) signifies
detention, . . . . in law . . . according to the Disciples, the
tying up of property in such a manner that the substance
(asl=corpus) does not belong to anybody else excepting
God, whilst the produce is devoted to human beings, or is
1313
spent on whomsoever he [the wakif] likes; and the reason
of it is that, though a desire to approach the Deity (kurbat)
should form the ultimate motive of all wakfs, yet if, without
such an (immediate) desire, a person were to dedicate a
property in favour of the affluent (aghnia), the wakf would
be valid in the same way as a wakf in favour of the indigent
or for the purposes of a mosque: for, in giving to the
affluent there is as much kurbat as in giving to the poor or
to a mosque, and though the profit may not have been given
to the poor on the extinction of the affluent [still] it is wakf
and will be treated as wakf even before their extinction.
This principle is founded on the reason that the motive in
all wakfs is to make one's self beloved by doing good to the
living in this world and to approach the Almighty in the
next . . . . .
In wakf Islam is not a condition; consequently if a
Zimmi makes a wakf on his children and his posterity and
gives it at the end to the indigent, it is lawful [equally with
that made by a Moslem]. And it is lawful in such a case to
give the usufruct conditioned for the indigent to the poor of
both Moselms and Zimmis. The wakif may lawfully
condition to give the usufruct solely to the poor of the
Zimmis, and in that will be included Jews and Christians
and Magians; or he may condition that a special body of
them may get the produce . . . . whatever condition the
wakif makes if it is not contrary to the Sharaa, will be
lawful. And so long as the object is not sinful, the wakif
may give to whomsoever he likes . . . According to Abu
Yusuf the mention of perpetuity [or dedication to an object
of a permanent nature] is not necessary to constitute a
1314
valid wakf, for the words wakf and sadakah conjunctively
or separately imply perpetuity . . . In the Baramika it is
stated that, according to Abu Yusuf, when a wakf is made
in favour of specific individuals, on their extinction the
profits of the wakf will be applied to the poor . . . Among
the wakfs created by the Sahaba [Companions of the
Prophet], . . the first is the wakf of Omar (may God be
pleased with him) of his land called Samagh [at Khaibar] .
. that created by Zobair bin Awwam of his house for the
support of his daughter who had been divorced (by her
husband); . . that of Arkam Mukhzumi, on his children of
his house called Dar-ul-Islam at Safar (near Mecca),
where the Prophet used to preach Islam, and where many
of the disciples, among them Omar, accepted the Faith . . .
Baihaki in his Khilafiat has stated upon the authority of
Abu Bakr Obaidulla bin Zubair that [the Caliph] Abu Bakr
(may God be pleased with him) had a house in Mecca
which he bestowed in charity upon his children, and that it
is still in existence . . . And Saad ibn Abi Wakkas
bestowed in charity his houses in Medina and Egypt upon
his children, and that wakf is still in existence, and [the
Caliph] Osman (may God be pleased with him) made a
wakf of Ruma, which exists until to-day, and Amr Ibn al-
Aas [the Amru of European history], of his lands called
Wahat in Tayef and of his houses in Mecca and Medina
upon his children, and that [wakf] also is still continuing . .
. According to Abu Yusuf the wakif may lawfully retain the
governance of the trust, or reserve the profits for himself
during his lifetime. This has been fully dealt with by Kuduri
in two parts . . The jurists, Ahmed ibn-i-Abi Laila, Ibn
1315
Shabarma, Zahri, and others, agree with Abu Yusuf.
Mohammed alone holds a contrary opinion . . . Abu Yusuf
bases his rule upon the practice and sayings of the Prophet
himself who used to eat out of the produce of the lands
dedicated by him . Another proof in support of Abu
Yusuf's rule is that the meaning of wakf is to extinguish the
right of property in one's self and consign it to the custody
of God. Therefore, when a person reserves the whole or a
portion of the profits for himself, it does not interfere with
the dedication, for that also implies the approval of the
Almighty and is lawful . . . For example, if a man were to
dedicate a caravanserai and make a condition that he may
rest in it, or a cistern and condition that he should take
water from it, or a cemetery, and say that he may be buried
there, all this would be lawful. [Further] our Prophet (may
the blessings of God be with him) has declared that a man's
providing for his subsistence is a sadakah [an act of piety
or charity]. This Hadis has been substantially handed
down by a large number [of people] and is authentic, and
Ibn Maja states from Mikdam bin Maadi Karib that the
Prophet declared that no gain of a man is so meritorious as
that which he earns by the labour of his hands; and that
which he provides for the maintenance and support of
himself, the people of his household, his children, and his
servants, is a sadakah. And Imam Nisai from Balia and he
from Buhair has given the same tradition in these
words:-'Whatever thou providest for thyself is a sadakah.'
Ibn Haban in his Sahih states that Abu Said reports from
the Prophet that any one who acquires property in a lawful
manner, and provides therewith for his maintenance and
1316
for that of the other creatures of God, gives alms in the way
of the Lord. . . . And Dar Kutni reports from Jabir that the
Prophet (may God's blessing be with him) . . . declared
that all good acts are sadakah and that a man providing
subsistence for himself and his children and his belongings,
and for the maintenance of his position, is giving charity in
the way of God. . Tibrani has reported from Abi Imama
that the Prophet of God declared that a man making a
provision for his own maintenance, or of his wife, or of his
kindred, or of his children, is giving sadakah. And in the
Sahih of Muslim it is stated from Jabir that the Prophet
told a man to make a beginning with himself and give the
remainder to his kinsfolk.
1089. Justice Ameer Ali further on page 434 of the report
observed that the words charitable and religious must be
understood from a Mussulman and not from an English point of
view. His view was concurred by Justice O'Kinealy and His
Lordship also observed on page 437 of the report that it must
be an endowment for religious or charitable purposes; and if we
want to interpret a document of that kind, what we must naturally
look to is what is really meant by the words religious or
charitable among Muhammadans. As an example, we know
that the words charitable purpose in Scotland have quite a
different meaning from that in which they are used in England.
And so in India, in judging of what is really meant by the words
religious and charitable by a Muhammadan, we must take
the view which their law takes, and not what is to be found in the
English Dictionary.
1090. The term waqf literally means detention. The legal
meaning of waqf according to Abu Hanifa, is the detention of a
1317
specific thing in the ownership of the wakif or appropriator, and
the devoting or appropriating of its profits or usufruct in
charity on the poor or other good objects. According to the two
disciples, Abu Yusuf and Muhammad, waqf signifies the
extinction of the appropriator's ownership in the thing dedicated
and the detention of the thing in the implied ownership of God,
in such a manner that its profits may revert to or be applied for
the benefit of mankind. A waqf extinguishes the right of the
wakif or dedicator and transfers ownership to God. By
dedication and declaration the property in the wakif is divested
and vests in the Almighty.
1091. For the present purpose an idea of what constitute
waqf in Islam is sufficient and we need not to go into further
details. With respect to 'waqf' as recognised in Islamic Law,
since hereat we are concerned with the relevant legislative
aspect of the matter as it operated in India, we shall deal with
Islamic Law in this respect in detail while dealing with the issue
of validity of creation of waqf with respect to the property in
dispute.
Administration of Waqfs
1092. The concept of waqf in India got introduced with the
establishment of Muslim rule. It appear that earlier 'Sultan' was
the supreme authority over the administration of waqf properties
and ultimate power vested in him. There was some
decentralisation of the actual administration, control and
supervision of waqf institutions. At the Centre, the Sadar-us-
Sadar was entrusted with the overall control of waqfs
administration in the empire. His main work was to supervise
waqfs' administration and its properties. At the provincial level,
it was Sadr-e-Subha and in District, Sadre-e-Sarkar used to look
1318
into the administration of waqfs. At the local level, the waqfs
used to be looked after by Qazis who also looked after waqf
cases. The administration of individual waqf was the
responsibility of Mutawalli, which is still continuing. This kind
of arrangement finds mention in detail in Fatwai Alamgiri said
to be prepared under the command of Mughal Emperor
Aurangzeb.
1093. During the reign of Indian sub-continent by East
India Company, in the territory under their command so far as it
had charitable and religious institutions of Hindus and
Mohammedans, they were regulated by British Government
exercising visitatorial powers. In exercise of this power, the
British Government enacted several laws to prevent fraud and
waste, and to secure honest administration of such institutions.
The British Government did not interfere with the personal laws
of Hindus and Muslim like inheritance, succession, marriage
and religious institutions.
1094. In 1810, the general superintendence of religious
and charitable endowments vested in Board of Revenue and the
Board of Commissioners. Vide Bengal Regulations XIX of 1810
(The Bengal Charitable Endowment Public Building and
Escheats Regulations, 1810), the Board of Revenue was put in
possession of landed and other properties of charitable and
religious endowments, of both Muslims and Hindus. The
Regulations were obviously applicable to the area under the
authority of East India Company. The said Regulations,
however it appears, had no application to the area or to
properties situated in Oudh for the reason that under the
agreement of the East India Company with Nawab of Awadh
(Lucknow), the said area of Oudh continued to be ruled by the
1319
Nawabs till its annexation in 1856.
1095. After the transfer of power from East India
Company to British Government in 1857, a series of legislation
came including those which were enacted with an object of
proper administration of religious and charitable endowment.
The Religious Endowments Act, 1863 (Act 20 of 1863) was
passed and the properties relating to religious, charitable and
public endowments were placed under the control of trustees,
managers or superintendents. Local Committees were appointed
which exercise the powers of the Board of Revenue or local
agents.
1096. In respect to the Muslim in Oudh area, Oudh Laws Act
XVIII of 1876 was enacted. Vide Section 3 thereof, the laws to
be administered in the case of Mohammadans would be the
same as in East Panjub. The East Punjab was governed by
Punjab Laws Act IV of 1872 and Sections 5 and 6 thereof
provide as under:
5. In questions regarding succession, special property of
females, betrothal, marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions or any religious usage or
institution, the rule of decision shall be--
(1) any custom applicable to the parties concerned
which is not contrary to justice, equity or good
conscience and has not been, by this or any
other enactment, altered or abolished, and has
not been declared to be void by any competent
authority;
(2) the Mahomedan law, in cases where the parties
are Mahomedans,.... except in so far as such
1320
law has been altered or abolished by
legislative enactment, or is opposed to the
provisions of the Act, or has been modified by
any such custom as is above referred to.
6. In cases not otherwise specially provided for, the
Judges shall decide according to justice, equity and good
conscience.
1097. In respect to certain specified waqfs in Husainabad
area in Lucknow (Oudh), Husainabad Endowment Act, 1878
(Act 15 of 1878) was enacted.
1098. In 1908, by enacting new Code of Civil Procedure,
Sections 92 and 93 were incorporated for the proper
administration of trusts. Under these sections two or more
persons having any interest in a trust could file a suit with the
prior permission of the Advocate General in relation to a matter
regarding the appointment and removal of trustees, matters
relating to the sale, exchange or mortgage of trust property, etc.
1099. Upto 1913 a waqf was valid if the effect of the deed
of wqkf was to keep the property in substance to charitable uses.
In Abul Fata Mohammad Vs. Rasamaya, 22 IA 76 it was held
by Privy Council that if the primary object of the waqf was the
aggrandizement of the family and the gift to charity was illusory
whether from its small amount or from its uncertainty and
remoteness, the waqf, for the benefit of the family was invalid
and no effect could be given to it. This decision caused lot of
protest and dissatisfaction amongst the Muslim communities in
India since the said decision in particular paralyzed the power of
Muslims to make a settlement in favour of family, children and
descendants or what is known as waqf-alal-aulad. Consequently,
the matter was represented by the Indian Muslims before Lord
1321
Curzon, the then Viceroy and Governor General of India
canvassing that for family settlement by way of waqf from the
time of Prophet Mohammad down to the present time an
unbroken chain of evidence existed to show that the law of
waqf-alal-aulad existed in all countries having Muslim
population like Arabia, Central Asia, Persia, Afghanistan and
India. It was represented that the precepts of the Prophet support
the family settlement amongst Muslim by way of waqf. It is said
that the following precepts of the Prophet were cited:
The apostle of God said:
When a Mussalman bestows on his family and
kindered, for the intention of rewards, it becomes
alms, although he has not given to the poor, but to
his family and children.
The apostle of God said:
There is one Dinar which you have bestowed
in the Road of God, and another in freeing a slave,
and another in alms to the poor, and another given to
your family and children; that is the greatest Dinar
in point of reward which you gave to your family.
The apostle of God said:
The most excellent Dinar which a man
bestows is that which he bestows upon his own
family. Omme Salma says, I said to the Prophet, is
there any good thing for me of rewards, for my
bestowing on the Sons of Abu Salmas. His sons are
no otherwise than mine. The Prophet said: Then
give to them, and for you are rewards of that you
bestow upon them
The apostle of God said:
1322
Giving alms to the poor has the reward of
one alms, but that given to kindered has two
rewards; one the reward of alms, the other the
reward of relationship. The Prophet of God
declared that a pious offering to ones family (to
provide against their getting into want) is more pious
than giving alms to beggars.
1100. Accepting the claims of Muslims in India, Mussalman
Waqf Validating Act, 1913 (Act No. 6 of 1913) (hereinafter
referred to as the 1913 Act) was enacted to validate the waqf
created for the benefit of the members of family i.e. waqf-alal-
aulad. This Act came into force on 07.03.1913. The preamble of
1913 Act shows that it was enacted to declare the rights of
Muslims to make settlements of property by way of waqf in
favour of their family, children and decedents. The term waqf
was defined in Section 2 (1) as under :
2. .......................
(1) Waqf means the permanent dedication by a
person professing the Mussalman faith of any
property for any purpose, recognized by the
Mussalman law as religious, pious or charitable.
1101. Section 5 of 1913 Act states that nothing therein shall
affect any custom or usage whether local or prevalent among
Musalman or any particular class or sect. The definition of
'Waqf' under 1913 Act recognises the concept of waqf as known
in Shariyat Law.
1102. As already stated, a waqf therefore is an unconditional
and permanent dedication of property with implied detention in
the ownership of God in such a manner that the property of the
owner may be extinguished and its profit may revert to or be
1323
applied for the benefit of mankind except for purposes
prohibited by Islam.
1103. It may, however, be clarified at this stage that a waqf is
distinct from Sadaqah, Hiba and trust. In Islamic Law- Personal
by B.R.Verma first published in 1940 (6
th
Edition published in
1986) (reprinted in 1991 by M.H.Beg and S.K.Verma) identify
the above distinction on page 630-631 of the book as under :
Sadaqah Wakf
(1)The corpus itself may be
consummed.
(2)It is only a donation.
(3)The legal estate and not
merely beneficial interest
passes to charity to be held
by trustees appointed by the
donor. The trustee can
dispose of the corpus itself.
(1)The income only can be
sent.
(2)It is an endowment.
(3)The legal estate is
transferred to God. It does
not vest in the trustee or
mutawalli who cannot deal
with the corpus.
1104. The distinction between waqf and sadaqah is that in the
case of former the income only can be spent while in the case of
latter the corpus of the property may be consumed.
Hiba Wakf
(1)It relates to absolute interest
in the subject of the gift, the
donee having a right not
only to spend the usufruct
but also the property itself.
(2)The donee is a human being.
(3)There are no limitations as
to the object for which it
can be made.
(4)A hiba to an unborn person
is invalid.
(1)It is only the usufruct which
can be spent and the corpus
cannot be disposed of except
under very limited
conditions.
(2)The ownership is
transferred to God.
(3)It is made for the benefit of
mankind.
(4)A wakf may be made in
favour of a succession of
unborn persons.
Trust Wakf
(1)No particular motive is (1)It is generally made with a
1324
necessary.
(2)The founder may himself be
a beneficiary.
(3)It may be for any lawful
object.
(4)the property vests in the
trustee.
(5)A trustee has got larger
power than a mutawalli.
(6)It is not necessary that a
trust maybe perpetual,
irrevocable or inalienable.
(7)It results for the benefit of
the founder when it is
incapable of execution and
the property has not been
exhausted.
pious, charitable or
religious motive.
(2)The wakf cannot reserve any
benefit for himself (except to
some extent under Hanafi
law).
(3)The ultimate object must be
some benefit of mankind.
(4)The property vests in God.
(5)A mutawalli is only a
manager or superintendent.
(6)A wakf is perpetual,
irrevocable and inalienable.
(7)The cypres doctrine is
applied and the property
may be applied to some
other object.
1105. Apparently, Islam is not a necessary condition for
constitution of a waqf. It may be made by a Muslim or a non
Muslim but the necessary condition for creation of a waqf is the
object thereof. Ameer Ali in his book on Mohammedan Law
(Fourth Edition) Volume I at page 200 has said Any person of
whatever creed may create wakf, but the law requires that the
object for which the dedication is made should be lawful
according to the creed of the dedicator as well as the Islamic
doctrines. Divine approbation being the essential in the
constitution of a wakf if the object for which a dedication is made
is sinful, either according to the laws of Islam or to the creed of
the dedicator it would not be valid. Thus a non Muslim may
also create a waqf for any purpose which is religious under the
Mohammedan Law. But the object of the waqf must be lawful
according to the religious creed of the maker as well.
1325
1106. Section 3 of 1913 Act empowers any person
professing muslim faith to create a waqf in all other respects in
accordance with the provisions of Muslim Law for the following
among other purposes, i.e., for the maintenance and support,
wholly or partially of his family, children and descendants etc. It
would be useful to reproduce Section 3 as under :
3. It shall be lawful for any person professing the
Mussalman faith to create a waqf which in all other
respects is in accordance with the provisions of Mussalman
law, for the following among other purposes :-
(1)for the maintenance and support wholly or partially
of his family, children or descendants, and
(2)where the person creating a waqf is a Hanafi
Mussalman, also for his own maintenance and
support during his lifetime or for the payment of his
debts out of the rents and profits of the property
dedicated :
Provided that the ultimate benefit is in such cases
expressly or implicitly reserved for the poor or for
any other purpose recognised by the Mussalman law
as a religious, pious or charitable purpose of a
permanent character.
1107. 1913 Act, however, having not been given retrospective
effect did not remove the hardship in its entirety created by the
decision of Privy Council in Abul Fata Mohammad (supra)
and in some later cases it was held that 1913 Act could not be
construed as validating deeds executed before 07.03.1913.
1108. On 05.08.1923 the Mussalman Waqf Act, 1923 (Act
No. XLII of 1923 (hereinafter referred to as 1923 Act) was
enacted with the object of better management of waqf property
1326
and ensuring maintenance of proper accounts and its publication
in respect of such properties. The aforesaid Act was applicable
to the whole of British India at the relevant time and in 1948 the
said words were substituted by the words all the Provinces of
India. The term benefit, mutwalli and waqf were defined
in Section 2 (a) (c) and (e) of 1923 Act, as under :
2. In this Act, unless there is anything repugnant in the
subject or context,-
(a)benefit does not include any benefit which a
mutwalli is entitled to claim solely by reason of his being
such mutwalli;
(b) ............................................
(c)mutwalli means any person appointed either
verbally or under any deed or instrument by which a
wakf has been created or by a Court of competent
jurisdiction to be the mutwalli of a wakf, and
includes a naib-mutwalli or other person appointed
by a mutwalli to perform the duties of the mutwalli,
and, save as otherwise provided in this Act, any
person who is for the time being administering any
wakf property;
(d).............................................
(e)wakf means the permanent dedication by a
person professing the Mussalman faith of any
property for any purpose recognised by the
Mussalman law as religious, pious or charitable, but
does not include any wakf, such as is described in
section, 3 of the Mussalman Wakf Validating Act,
1913, under which any benefit is for the time being
claimable for himself by the person by whom the
1327
wakf was created or by any of his family or
descendants.
1109. Section 3 of 1923 Act placed an obligation on a
Mutwalli to furnish certain particulars in respect to waqf
property, income and expenses etc. within a period of six
months from the date of commencement of the 1923 Act to the
Court within the local limits of whose jurisdiction the property
of the waqf, for which the said person is mutwalli, is situated.
Non compliance of Section 3 was made penal vide Section 10 of
the said Act.
1110. Section 10 of 1923 Act provides consequences on
failure to comply with the provisions of Sections, 3, 4 and 5 and
reads as under:
10. Penalties.--Any person who is required by or
under Sec. 3 or Sec. 4 to furnish statement of particulars or
any document relating to a wakf, or who is required by Sec.
5 to furnish a statement of accounts, shall, if he, without
reasonable cause the burden of proving which shall lie
upon him, fails to furnish such statement or document, as
the case may be, in due time, or furnishes a statement
which he knows or has reason to believe to be false,
misleading or untrue in any material particular, or, in the
case of a statement of accounts, furnishes a statement
which has not been audited in the manner required by Sec.
6, be punishable with fine which may extend to five
hundred rupees, or, in the case of a second or subsequent
offence, with fine which may extend to two thousand
rupees.
1111. A question arose as to whether the Court while
exercising power under Section 10 can proceed to look into the
1328
question as to whether any property which is denied to be a
waqf property can be investigated and looked into so as to find
out whether it is a waqf property within the meaning of Section
2(e) of the Act or not. This question came to be considered
before a Hon'ble Single Judge of Patna High Court in (Syed) Ali
Mohammad Vs. Collector of Bhagalpur, AIR 1927 Patna 189.
The question was that of application of 1923 Act in respect to
property where there was a dispute whether it was a waqf
property or not. The petitioner before the High Court return a
notice issued by the Collector including petitioner's property in
the list of waqf properties stating that he was not incharge of
any waqf property as defined in Section 2(e) of 1923 Act
whereupon the Collector referred the matter to the District Judge
who held the property as a waqf property and the question was
whether the order of District Judge was within jurisdiction or
not. It was held by the Hon'ble Patna High Court that there is no
provision in the Act authorizing the Court, as defined in the Act,
to determine as to whether any property which if denied to be a
waqf property, is waqf property, within the meaning of the Act.
The Act neither authorizes the Court to summon witnesses or to
take evidence nor any procedure is prescribed for determining
the question as to whether any property is a waqf property and
no provision of appeal or revision is made if any such decision
is made. It held that the Act applies to admitted waqfs and not to
the properties which are denied to be the waqf properties.
1112. However, this view did not find favour with a Full
Bench decision of Oudh Chief Court in Mohammad Baqar and
another Vs. S. Mohammad Casim and others, AIR 1932
Oudh 210 where it was held that mere denial of a property as
constituting a waqf property by a person would not deprive
1329
jurisdiction to the Court to consider whether the property is a
waqf property under 1923 Act or not, otherwise, it would defeat
the very objective of the Act. In the majority decision, the Court
said that it is a recalcitrant Mutawalli to whom the Act intends
to reach and if the jurisdiction of the Court is ousted as soon as a
Mutawalli who has failed to observe the provisions of the Act
denies the alleged waqf that would defeat the very objective of
the legislature. It was held that the application of 1923 Act does
not depend upon the attitude which a Mutawalli may take with
regard to origin of an alleged waqf. The Court said:
From the definition of the word wakf in Cl. (e), S.
2 of the Act it is clear that a wakf of the nature described in
S. 3, Mussalman Wakf Validating Act, 1913, is excluded
from the operation of the Act of 1923. With a view to
determine whether an alleged waqf is inside or outside the
scope of the Act the Court must make some inquiry. The
inquiry may be limited merely to an interpretation of the
instrument creating the wakf if there is any or to the
scrutinizing of the terms of an oral wakf. (page211)
1113. The Court further held:
It is true that the Act does not lay down any
obligation on the Court as to the limits to which it should
carry any inquiry which it may wish to make and no party
is entitled to compel the Court to carry inquiry up to any
particular stage. Indeed the Court may refuse to enter into
any inquiry on the ground that the allegations of the parties
disclose a controversy fit to be determined in a regular
suit, and this, in my judgment, explains the absence of any
special rule of procedure. The Court is invested with a
discretion but it cannot, in my opinion, refuse to look into
1330
the merits of the case and stay its hands on the sole ground
that the alleged mutawalli does not admit the alleged
wakf. (page 213)
1114. It is not the case of any of the parties that any such
statement was furnished in respect to the property in dispute in
the Court as defined under Section 2 (b) of the said Act and the
provisions of the said Act were complied with at all. It is not the
case of the parties, i.e., the plaintiff, Suit-4, or in general,
Muslim parties, that the aforesaid Act was applicable to the
property in dispute or that the compliance of the said Act was
made by the concerned Mutawalli. In the absence of any
pleadings in respect to 1923 Act, we have no hesitation in not
considering the matter in the light of 1923 Act inasmuch as if
that be so first of all it would be necessary to consider whether
the property in question was a waqf made in 1528 and continued
to be so thereafter and secondly whether any person as
Mutawalli was in possession of the property in question in 1923
and thereafter. We have not been shown any material to show
the existence of the above facts and even if so then why and in
what circumstances the provisions under 1923 Act were not
complied with is also not explained. We also find that it is case
of none that Section 12 or 13 of 1923 Act at the relevant time
were attracted to the property in dispute and/or that the said
property was exempted by the competent government from the
operation of 1923 Act.
1115. The next legislation is Mussalman Waqf Validating
Act (XXIII) of 1930 which made 1913 Act applicable to waqfs
created before the commencement of 1913 Act with the rider
that the transactions already completed in respect to right, title,
obligations, liability etc. shall not be affected in any manner.
1331
1116. Then came the 1936 Act (Act No. 13 of 1936)
published in U.P. Gazette dated 20.03.1937. The above
enactment was made for the better governance, administration
and supervision of certain classes of Muslim waqf in the United
Provinces of Agra and Oudh. Section 1 of 1936 Act provides for
the commencement, and extent; and reads as under:
(1) Short title, commencement and extent.--(1) This
Act shall be called the United Provinces Muslim Waqfs
Act, 1936.
(2) This section and sections 2 to 4 shall come into
force at once. The rest of the Act shall not come into force
until such date as the local Government may, by
notification in the Gazette, appoint in this behalf.
(3)It shall extend to the whole of the United
Provinces of Agra and Oudh.
1117. We may mention at this stage that Section 1(2)
enforces only Sections 2 to 4 at once and the rest of the Act was
to come into force on such date as the local Government by
notification in the gazette may appoint in this behalf. Sections 5
to 71 of the said Act came into force on 01.07.1941vide
notification dated 20.06.1941 published in Government Gazette
of the United Provinces Vol. LXIII, No. XXVI, Part-1, page 311
dated 20.06.1941 which reads as under:
In exercise of the powers conferred by sub-section
(2) of section 1 of the United Provinces Muslim Waqfs Act,
1936 (U.P. XIII of 1936), the Governor of the United
Provinces is pleased to declare that sections 5 to 71 of the
said Act shall come into force on the 1
st
day of July, 1941.
1118. The reason for delay in notification giving effect to
Sections 5 to 71 of 1936 Act came to be noticed in Badrul
1332
Islam Vs. The Sunni Central Board of Waqf, U.P. Lucknow,
AIR 1954 Allahabad 459 in para 8 of the judgement as under:
It is true that the provisions of Ss. 5 to 71 of the Act did
not come in force till some time in 1941. This fact has no
bearing because it appears that the late enforcement of
these provisions was due to the fact that what was provided
by these provisions could not have been given effect to till
the Central Board had found on investigation through
proper agency the waqfs which were subject to the Act. It
was no use enforcing these provisions which could not
have been given effect to. It was for this reason that these
sections were later enforced.
1119. It is said that the Commissioner of Waqf made
survey under Section 4 and submitted his report. The Boards
proceeded further by issuing notifications in respect to Sunni
Waqfs on 26.02.1944 and in respect of Shia Waqfs on
15.01.1954 published in the gazette dated 23.01.1954, we are
proceeding further presuming as if the rest of the provisions of
the Act were made operative and will try to find out the answer
to the above issues accordingly.
1120. Section 2 of 1936 Act provides for applicability of
the Act to certain category of waqfs and inapplicability to some
other category of waqfs and reads as under:
2. Applicability of the Act.-(1) Save as herein
otherwise specifically stated, this Act shall apply to all
waqfs, whether created before or after this Act comes into
force, any part of the property of which is situated in the
United Provinces.
(2) This Act shall not apply to-
(i) a waqf created by a deed, if any, under the
1333
terms of which not less than 75 per cent, of the total
income after deduction of land revenue and cesses
payable to Government of the property covered by
the deed of waqf, if any, is for the time being payable
for the benefit of the waqif or his descendants or any
member of his family.
(ii) a waqf created solely for either of the
following purposes :
(a) the maintenance and support of any person
other than the waqif or his descendants or any
member of his family,
(b) the celebration of religious ceremonies
connected with the death anniversaries of the waqif
or of any member of his family or any of his
ancestors,
(c) the maintenance of private immabaras,
tombs and grave yards, or
(d) the maintenance and support of the waqif
or for payment of his debts, when the waqif is a
Hanafi Musalman; and
(iii) the waqfs mentioned in the schedule :
Provided that if the Mutawalli of a waqf to which this
Act does not apply wrongfully sells or mortgages, or
suffers to be sold in execution of a decree against
himself, or otherwise destroys the whole or any part
of the waqf property, the Central Board may apply
all or any of the provisions of this Act to such waqf
for such time as it may think necessary.
Explanation. A waqf which is originally exempt
from the operation of this act may, for any reason
1334
subsequently, become subject to such operation, for
example, by reason of a higher percentage of its
income becoming available under the terms of the
deed for public charities.
1121. The Schedule referred to in Section 2(2)(iii) of 1936
Act is as under :
1. Waqfs governed by Act XV of 1878.
2. Wazir Begam Trust, Lucknow.
3. Agha Abbu Sahib Trust, Lucknow.
4. Shah Najaf Trust, King's side, Lucknow, and Queen's
side, Lucknow.
5. Kazmain Trust, Lucknow.
1122. Section 3 contains certain definitions as under:
3. In this Act, unless there is anything repugnant in
the subject or context--
(1) Interpretation clauses.--Waqf means the
permanent dedication or grant of any property for any
purpose recognized by the Musalman law or usage as
religious, pious or charitable and, where no deed of waqf is
traceable, includes waqf by user, and a waqif means any
person who makes such dedication or grant.
(2) Beneficiary means the person or object for
whose benefit a waqf is created and includes religious,
pious or charitable objects, and any other object of public
utility established for the benefit of the Muslim community
or any particular sect of the Muslim community.
(3) Mutawalli means a manager of a waqf or
endowment and includes an amin, a sajjadanashin, a
khadim, naib mutawalli and a committee of management,
and, save as otherwise provided in this Act, any person
1335
who is for the time being in charge of or administering, any
endowment as such.
(4) Family includes--
(a) Parents and grand-parents.
(b) Wife or husband.
(c) Persons related through any ancestor, male
or female.
(d) Persons who reside with, and are
maintained by, the waqif, whether related to him or
not.
(5) Property includes Government securities and
bonds, shares in firms and companies, stocks, debentures
and other securities and instruments.
(6) Prescribed means prescribed by rules made
under this Act.
(7) Court means, unless otherwise stated either
expressly or by implication, the court of the District Judge
or any other court empowered by the local Government to
exercise jurisdiction under this Act.
(8) Net income means the total income minus the
land revenue and other cesses payable to Government and
to local bodies:
Provided that in the case of land paying land revenue
the recorded income shall be deemed to be the total
income.
1123. Chapter I which has Sections 4 to 24 deals with
Survey of Waqfs and Central Board of Waqfs. Section 4 deals
with the Survey of Waqfs; Section 5 deals with the
Commissioner's report and its publication in the Gazette; and,
read as under:
1336
4. (1) Survey of waqfs.--Within three-months of the
commencement of this Act the local Government shall by
notification in the Gazette appoint for each district a
gazetted officer, either by name or by official designation
for the purpose of making a survey of all waqfs in such
district, whether subject of this Act or not. Such officer
shall be called the Commissioner of waqfs.
(2) The Local Government may, from time to time
when necessary cancel any appointment under sub-section
(1) or make a new appointment.
(3) The Commissioner of waqfs shall, after making
such inquiries as he may consider necessary, ascertain and
determine--
(a) the number of all Shia and Sunni waqfs in
the district;
(b) the nature of each waqf;
(c) the gross income of property comprised in
the waqf;
(d) the amount of Government revenue, cesses
and taxes payable in respect of waqf property;
(e) expenses incurred in the realization of the
income and the pay of the mutawalli of each waqf if
the waqf is not exempted under section 2; and
(f) whether the waqf is one of those exempted
from the provisions of this Act under section 2:
Provided that where there is a dispute whether a
particular waqf is Shia waqf or Sunni waqf and there are
clear indications as to the sect of which it pertains in the
recitals of the deed of waqf, such dispute shall be decided
on the basis of such recitals.
1337
(4) In making such inquiries as aforesaid the
Commissioner of waqfs shall exercise all the powers of a
civil court for summoning and examining witnesses and
documents, making local inspections, appointing
commissioners for examination of witnesses, examining of
accounts and making local investigations.
(5) The Commissioner of waqfs shall submit his
report of inquiry to the local Government.
(6) The total cost of carrying out the provisions of
this section shall be borne by the mutawallis of all waqfs to
which the Mussalmans Waqfs Act, 1923, applies in
proportion to the income of the property of such waqfs
situated in the United Provinces.
(7) Notwithstanding anything in the deed or
instrument creating any waqf, any mutawalli may pay from
the income of the waqf property any sum due from him
under sub-section (6).
(8) Any sum due from a mutawalli under sub-section
(6) may, on a certificate issued by the local Government, be
recovered by the Collector in the manner provided by law
for recovery of an arrear of land revenue.
5. Commissioner's report.--
(1) The local Government shall forward a copy of the
Commissioner's report to each of the Central Boards
constituted under this Act. Each Central Board shall as
soon as possible notify in the Gazette the waqfs relating to
the particular sect to which, according to such report, the
provisions of this Act apply.
(2) The mutawalli of a waqf or any person interested
in a waqf or a Central Board may bring a suit in a civil
1338
court of competent jurisdiction for a declaration that any
transaction held by the Commissioner of waqfs to be a
waqf is not a waqf, or any transaction held or assumed by
him not to be a waqf is a waqf, or that a waqf held by him
to pertain to a particular sect does not belong to that sect,
or that any waqf reported by such Commissioner as being
subject to the provisions of this Act is exempted under
section 2, or that any waqf held by him to be so exempted is
subject to this Act:
Provided that no such suit shall be instituted by a
Central Board after more than two years of the receipt of
the report of Commissioner of waqfs, and by a mutawalli
or person interested in a waqf after more than one year of
the notification referred to in sub-clause (1):
Provided also that no proceedings under this Act in
respect of any waqf shall be stayed or suspended merely by
reason of the pendency of any such suit or of any appeal
arising out of any such suit.
(3) Subject to the final result of any suit instituted
under sub-section (2) the report of the Commissioner of
waqfs shall be final and conclusive.
(4) The Commissioner of waqfs shall not be made a
defendant to any suit under sub-section (2) and no suit
shall be instituted against him for anything done by him in
good faith under colour of this Act.
1124. Sections 6, 7 and 8 of 1936 Act show that there shall
be two Waqf Board namely, Shia Central Board and Sunni
Central Board of Waqf. The constitution etc. thereof is provided
from Section 6 to 17. Section 18 deals with the functions of the
Central Board and reads as under:
1339
18. Function of the Central Board.- (1) The general
superintendence of all waqfs to which this Act applies shall
vest in the Central Board. The Central Board shall do all
things reasonable and necessary to ensure that waqfs or
endowments under its superintendence are properly
maintained, controlled and administered and duly
appropriated to the purposes for which they were founded
or for which they exist.
(2) Without prejudice to the generality of the
provisions of sub-section (1) the powers and duties of the
Central Board shall be-
(a) to complete and maintain and authentic
record of rights containing information
relating to the origin, income, object, and
beneficiaries of every waqf in each district;
(b) to prepare and settle its own budget;
(c) to settle and pass budgets submitted by the
mutawallis direct to the Board and any budget
submitted to, but not approved by, a District
Waqf Committee, provided that it is in
accordance with the wishes of the waqif and
the terms of the deed of waqf;
(d) to settle and pass the annual budgets of
the District Waqf Committees;
(e) to institute and and defend suits and
proceedings in a court of law relating to-
(i) administration of waqfs,
(ii) taking of accounts,
(iii) appointment and removal of
mutawallis in accordance with the deed
1340
of waqf if it is traceable,
(iv) putting the mutawallis in possession
or removing them from possession,
(v) settlement or modification of any
scheme of management;
(f) to sanction the institution of suits under
section 92 of the Code of Civil Procedure,
1908, relating to waqfs to which this Act
applies;
(g) to take measure for the recovery of lost
properties;
(h) to settle scheme of management and
application of waqf funds in accordance with
the doctrine of cypres in case of those waqfs,
the objects of which are not evident from any
written instrument or in cases in which the
objects for which they were created have
ceased to exist;
(i) to enter upon and inspect waqf properties;
(j) to investigate into the nature and extent of
waqfs and waqf properties and call from time
to time for accounts and other returns and
information from the mutawallis and give
directions for the proper administration of
waqfs;
(k) to arrange for the auditing of accounts
submitted by the mutawallis;
(l) to direct the deposit of surplus money in
the hands of the mutawalli in any approved
bank and to utilize it on the objects of waqf;
1341
(m) to supervise and control the District Waqf
Committees;
(n) to administer the waqf fund;
(o) to keep regular accounts of receipts and
disbursement and submit the same in the
matter prescribed;
(p) to institute when necessary an inquiry
relating to the administration of a waqf:
Provided that in the appointment of mutawallis
or in making any other arrangement for the
management of waqf property the Central Board
shall be guided as far as possible by the directions of
the waqif, if any.
1125. A careful reading of 1936 Act as also all the earlier
enactments make it very clear that neither they create a waqf nor
diminish or terminate a waqf nor affect a waqf in any other
manner. On the contrary, the provisions have been made only to
provide a statutory body for the better governance,
administration and supervision of the waqfs to which the said
Act apply. Further vide Section 2(1) of 1936 Act though it
applies to all waqfs, whether created before the commencement
of the Act or thereafter, if any part of the property of which
waqf is situate in the United provinces but by virtue of Sub-
section (2) of Section 2 certain classes of waqfs have been
excluded. The exclusion under Sub-section (2) of Section 2 of
1936 Act is specific and has been categorized with precision. It
would mean that only to the extent the waqfs are excluded by
virtue of sub-section (2) of Section 2 all other waqfs, if a waqf
validly created, would be governed by 1936 Act.
1126. The term 'Waqf' under 1936 Act has also been
1342
defined as a permanent dedication or grant of any property for
any purposes recognized by the Musalman law or usage as
religious, pious or charitable including waqf by user where no
deed of waqf is traceable.
1127. However a cumulative reading of the entire 1936
Act shows that it does not govern the right of worship of Hindus
or Muslims. as the case may be. The object of enactment is to
provide better governance and administration in supervision of
certain classes of Muslim Waqfs. The Waqfs to which the
aforesaid Act applies are to be supervised and maintained by the
Central Boards, namely, Shia Central or Sunni Central Board, as
the case may be, constituted under Section 6 of the said Act.
1128. At this stage it may be pointed out that there was
some ambiguity between Section 8(1)(i) and Section 12.
Noticing the same, vide U.P. Muslim Waqfs (Amendment) Act
9 of 1953 which received the assent of the President on
26.02.1953, Section 12 was deleted and Section 8-A was
inserted which was held valid by this Court in All India Shia
Conference Vs. Taqi Hadi and others, AIR 1954 All. 124.
1129. In 1954, the Parliament enacted Waqf Act, 1954
(Act XXIX of 1954) (hereinafter referred to as '1954 Act'). The
aforesaid Act though extended to whole of India except the
State of Jammu and Kashmir but proviso to Section 1(3) thereof
provides for the State of U.P., Bihar and West Bengal as under :
Provided that in respect of any of the States of Bihar,
Uttar Pradesh and West Bengal, no such notification shall
be issued except on the recommendation of the State
Government concerned.
1130. Consequently, 1954 Act did not apply to the State of
U.P. since the State of U.P. had its own Act of 1936.
1343
1131. Though not necessary for the category of the issues,
with which we are concerned at this stage, but just to complete
the legislative history, we find that the State legislature enacted
U.P. Muslim Waqfs Act 1960 (U.P. Act No.XVI of 1960)
(hereinafter referred to '1960 Act'). This U.P. Act, 1960 received
assent of the President of India on 27
th
August, 1960 and was
published in U.P. Gazette Extraordinary on 3
rd
September, 1960.
Vide Section 1(3) of 1960 Act, it came into force at once.
Section 2 of 1960 Act provides for the application of the Act
and sub-section (1) thereof reads as under :
2. Application of the Act.-(1) Save as herein otherwise
specifically stated, this Act shall apply to all waqfs,
whether created before or after the commencement of this
Act, any part of the property comprised in which it situate
in Uttar Pradesh, and to all the waqfs which at the time of
the coming into force of this act were the superintendence
of the Sunni Central Board or the Shia Central Board
constituted under the U.P. Muslim Waqfs Act, 1936 (U.P.
Act XIII of 1936).
1132. Vide Section 85 (2) of 1960 Act, 1936 Act as well
as Husainabad Endowment Act, 1878 were repealed. Some
more enactments were repealed by insertion of Section 11 of
U.P. Act No.28 of 1971 whereby the following was inserted in
Section 85(2) of 1960 Act :
The following enactments are also hereby repealed in
their application to any waqf to which this Act applies :
(1) the Bengal Charitable Endoments, Public Buildings and
Escheats Regulation, 1810 (Act XIX of 1810) ;
(2) the Religious Endoments Act, 1863 (Act XX of
1863) ;
1344
(3)the Charitable Endowments Act, 1890 (Act XX of 1890) ;
(4) the Charitable and Religious Trusts Act, 190 (Act
XIV of 1920):
1133. There was saving provisions in Section 85 by way of
proviso which read as under :
Provided that this repeal shall not affect the operation of
those Acts in regard to any suit or proceeding pending in
any Court or to an appeal or an application in revision
against any order that may be passed in such suit or
proceeding and subject thereto, anything done or any
action taken in exercise of powers conferred by or under
those Acts shall unless otherwise expressly required by any
provision of this Act, be deemed to have been done or taken
in exercise of the powers conferred by or under this Act as
if this Act were in force on the day on which such thing was
done or action was taken.
1134. Besides, Section 28 of 1960 Act provides saving of
waqfs already registered and provides as under :
Savings U.P. Act XIII of 1986.- A waqf registered before
the commencement of this Act under the U.P. Muslim Waqf
Act 1936, shall be deemed to have been registered under
the provisions of this Act.
1135. 1960 Act now stands repealed by the Waqf Act,
1995 (Central Act) which has come into effect w.e.f. 1
st
January,
1996.
1136. Now reverting to 1936 Act, the general power of
superintendence vested in the Central Board is to ensure that the
waqfs or endowments under its superintendence are maintained,
controlled, administered and duly appropriated to the purposes
for which they were founded or for which they exist. The very
1345
functions of the Central Board, as such, do not relate directly to
the right of worship of either the Hindus or Muslims in any
manner. To some extent, however, it may be said that if a
religious Waqfs is not properly maintained and administered,
and, it causes hindrance or obstruction in observance of such
religious activities for which the Waqf was created, the right of
people in general who are entitled to use Waqf property for the
purposes it is created, to that extent may be obstructed, but
directly it cannot be said that 1936 Act in any manner deals with
the right of worship of any of the member of the community for
whose benefit the Waqf is created. It is moreso when the
question of a member(s) of a community other than Muslim
arises since neither his right of worship in any manner is sought
to be affected by 1936 Act nor otherwise it does appear to do so.
1137. In respect to 1936 Act this question came to be
considered by the Apex Court in Siraj-ul-Haq Khan and others
Vs. The Sunni Central Board of Waqf U.P. and others, AIR
1959 SC 198 in an appeal taken against the judgment of this
Court in Sunni Central Board of Waqf Vs. Siraj-ul-Haq Khan
and others, AIR 1954 All. 88. The matter pertains to Darga
Hazarat Syed Salar Mahsood Ghazi situated in the Village
Singha Parasi, District Bahraich. The appellants were members
of the Waqf Committee, Darga Sharif, Bahraich and filed a suit
seeking a declaration that the properties of suit were not covered
by the provisions of 1936 Act. The Court considered the words
the Mutawalli of a waqf or any person interested in a waqf
under Section 5(2) of 1936 Act, and, construing the same, it
held that it would mean any person interested in what is held
to be a waqf and in order to find out so it is open to the
Commissioner of the Waqf to find out whether a property is a
1346
waqf or not and if he includes such a property in the list of waqf,
the person challenging such decision would be included by the
words any person interested in a waqf under Section 5(2). It
would be appropriate to reproduce the relevant observations in
para 16 of the judgment:
The word 'waqf' as used in this sub-section must be
given the meaning attached to it by the definition in S. 3
(1) of the Act and since the appellants totally deny the
existence of such a waqf they cannot be said to be
interested in the 'waqf'. The argument thus presented
appears prima facie to be attractive and plausible; but on a
close examination of S. 5(2) it would appear clear that the
words "any person interested in a waqf" cannot be
construed in their strict literal meaning. If the said words
are given their strict literal meaning, suits for a
declaration that any transaction held by the Commissioner
to be a waqf is not a waqf can never be filed by a mutawalli
of a waqf or a person interested in a waqf. The scheme of
this sub-section is clear. When the Central Board assumes
jurisdiction over any waqf under the Act it proceeds to do
so on the decision of three points by the Commissioner of
Waqfs. It assumes that the property is a waqf, that it is
either a Sunni or a Shia waqf, and that it is not a waqf
which falls within the exceptions mentioned in S. 2. It is in
respect of each one of these decisions that a suit is
contemplated by S. 5, sub-s. (2). If the decision is that the
property is not a waqf or that it is a waqf falling within the
exceptions mentioned by S. 2, the Central Board may have
occasion to bring a suit. Similarly if the decision is that the
waqf is Shia and not Sunni, a Sunni Central Board may
1347
have occasion to bring a suit and vice versa. Likewise the
decision that the property is a waqf may be challenged by a
person who disputes the correctness of the said decision.
The decision that a property does not fall within the
exceptions mentioned by S. 2 may also be challenged by a
person who claims that the waqf attracts the provisions of
S. 2. If that be the nature of the scheme of suits
contemplated by S. 5(2) it would be difficult to imagine
how the mutawalli of a waqf or any person interested in a
waqf can ever sue for a declaration that the transaction
held by the Commissioner of the waqfs to be a waqf is not a
waqf. That is why we think that the literal construction of
the expression "any person interested in a waqf" would
render a part of the sub-section wholly meaningless and
ineffective. The legislature has definitely contemplated that
the decision of the Commissioner of the Waqfs that a
particular transaction is a waqf can be challenged by
persons who do not accept the correctness of the said
decision, and it is, this class of persons who are obviously
intended to be covered by the words "any person interested
in a waqf ". It is well-settled that in construing the
provisions of a statute courts should be slow to adopt a
construction which tends to make any part of the statute
meaningless or ineffective; an attempt must always be
made so to reconcile the relevant provisions as to advance
the remedy intended by the statute. In our opinion, on a
reading of the provisions of the relevant sub-section as a
whole there can be no doubt that the expression "any
person interested in a waqf" must mean "any person
interested in what is held to be a waqf ". It is only persons
1348
who are interested in a transaction which is held to be a
waqf who would sue for a declaration that the decision of
the Commissioner of the Waqfs in that behalf is wrong, and
that the transaction in fact is not a waqf under the Act. We
must accordingly hold that the relevant clause on which
Mr. Dar has placed his argument in repelling the
application of S. 5(2) to the present suit must not be strictly
or literally construed, and that it should be taken to mean
any person interested in a transaction which is held to be a
waqf. On this construction the appellants are obviously
interested in the suit properties which are notified to be
waqf by the notification issued by respondent 1, and so the
suit instituted by them would be governed by S. 5, sub-s. (2)
and as such it would be barred by time unless it is saved
under S. 15 of the Limitation Act.
1138. The above decision, however related to a matter
where all the parties before the Court were Muslim and there
was no question about the rights of non Muslim being affected
by a decision of the Commissioner of Waqf or Central Board
constituted under Section 6 of 1936 Act. In other words the
decision noted above covered the persons following the same
religious namely, Mohammadan Law but where such a dispute
is raised by another party namely a person of different religion
like, Hindu, Christian etc. whether 1936 Act at all will apply in
that case or not, is not touched by the above judgment.
1139. In our view, since 1936 Act does not provide or
control the right of worship of Hindu or Muslims, the rival
dispute between the persons who are not Muslims, in the matter
of an immovable property, whether it is waqf or not would not
be governed by the provisions of 1936 Act but it would be open
1349
to non-muslim party to stake his claim without being affected in
any manner by the provisions of 1936 Act.
1140. Our view find support from a Division Bench
decision of Rajasthan High Court in Radhakishan and another
Vs. State of Rajasthan and others, AIR 1967 Rajasthan 1.
This case had arisen from the Waqfs Act, 1954 (in short 1954
Act) and interpretation of the words any person interested
therein appearing in Section 6(1) came to be considered. The
Court held that it would not empower the Board of Waqfs to
decide the question whether a particular property is a waqf
property or not if such a dispute is raised by a person who is
stranger to waqf. The Division Bench therein referred to our
Full Bench decision in Mohammad Baqar (supra) and
observed that in reference to 1923 Act Patna, Lahore, Bombay
and Madras High Court took a view that the District Judge has
no jurisdiction to hold an inquiry into the nature of property
where the alleged Mutawalli deny existence of waqf though the
Allahabad Chief Court of Oudh took a different view.
1141. We may notice hereat that in the Full Bench
judgment of Chief Court of Oudh in Mohammad Baqar
(supra) there was no question with respect to jurisdiction of the
District Judge where the existence of alleged waqf is denied by
a stranger and not the Mutawalli, therefore, we do not find that
the decision in Radhakishan (supra) in any way can be
construed as a dissenting view to the decision of Oudh Chief
Court in Mohammad Baqar (supra). This is evident from what
has been held by the Rajasthan High Court in paras 24 and 25
reproduced as under:
24. The present Act No. 29 of 1954 is, no doubt, an
improvement on the Mussalman Wakf Act, 1923, but, in our
1350
view, this also does not empower the Board of Wakfs to
decide the question whether a particular property is a wakf
property or not, if such a dispute is raised by a person who
is a stranger to wakf. This view is further confirmed by the
provisions of section 59 of the Act which lays down that in
any suit or proceeding in respect of a wakf or any wakf
property by or against a stranger to the wakf or any other
person, the Board may appear and plead as a party to the
suit or proceeding.
25. To sum up the position, the Wakf
Commissioner, though he is invested with the powers of a
civil court in respect of certain matters, is not a civil court
empowered to decide a disputed question whether a
particular property is a wakf property or not. He has only
to make a survey of wakf property existing in the State at
the date of commencement of the Act and to make a report
of survey to the State Government. When the State
Government forwards the report to the Board of Wakfs, it
becomes the duty of the Board to examine it. Thereafter the
Board should publish, in the official gazette, a list of wakfs
existing in the State. The law does not require the
Commissioner to make a survey of wakf properties which
have already become extinct as such. If he mentions in his
report that certain properties were once wakf properties
and can still be recovered as such, then the proper course,
in our opinion for the Board is to file a suit, get them
declared as wakf properties and to recover their
possession. If a dispute about existence of a wakf is raised
by a person who is stranger to the wakf, then it is neither
fair nor proper for the Board to include such properties in
1351
the list published in the official gazette. Section 6, in our
opinion, refers only to those triangular disputes which
exists between the Board of Wakf, the mutawalli and a
person interested in the wakf. If there is a dispute between
these three on a question whether a particular property is a
wakf property or whether a wakf is a Shia wakf or a Sunni
wakf, it is open to any one of them to institute a suit in a
civil court of competent jurisdiction. If a suit is instituted,
the decision of the Civil Court will be final. If no such suit
is filed by any one of them within a year from the date of
publication of the list of wakfs the Court would not
entertain the suit thereafter and the list of the wakf shall be
final and conclusive between them. The object of Section 6
is to narrow down the dispute between the Board of Wakf,
the Mutawalli and the person interested in the wakf as
defined in section 3. In our view, it does not concern a
dispute if it is raised by a person who is an utter stranger
to the wakf. The list cannot be final and conclusive as
against a non muslim who is not covered by Section 6(1) of
the Act. Again, if a dispute whether a particular property is
a wakf property or not, is raised by a non-muslim and a
stranger to the wakf, the Board of Wakfs has no
jurisdiction to decide the matter in its own favour under
Section 27 and enter it in the register. The Board's decision
under section 27 would not be binding against such
persons. For the same reason, the Board would not be able
to recover possession of the property from such persons
under Section 36B of the Act.
1142. The judgment of Rajasthan High Court was taken in
appeal before the Apex Court in The Board of Muslim Wakfs,
1352
Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289.
Two questions raised in appeal. Firstly, the meaning of the
words any person interested therein in Section 6(1) and (4) of
Waqf Act, 1954 and secondly, the power of Waqf
Commissioner to make survey of waqf properties whether it
includes an inquiry about certain property as a waqf property or
not. The Apex Court referring to the various judgments
considered by the Rajasthan High Court held that they would be
of no assistance in interpreting the provisions of Waqf Act,
1954. However, it was held in para 23 of the judgment that the
High Court was right in determining the scope of Section 6(1) of
1954 Act but fell in error in curtailing the ambit and scope of an
inquiry by the Commissioner of Waqf under Section 4(3) and by
the Board of Waqfs under Section 27 of the Act.
1143. For our purpose, the meaning assigned by the Apex
Court in Section 6(1) to the words any person interested
therein would be relevant to answer the issues noticed above
and in this regard it would be appropriate to notice hereunder
paras 31, 32, 33, 34, 35 and 36 of the judgment as under:
31. That leaves us with the question as to the scope of
sub-s. (1) of S. 6. All that we have to consider in this
appeal is, whether if the Commissioner of Wakfs had
jurisdiction to adjudicate and decide against the
respondents Nos. l and 2 that the property in dispute was
wakf property, the list of wakfs published by the Board of
Wakfs under sub-s. (2) of S. 5 would be final and
conclusive against them under S. 6(4) in case they had not
filed a suit within a year from the publication of the lists.
The question as to whether the respondents Nos.1 and 2
can be dispossessed, or their possession can be threatened
1353
by the Board of Wakfs by proceeding under S. 36B
without filing a suit in a civil court of competent
jurisdiction does not arise for our consideration.
32. In the present case, the respondents Nos. 1 and 2
who are non Muslims, contended that they are outside the
scope of sub-s. (1) of S. 6, and consequently, they have no
right to file the suit contemplated by that sub-section and,
therefore, the list of wakfs published by the Board of Wakfs
under sub-s. (2) of S.5 cannot be final and conclusive
against them under sub-s. (4) of S. 6, It was urged that
respondents Nos. 1 and 2 were wholly outside the purview
of sub-s. (1) of S. 6 and they must, therefore, necessarily
fall outside the scope of the enquiry envisaged by sub-s. (1)
of S. 4, as the provisions contained in Sections 4, 5 and 6
form part of an integrated scheme. The question that arises
for consideration, therefore, is as to who are the parties
that could be taken to be concerned in a proceeding under
sub-s. (1) of S. 6 of the Act, and whether the list published
under sub-s. (2) of S. 5 declaring certain property to be
wakf property, would bind a person who is neither a
mutawalli nor a person interested in the wakf.
33. The answer to these questions must turn on the true
meaning and construction of the word 'therein' in the,
expression 'any person interested therein' appearing in
sub-s. (1) of S. 6. In order to understand the meaning of
the word 'therein' in our view, it is necessary to refer to the
preceding words 'the Board or the mutawalli of the wakf'.
The word 'therein' must necessarily refer to the 'wakf'
which immediately precedes it. It cannot refer to the 'wakf
property'. Sub-section (1) of S. 6 enumerates the persons
1354
who can file suits and also the questions in respect of
which such suits can be filed. In enumerating the persons
who are empowered to file suits under this provision, only
the Board, the mutawalli of the wakf, and 'any person
interested therein', thereby necessarily meaning any
person interested in the wakf, are listed. It should be borne
in mind that the Act deals with wakfs, its institutions and its
properties. It would, therefore., be logical and reasonable
to infer that its provisions empower only those who are
interested in the wakfs to institute suits.
34. In dealing with the question, the High Court
observes:
"In our opinion, the words "any person
interested therein" appearing in sub-section (1) of S.
6 mean no more than a person interested in a wakf as
defined in clause (h) of S. 3 of the Act..........
It is urged by learned counsel for the
petitioners that the legislature has not used in
Section 6(1) the words "any person interested in a
wakf" and, therefore, this meaning should not be
given to the words "any person interested therein".
This argument is not tenable because the words "any
person interested therein" appear soon after "the
mutawalli of the wakf" A and therefore the word
'therein' has been used to avoid re petition of the
words "in the wakf" and not to extend the scope of
the section to persons who fall outside the scope of
the words "person interested in the wakf". The
purpose of section 6 is to confine the dispute between
the wakf Board, the mutawalli and a person
1355
interested in the wakf."
That, in our opinion, is the right construction.
35. We are fortified in that view by the decision of this
Court in Sirajul Haq Khan v. The Sunni Central Board of
Wakf, U.P. 1959 SCR 1287:(AIR 1959 SC 198). While
construing S. 5(2) of the United Provinces Muslins Wakf
Act, 1936, this Court interpreted the expression "any
person interested in a wakf" as meaning 'any person
interested in what is held to be a wakf', that is, in the
dedication of a property for a pious, religious or
charitable purpose. It will be noticed that sub-s. (1) of S.6
of the Act is based in sub-s. (2) of S. 5 of the United
Provinces Muslims Wakf Act, 1936, which runs thus:
"The mutawalli of a wakf or any person interested in
a wakf or a Central Board may bring a suit in a civil court
of competent jurisdiction for a declaration that any
transaction held by the Commissioner of Wakfs to be a
wakf is not a wakf, or any transaction held or assumed by
him not to be a wakf, or that a wakf held by him to pertain
to a particular sect does not be- long to that sect, or that
any wakf reported by such Commissioner as being subject
to the provisions of this Act is exempted under section 2,
or that any wakf held by him to be so exempted is subject to
this Act."
The proviso to that section prescribed the period of one
year's limitation, as here, to a suit by a mutawalli or a
person interested in the wakf.
36. The two provisions are practically similar in content
except that the language of the main enacting part has
been altered in sub-s. (1) of S. 6 of the present Act and put
1356
in a proper form. In redrafting the section, the sequence,
of the different clauses has been changed, therefore, for the
expression "any person interested in a wakf" the legislature
had to use the expression "any person interested therein".
The word 'therein' appearing in sub-s. (1) of S. 6 must,
therefore, mean 'any person interested in a waker' as
defined in S. 3(h). The object of sub-s. (1) of S. 6 is to
narrow down the dispute between the Board of Wakfs, the
mutawalli and the person interested in the wakf, as defined
in S. 3 (h).
1144. The Apex Court having said so as noticed above
quoted the findings of the Rajasthan High Court with reference
to Section 6 in para 37 of the judgment and in para 38 it says
that it is in agreement with the reasoning of the High Court. The
answer has further been crystallized by the Apex Court in paras
39 and 43 of the judgment as under:
39. It follows that where a stranger who is a non-
Muslim and is in possession of a certain property his right,
title and interest therein cannot be put in jeopardy merely
because the property is included in the List. Such a person
is not required to file a suit for a declaration of his title
within a period of one year. The special rule of limitation
laid down in proviso to sub s. (1) of S. 6 is not applicable
to him. In other words, the list published by the Board of
Wakfs under sub-s. (2) of S. 5 scan be challenged by him by
filing a suit for declaration of title even after the expiry of
the period of one year, if the necessity of filing such suit
arises.
43. In view of the foregoing, the right of the respondents
Nos. 1 and 2 in respect of the disputed property, if at all
1357
they have any, will remain unaffected by the impugned
notification. They are at liberty to bring a suit for the
establishment of their right and title, if any, to the
property.
1145. As noticed above the Apex Court also referred to
Section 5(2) of 1936 Act and observed that it is pare materia to
Section 6(1) and (4) of Waqf Act, 1954.
1146. The above decision of the Apex Court in
Radhakishan (supra) was followed in Board of Mulim Wakfs
Vs. Smt. Hadi Begum and others, AIR 1992 SC 1083 where in
para 10 of the judgment the Court briefly reproduced what was
held in Radhakishan (supra) regarding the right, title and
interest of a non-muslim with reference to the Waqf Act, 1954
which also contain the provisions, pari materia with 1936 Act,
and held:
The right, title and interest of a person who is non-muslim
and is in possession of certain property is not put in
jeopardy simply because that property is included in the
list published under sub-sec. (2) of S. 5 and he is not
required to file a suit in a Civil Court for declaration of his
title within the period of one year and the list would not be
final and conclusive against him. Sub-sec. (4) of S. 6 makes
the list final and conclusive only between the Board, the
mutawalli and the person interested in the wakf. (para 10)
1147. To the same effect is a decision of an Hon'ble Single
Judge in Marawthwada Wakf Board Vs. Rajaram Ramjivan
Manthri and others, AIR 2002 Bom. 144. With reference to
Waqf Act 1954, in para 19 of the judgement, it observed:
Therefore, from the above, it is extremely clear that the
respondent No. 1, who is a non-Muslim, being a Hindu,
1358
could not file a suit u/S. 6 of the Wakf Act, 1954, but he
cannot be barred from filing a suit especially in view of the
fact that his right, title and interest have been jeopardised
in view of the notification issued by the Government of
Maharashtra aforesaid.
1148. Another Hon'ble Single Judge of this Court in U.P.
Sunni Central Waqf Board, Lucknow Vs. State of U.P. and
others, 2006(6) ADJ 331 considering Act No.XVI of 1960
which contain similar provisions as that of 1936 Act, in para 9
of the judgment, observed:
There is no dispute that the respondent No. 3 by virtue of
sale deed became the owner of the property is dispute. The
respondent No. 3 being non Muslim, the provisions of U.P.
Muslim Waqf Act, 1960 was not applicable as held by this
Court in the case of Chedda Singh and others Vs.
Additional Civil Judge, Moradabad and others.
1149. A similar view was taken in an earlier decision of
this Court in Chedha Singh and others Vs. Additional Civil
Judge, Moradabad and others, 1996 Supp. AWC 189 which
has been followed in U.P. Sunni Central Waqf Board,
Lucknow (supra).
1150. Now, therefore, it is well settled that Section 5 of
1936 Act would have no application qua the rights of Hindus in
general and plaintiff (Suit-1) in particular in respect to his right
of worship. He would not be bound mere by inclusion of the
property in a notification issued under Section 5(1) of 1936 Act.
Moreover, in this particular case since the notification itself has
been held invalid so far as the property in question is concerned,
meaning thereby, in the eyes of law, there was no notification
under Section 5(1) of 1936 Act and, therefore, also the
1359
restriction or benefit if any under the Act would not be
applicable to either of the parties. No further provision has been
shown to us from 1936 Act to affect the rights of Hindus in
general and plaintiff (Suit-1) in particular affecting their/his
right of worship etc..
1151. Therefore, both the issues are answered in favour of
plaintiff (Suit-1) and defendants (Suit-4) in particular and in
favour of Hindu parties in General. Issues No. 5(b) (Suit-4) and
9(a) (Suit-1) are answered accordingly.
1152. Issue No. 5(e) (Suit-4) reads as under:
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?
1153. Issue 5(e) (Suit-4) raises a very basic question about
the maintainability of Suit-4 pursuant to the finding recorded by
the leaned Civil Judge where no valid notification has been
issued under Section 5(1) of the Act in respect to the property in
dispute. The question is whether in such circumstances,
plaintiff, Sunni Central Board of Waqf (Suit 4) has any right to
maintain the present suit or not. This leads us to examine about
the Waqfs covered by 1936Act as also when the Sunni Central
Board of Waqf can file a suit.
1154. Sri P.N. Mishra, learned counsel for the defendant
No.20 in suit 4 submitted that once it is held that there is no
valid notification issued under Section 5 of 1936 Act and in
view of the further fact that no attempt was made by any person
including the alleged Mutawalli to get the alleged waqf
1360
registered under Section 38 with the plaintiff No.1 in Suit-4 and
the Sunni Central Waqf Board has failed to take any steps to get
the alleged waqf registered by issuing necessary directions, as
the case may be, under Section 39/40 of 1936 Act, it is evident
that the disputed building in suit is never treated to be waqf by
them and therefore, since it was not a waqf, the Act itself is not
applicable. Hence suit-4 by plaintiff No.1 is not maintainable.
He also submitted that even otherwise there was no waqf at all,
hence 1936 Act is inapplicable. Sunni Central Waqf Board has
no right to file the above suit.
1155. We find that though under the various provisions of
1936 Act, the legislature has attempted and made various
provisions so that any waqf in the State of U.P., if existed, may
be known to the Sunni Central Waqf Board so that it may be
properly supervised and administered. However, the Act does
not contain any provision that even though a waqf has been
created in accordance with Islamic Law yet it would not be
governed by the Act and shall be beyond the power of
supervision, administration of Sunni Central Waqf Board or
Shia Central Waqf Board, as the case may be for the mere
reason that it was not notified under Section 5 of the 1936 Act,
not registered due to fault of the Mutawalli, if any or due to
inaction of the Board itself. It is, however, admitted by learned
counsel for the defendant No.20 that the Act neither creates a
waqf nor extinguish the same if the same is already in existence.
In these circumstances, particularly in the absence of any
provision in the Act, we have to consider whether there is any
intrinsic indication in the Act to necessarily exclude such a waqf
from the purview of 1936 Act merely for its non notification or
registration etc. with the Board. If we find that there is no such
1361
intrinsic hint in the Act also then to accept the submission, wide
enough, as advanced by Sri Mishra that even though there is a
valid waqf, if it is not notified or registered with the Board or if
no person has filed a suit for declaration that there is no waqf
within the prescribed limitation, such waqf even if validly
created would not be covered by 1936 Act, would mean that we
have read certain words in the statute which do not actually
exist. It travels in the realm of casus omissus which normally
this Court shall not presume unless there is a necessary
compulsion to do so. Considering the basic purpose for which
the 1936 Act was enacted we find it difficult to read any such
words in the statutes.
1156. The Waqf Act, 1954 though not applicable to the
State of U.P. but therein the provisions are mostly pari materia
with 1936 Act. To start with there also was no provision which
restrain the Central Board or anyone to initiate proceedings for
enforcing rights on behalf of a waqf not registered with the
Board but later on Section 55-E was inserted therein by Act No.
69 of 1984 which bar enforcement of right on behalf of
unregistered waqf by anyone which included the Waqf Board
also. It reads as under:
55-E. Bar to the enforcement of right on behalf
of unregistered waqfs.-(1) Notwithstanding anything
contained in any other law for the time being in force, no
suit, appeal or other legal proceeding or the enforcement
of any right on behalf of any waqf which has not been
registered in accordance with the provisions of this Act,
shall be instituted or commenced or heard, tried or decided
by any Court after the commencement of the Waqf
(Amendment) Act, 1984, or where any such suit, appeal or
1362
other legal proceeding had been instituted or commenced
before such commencement, no such suit, appeal or other
legal proceeding shall be continued, heard, tried or
decided by any Court after such commencement unless
such waqf has been registered, after such commencement
unless such waqf has been registered, after such
commencement, in accordance with the provisions of this
Act.
(2) The provisions of sub-section (1) shall apply, as
far as may be, to the claim for set-off or any other claim
made on behalf of any waqf which has not been registered
in accordance with the provisions of this Act.
1157. We may notice that neither any similar provision
was made in 1936 Act nor in Act No. XVI of 1960, therefore, it
would not be appropriate to read something in U.P. Waqf Act,
1936 which actually did not find mention therein.
1158. We may clarify at this stage that a provision pari
materia with Section 55-E of 1954 Act has been included in
Waqf Act, 1995 in Section 87 but we are not concerned thereto
in this case.
1159. A collective reading of various provisions of 1936
Act shows that any 'waqf' defined under Section 3(1), whether
existed at the time when 1936 Act came into force, or, came into
existence subsequently, unless excluded under Section 2(2),
would be covered by Section 2(1). In the present suits, there is
an issue no. 6 (Suit-3) questioning the very existence of a 'Waqf'
and, therefore, unless that issue is answered in favour of the
plaintiffs (Suit-4), it can obviously be not said that the property
in dispute constituted 'a Waqf' under Section 3(1) of 1936 Act
and, therefore, will be covered by Section 2(1) of 1936Act since
1363
it is not excluded by Section 2(2). Apparently the purpose of
survey and notification under Section 5(1) is to identify the
Waqfs as also the concerned Central Board which would
exercise the power of superintendence over the Waqf concerned
i.e. whether it is Sunni or Shia. Absence of a notification under
Section 5(1) in respect to a property which is a 'Waqf' otherwise
would not result in exclusion of other provisions of 1936 Act.
The function of Central Board and its power of superintendence
is not circumscribed to the 'Waqfs' as notified under Section
5(1) of the Act.
1160. A perusal of Section 18 on the contrary shows that
general power of superintendence of all Waqfs to which the
Act applies is vested in the Central Board. Similarly, Section
38 of the Act also says that there is an obligation regarding
registration of 'Waqf' whether it is subject to 1936 Act or not
and whether created before or after the commencement of the
Act, at the office of Central Board of the sect to which the Waqf
belongs, namely, if the Waqf is a sunni Waqf, with Sunni
Central Board of Waqf, otherwise, with the Shia Central Board
of Waqf. The obligation for making application for registration
is upon the Mutwalli. Non compliance of Section 38 is an
offence punishable under Section 60. In case of failure of a
Mutwalli to get the Waqf registered, the power is also conferred
upon the Central Board itself to issue such a direction vide
Section 40 of 1936 Act. Section 39 provides for maintaining a
register of Waqfs by the Central Board containing particulars in
respect to each Waqf. The said provision is not confined to only
such Waqfs as are notified under Section 5(1) of 1936 Act.
Section 47 confers power upon the Central Board to apply the
Court seeking direction in cases of undisposed Waqf funds or
1364
where the directions in the deed of waqf are no longer sufficient
to carry out the intention of the waqif or where is a case for the
application of doctrine of cypres. Here also the entitlement of
the Central Board to approach the Civil Court is not confined to
the waqfs notified under Section 5(1). Section 48 and 49 also
are applicable to any waqf to which 1936 Act applies and not
confined to the waqfs notified under Section 5(1) of the Act.
Similarly, Section 52 also provides for notice of suits to the
Central Board where any suit relating to title to any waqf
property or to the rights of a Mutwalli is instituted in any civil
Court. It is also not confined to the waqfs notified under Section
5(1) of the Act. Same is the position under Section 53 and 54 of
the Act. We are, therefore, of the view that subject to Issue No.
6 (Suit-3), if answered in positive, i.e. in favour of plaintiffs
(Suit-4) or against the plaintiffs (Suit-3),i.e. if it is held that
mosque was dedicated by emperor Babar for worship by
Muslims in general and results in creation of a public waqf
property, in that condition, Issue No. 5 (e) has to be answered in
favour of the plaintiffs (Suit-4) and it is to be held that the
plaintiff, Sunni Central Board of Waqf, has a right to maintain
the suit even though a valid notification under Section 5(1) of
1936 Act was never issued in respect to the property in question.
Otherwise, this suit at the instance of Sunni Central Board of
Waqf would not be maintainable.
1161. It is true that in Tamil Nadu Wakf Board Vs.
Hathija Ammal, AIR 2002 SC 402 which was a case arising
out of the provisions of Waqf Act, 1954 and in particular
Sections 4, 5, 6 and 27 thereof, the Court held that since the
Board itself possess power to decide whether a particular
property is waqf property or not and its decision is final unless it
1365
is revoked or modified by a civil court by virtue of Section 27 of
1954 Act and, therefore, the Board cannot file a suit for
declaration that any property is a waqf property and for its
possession. However, in our view, the above judgment does not
apply to a case governed by 1936 Act which contain no
provision pari materia to Section 27 of 1954 Act.
1162. At this stage we may also refer an earlier decision of
this Court in Afzal Hussain Vs. 1
st
Additional District Judge,
AIR 1985 All. 79 where it was held that before taking an action
under Section 57A, for recovery of possession of waqf property
from unauthorised occupants, the first inquiry which the Board
has to make is whether the immovable property in respect of
which action is to be taken is entered as property of waqf in the
register of waqfs maintained under S. 30 of 1960 Act being a
jurisdictional issue. The above judgment also is not applicable
for the reason that Section 57A provides for summery eviction
of unauthorised occupants and is applicable only in such cases
where the property is entered in the register of waqfs maintained
under Section 30. Therefore, the dictum laid down therein
cannot be extended to a case where a suit is to be filed by the
Waqf Board for declaration of possession of a waqf even though
it is neither notified under Section 5(1) nor registered with it
under 1936 Act.
1163. Sri Siddiqui, however, tried to overcome the
difficulty as a result of invalidation of the notification by the
Civil Judge by contending that neither it afects the power of
Sunni Board to maintain the suit nor shall bring into the
question of limitation. Placing reliance on the Apex Court's
decision in U.P. Shia Central Board of Waqf Vs. U.P. Sunnir
Central Board of Waqf, AIR 2001 SC 2086, he contended that
1366
mere non-availability of the notification shall not deprive the
Board from registering a property as a waqf property on its own
inquiry. He further submits that the Hindu parties have also filed
certain documents after obtaining certified copies thereof from
the Sunni Board and that being so, it is not open to them to
challenge that the waqf in question is not registered.
1164. The submissions of Sri Siddiqui, however, are not
sustainable. It is though not disputed that U.P. Act 1936
contemplated enlistment of waqfs in the register of concerned
Waqf Board in three ways, i.e., based on the list prepared by the
Commissioner of Waqfs and consequential notification; on the
application of the Mutwalli of the concerned waqf and
registration by the concerned waqf after issuing notice by the
Waqf Board itself but we have to look all these aspects in the
light of the U.P. Act 1936 which continued to hold the field till
1960. Sections 1 to 4 came into force on 20.3.1937 but rest of
the provisions, i.e., Sections 5 to 71 were enforced with effect
from 1.7.1947. The only way in which the disputed waqf
claimed to have been registered by the Waqf Board was the
notification dated 26.2.1944 based on the report of the
Commissioner. That notification was found invalid by the Civil
Judge in its judgment dated 21.4.1966. It is nobody's case and
even the counsel for the Waqf Board do not claim that till issue
no. 17 was decided by the Civil Judge except of the notification
dated 26.2.1944, there was any other procedure or method
followed by the Sunni Board to enlist or register the concerned
waqf in the register of the Waqf Board. Neither it is pleaded nor
there is any material on record to substantiate the same. U.P.
Act 1936 was substituted by U.P. Act 1960. This continued to
hold the field till the Waqf Act 1995 was enacted by the
1367
Parliament. It is only in the pleadings which the Waqf Board
filed after 1989, wherein for the first time it has pleaded that the
waqf in question was registered by the Board under Section 30
of U.P. Act 1960. Till then there was no pleading, no material to
show that the waqf in question was registered with the Board in
any other manner except the notification dated 26.2.1944. That
was declared invalid on 21.04.1966 by the Civil Judge. In the
case of Shia Waqf Board (Supra) there was reference made
under section 8 of U.P. Act 1960 since there was a dispute
whether the concern waqf was a Sunni waqf or Shia waqf. The
Apex Court held that where a dispute arose about the nature of
the waqf whether it is a Shia waqf or a Sunni waqf, the only
requirement under section 8 is the existence of dispute and not
the existence of notification. Referring to section 6 (4) it further
observed that if a notification has already been issued, then the
restriction is that such dispute can be referred only within a
period of one year and not after expiry thereof but so long the
notification is not there, outer limit will not be attracted. We do
not find this judgment to lend any help to the plaintiff (Suit-4)
or Sunni Board in any manner.
1165. Similarly the pleading with respect to section 29 (8)
also has no relevance in the case in hand since it is not the case
of the Sunni Waqf Board that except the notification dated
26.02.1944 there was any other order of the waqf board which
existed declaring the waqf in question as a waqf registered with
the Board and the same having not been challenged under
section 29(8) within time prescribed and thereafter could not
have been raised in this regard. This pleas wholly baseless and
is not attracted in these matters.
1166. Even otherwise, Suit-4 has been filed not only by
1368
the Sunni Central Waqf Board but there are nine more
individual muslim parties being plaintiffs no. 2 to 10. It is
obvious that they are muslims and, therefore, would be
interested in the property in dispute to which they claim to be a
waqf property. The right to file a suit by a muslim in respect to a
property claimed to be a waqf property came to be considered
before a Division Bench in Anjuman Islamia Vs. Najim Ali
and others, AIR 1982 MP 17 and in para 7 of the judgement it
held:
7. We shall first consider the question whether the
suit was not tenable at the instance of the plaintiff. In brief
S. 195 of the Principles of Mohammedan Law by Mulla
(18
th
Edition), is the complete answer to this question,
which contemplates that a suit for a declaration that
property belongs to a wakf can be brought by
Mohammedans interested in the wakf. Anjuman is a society
of Mohammedans registered under the Societies Act (Act
No. 21 of 1860), as per registration certificate No. 104 of
1960-61 (Exhibit P-5). Admittedly the members of plaintiff
Anjuman and its president Shri Mohd. Abdul Qadir (PW 1)
are residents of Chhatarpur and belong to Muslim
community. They are, therefore, persons very much
interested in the property in suit which they claim to be
wakf property. The suit, therefore, instituted at their
instance would be perfectly competent and tenable and the
learned District Judge was wrong in holding otherwise.
1167. In the absence of any other precedent persuading us
to take a different view, we find ourselves in respectful
agreement thereto. We therefore hold that Suit-4 cannot be said
to be not maintainable provided the issue regarding the very
1369
nature of the disputed property whether it is a waqf or not is
decided in favour of the plaintiffs (Suit-4) i.e. subject to the
issue as to whether the disputed property is a waqf or not, i.e.,
issue no. 6 (Suit-3) if decided in favour of plaintiffs (Suit-4),
i.e., defendants (Suit-3).
1168. Issue No. 18 (Suit-4) is as under:
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 AIR 1981 Supreme Court 2198 on the
finding of the learned Civil Judge recorded on 21
st
April,
1966 on issue no. 17?
1169. Issue No. 18 (Suit-4) relates to the effect of the
judgement of the Apex Court in Gulam Abbas (supra) on the
Issue No. 17 (Suit-4) decided by the learned Civil Judge vide his
judgement dated 21.4.1966. Sri Jilani argued that the
notification dated 26.02.1944 under Section 5 (1) of 1936 Act
was relied by the Apex Court in the above judgment meaning
thereby the notification cannot be said to be void ab initio and it
would be deemed as if the decision of the leaned Civil Judge is
no more a good law in view of the fact that the law laid down by
the Apex court is the law of the land vide Article 145 of the
Constitution of India.
1170. Sri M.M. Pandey, counsel for plaintiffs (Suit-5),
however, submitted that the decision in Ghulam Abbas's case
may be considered. In respect of Doshipura Mosque and other
properties, the Wakf Commissoner, after survey and 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 and Sunni Boards of Wakf. On
1370
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.
1171. We have perused the above judgment very carefully.
The dispute before the Apex Court in Gulam Abbas (supra)
was between the members of Shia and Sunni communities of
muslims. In Mohalla Doshipura of Varanasi City, both sects of
muslims, namely, Shias and Sunnis reside. Both revere the
martyrdom of Hazrat Imam Hussain and Hazrat Imam Hasan,
grandsons of Prophet Mohammad during Moharram but in
different manner. The members of Shia sect in Mohalla
Doshipura numbering about 4000 constitute a religious
denomination having a common faith and observe Moharram
for two months and eight days in a year in memory of Hazrat
Imam Hussain who along with his 72 followers attained
martyrdom at Karbala. The said religious belief is practised by
the men-folk and the women-folk of the Shia community by
holding Majlises (religious discourses), Recitations, Nowhas,
Marsia, doing Matam (wailing) and taking out processions with
1371
Tabut Tazia, Alams, Zuljinha etc. For performing these religious
rites, practices and observances, the Shia community has been
customarily using from time immemorial nine plots in Mohalla
Doshipura and the structures on some of them, particulars
whereof are as under :
Plot No. 246; on which stands a Mosque which, it is
common ground, belongs to both the sects as it was
constructed out of general subscription from members of
both the sects and every Mohammadan is entitled to go in
and perform his devotions according to the ritual of his
own sect or school.
Plot No. 247/1130: on which stands the Baradari
(Mardana Imambara- A structure of white stone having 12
pillars) constructed by Shias in 1893 used for holding
Majlises, Recitations, Marsia and doing other
performance.
Plot No. 245: on which there is a Zanana Imambara
used by Shia ladies for mourning purposes and holding
Majlises etc.
Plot No. 247: on which there is Imam Chowk used
for placing the Tazia thereon (said to have been
demolished by the Sunnis during the pendency of the
instant proceeding).
Plot No. 248/23/72: a plot belonging to one
Asadullah, a Shia Muslim, with his house standing thereon.
Plot No. 246/1134: on which stands a Sabil Chabutra
(platform for distributing drinking water) belong to one
Nazir Hussain, a Shia Muslim.
Plots Nos. 602/1133, 602 and 603 : being vacant
plots appurtenant to the Baradari in plot No. 247/1130
1372
used for accommodating the congregation assembled for
Majlises etc. when it over-lows the Baradari.
1172. The manner in which the religious rights, practices
and functions used to be performed by the members of Shia
community is mentioned in the judgment. The claim of Shia
community to perform their religious rights on the said nine
plots and structures thereon based on two foundations' (1)
decisions of competent Civil Court adjudicating rights in their
favour in earlier litigations and (2) registration of Shia Waqfs
concerning the plots and structure for performance of theses
practices and functions under Section 5 and 38 of 1936 Act,
which had become final as no suit challenging the
Commissioner's report and registration was filed within two
years by any member of Sunni community or the Sunni Central
Board of Waqf.
1173. For the purpose of issue no. 18 (Suit-4), we need not
to go into the details of the first aspect of the matter, i.e., the
various suits and proceedings which became final between the
two sects and instead straight way come to that part of the
judgment which deals with the notification dated 26.02.1944
issued under 1936 Act. The Shia sect claim that the
Commissioner of Waqf submitted his report dated
28/31.10.1938 to the State government under Section 4(5)
showing the plots and structures referred to above as Shia
Waqfs. This was followed by notification dated 15.1.1954
issued under Section 5(1) of 1936 Act by the Shia Central Board
of Waqf and published in the U.P. Gazette dated 23.1.1954. No
suit challenging to the said notification was filed either by Sunni
Central Board of Waqf or any Sunni Muslim within the period
prescribed under Section 5(2) of 1936 Act. The Sunni sect,
1373
however, relied on the notification dated 26.2.1944 issued by
the Sunni Central Baord of Waqf under Section 5(1) of 1936
Act following the report of Commissioner of Waqf in respect to
the waqfs which he identified a Sunni Waqf.
1174. After analysing the provisions of 1936 Act as well
as Muslim Waqf Act 1960 (Act No.14 of 1960) (hereinafter
referred to as 1960 Act), the Apex Court discusses the facts
pertaining to preparation of report by Commissioner and
notifications issued under 1936 Act, in para 16 of judgment as
under :
It appears that the Government of Uttar Pradesh
appointed Shri Munshi Azimuddin Khan, A deputy
Collector, as a Chief or Provincial Commissioner of Wakfs
under Section 4A of the 1936 Act for the purpose of making
a survey of all the Wakfs in all the districts of the State. ...
After making the necessary inquiries Shri Munshi
Azimuddin Khan submitted to the State Government his
Report dated 28th/31
st
October, 1938 and annexed several
appendices to his Report; Appendix VIII referred to Waqfs
pertaining to Sunnis and declared as subject to the 1936
Act and Appendix IX mentioned Waqfs pertaining to Sunni
sect which were exempted from the Act; Appendices X and
XI contained corresponding information about the Shia
Waqfs which were respectively declared as subject to the
Act or exempt from the Act. The original Report bearing
the signature of Shri Munshi Azimuddin Khan, Chief Waqfs
Commissioner was produced before us marked Exh. A) for
our inspection by Mr. Rana, Counsel for the State of U.P.
and the same was made available for inspection to the
parties. There is a slip attached to the Report placed in
1374
between Annexure VII and Annexure XIII containing an
endorsement to the effect : Appendices VIII and IX sent to
the Sunni Board and Appendices X and XI sent to the
Shia Board with the signature of the Chief Commissioner
of Waqfs below it......Presumably the aforesaid action of
sending the relevant appendices along with a copy of the
Commissioner's report to the respective Sunni Central
Waqf Board and the Shia Central Waqf Board was taken as
required by Section 5(1) of the Act. ....... after receiving the
aforesaid documents (Report together with the appendices
X and XI), the Shia Central Waqf Board, as required by
Sec. 5(1) of the Act, took steps to notify in the Official
Gazette all the waqfs relating to their sect on the basis of
the Appendices annexed to the Report; the relevant
Notification under Section 5 (1) was issued on 15
th
January, 1954 and published in the Government Gazette on
23
rd
January, 1954. .........Admittedly, no suit was filed
either by the Sunni Central Board or any other person
interested in those Wakfs challenging the decision recorded
in his Report by the Chief or Provincial Commissioner for
Wakfs within the time prescribed under Section 5 (2) of the
Act, and, therefore, the Chief Commissioner's Report
together with the appendices X and XI thereto dated
28
th
/31
st
October 1938, on the basis of which the
Notification dated 15
th
January, 1954 was issued and
published in Official Gazette on 23
rd
January, 1954, must
be held to have become final and conclusive as between the
members of the two communities.
1175. Thereafter, in para 17 of the judgement, the Apex
Court dealt with the notification dated 26
th
February, 1944 relied
1375
by the members of Sunni community and said:
As against the aforesaid material respondents 5 and
6 and through them the Sunni community have relied upon
a Notification dated 26
th
February, 1944 issued by the
Sunni Central Wakfs Board under Section 5(1) of the U.P.
Muslim Wakfs Act, 1936 following upon the receipt of the
Report of the Chief or Provincial Commissioner of Wakfs
in respect of mosque in Doshipura showing the same as
Sunni Wakf, copy whereof has been annexed as Annexure
S-2 to the affidavit dated 6
th
February, 1980 of Mohd. Basir
Khan filed on behalf of the Sunni Central Waqfs Board as
its Pairokar'. This Notification on which reliance has
been placed by the Sunnis appears to us of doubtful validity
and probative value for the reasons which we shall
presently indicate. Though issued and published earlier in
point of time than the Notification of Shia Central Waqfs
Board, it is admittedly not based on Appendices VIII and
IX annexed to the Chief Commissioner's Report dated
28th/31
st
October, 1938 but on the basis of some Registers
of Waqfs (meaning lists of Waqfs) said to have been
received by the Sunni Board from the Commissioner of
Wakfs. Curiously enough the Sunni Central Waqfs Board
had stated through two affidavits dated 6
th
January, 1980
and 9
th
January, 1980 of their Pairokar Shri Mohd. Basir
Khan that along with the copy of the Commissioner's
report Registers of Waqfs were received but no appendices
like Appendices VIII and IX were received from the
Commissioner, that according to the Registers of Waqfs
there were 245 charitable Sunni Waqfs in the District of
Banaras which were covered by the 1936 Act and all such
1376
Waqfs were accordingly notified by the Sunni Board in the
government Gazette by issuing the Notification dated 26
th
February, 1944 under Section 5(1) of the Act. The original
Report of the Commissioner does not refer to anything like
Registers of Waqfs but, as stated earlier, it refers to
Appendices Nos. VIII, IX, X and XI and the endorsement on
the slip under the signature of the Chief Commissioner
shows that the former two appendices were sent to the
Sunni Board and the latter two to the Shia Board. In face of
this endorsement and having regard to the fact that the
Shia Board had received Appendices X and XI along with
the Commissioner's Report which that Board offered to
produce, it is difficult to accept the Statement of the
Pairokar of the Sunni Board that no appendices were
received by the Board along with a copy of the
Commissioner's Report. It seems that relevant appendices,
though received, are being withheld as their production
would be adverse to the Sunnis. Apart from that aspect it is
clear on their own admission that the Notification under
Sec. 5 (1) of the 1936 Act was issued by the Sunni Central
Waqfs Board not on the basis of Appendices VIII and IX
which formed part of the Commissioner's Report but on the
basis of some Registers of Waqfs said to have been
received by it. The notification regarding the Sunni Waqfs
issued on the basis of material which did not form part of
the Chief Commissioner's Report would be in violation of
Section 5(1) of the Act which required issuance of a
Notification thereunder 'according to' the Commissioner's
Report and as such the Notification dated February 26,
1944 relied upon by respondents 5 and 6 and members of
1377
the Sunni community would be of doubtful validity. ... ....We
are, therefore, clearly of the view that the Notification
dated 26
th
February, 1944 issued under Section 5(1) of the
1936 Act by the Sunni Board is of no avail to the Sunnis for
the purpose of defeating the customary rights of the Shias
to perform their religious ceremonies and functions on the
other plots and structures thereon.
1176. From the above judgment, thus, it is evident that the
Apex Court, in fact, did not rely on the notification dated
26.2.1944 but instead held it to be of doubtful validity and
probative value having not been issued in accordance with the
procedure prescribed under Section 5 of 1936 Act. In our view,
instead of upsetting the judgment of the learned Civil Judge, it,
in fact, strengthened the said decision which has held that the
notification dated 26
th
February 1944 was not a valid
notification in respect to property in dispute. In view of the
above discussion, we have no manner of doubt that the Apex
Court's decision in Gulam Abbas (supra) does not affect the
finding of the learned Civil Judge on Issue No. 17 (Suit-4) as
contained in his judgement dated 21.4.1966, but on the contrary,
support and strengthen his said finding. Issue No. 18 (Suit-4) is
answered accordingly.
1177. Issue No. 9(b) (Suit-1) reads as under:
Were the proceedings under the said Act referred to in
written statement para 15 collusive? If so its effect?
1178. Issue No. 9(b) (Suit-1) is based on the pleadings of
the plaintiffs in para 15 of his replication which reads as under:
r. - o s ssc l~ ultra vires r i
-i l i; i i; | n; ni r void r i| l|
il- i - r| r i l| i ir| li i iii r
1378
- li ni r ; lii n i; ii r i| i -i r l
r lii n - --i - i| iii ( ili| ) iln li
ii|
15. Act no.13 of 1936 is ultra vires and the proceeding, if
any, in its pursuance is void. The plaintiff is not bound by
any notice nor does any proceeding, mentioned in para-15,
have any bearing on this case. According to the plaintiff,
this case has been filed collusively. (E.T.C.)
1179. In this paragraph reply contain with respect to para
15 of the written statement filed on behalf of defendants 1 to 5
which reads as under:
r. r l -il - -il- - s ssc | l-
ii - r i | l- - i nr|in
- ii -i i -l i| r n li l -l i| i ni-|
li iriir i | -r ii i - nil~
-l - i| r i ;| ll - i |
i-|l i i| i| li|
15. That a Chief Commissioner of Aukaf (plural of
Waqf) was appointed under the Muslim Waqf Act 13 of
1936, and after investigation and inspection of the disputed
site Babri mosque the Chief Commissioner decided that
emperor Babar, the builder of Babri mosque, was of Sunni
sect and the Waqf in respect of the disputed mosque is a
Sunni Waqf, and (he) also issued a legal notification in this
behalf. (E.T.C.)
1180. To the same effect the defendant No.10 has also
pleaded in paras 14 and 16 which reads as under:
14. That after the promulgation of U.P. Muslim Waqf
Act, 1936, the Chief Commissioner of Waqfs had got a
survey made in respect of the waqf properties and in that
connection survey of the mosque in question was also
1379
conducted and the same was registered as a waqf and a
gazette notification had also been issued in respect thereto
under the provisions of the U.P. Muslim Waqf Act, 1936.
16. That the said mosque stands registered as a mosque
in the office of the U.P. Sunni Central Board of Waqf,
hereinafter referred to as the Board, as Waqf No. 26
Faizabad even in the Register of Waqfs maintained under
section 30 of the U.P. Muslim Waqf Act, 1960.
1181. In para 15 of the written statement of defendants no.
1 to 5 the statement of fact with respect to the inquiry made by
the Chief Commissioner of Waqf and the notification dated
26.02.1944 has been made. This notification has already held to
be invalid, so far as the disputed property is concerned. No
material has been placed before this Court to show that the
alleged proceedings under 1936 Act in any manner were the
result of any conspiracy, mala fide etc. of the muslim parties. In
fact the plaintiff (Suit-1) could not substantiate the plea of
conspiracy taken in para 15 of his replication and during the
course of arguments the learned counsel for the plaintiff (Suit-
1), in fact, gave up the said plea and neither advanced any
submission nor could substantiate the same. In the
circumstances, issue no. 9(b) (Suit-1) is answered against the
plaintiff (Suit-1) and it is held that the proceedings referred to
in para 15 of the written statement (Suit-1) cannot be said to be
collusive in the absence of placing anything before this court to
substantiate the same. In these circumstances, the question of
considering its effect does not arise.
1182. Issue No. 9(c) (Suit-1) is as under:
Are the said provisions of the U.P. Act 13 of 1936 ultra
vires for reasons given in the statement of plaintiff's
1380
counsel dated 9.3.62 recorded on paper no. 454-A?
1183. Sri P.D. Goswami, counsel for the plaintiff (Suit-1)
on 08/09.03.1962 made the following statement:
"Sri P.D. Goswami advocate for the plffs state that
the report of the commissioner spoken of in para 15 of the
W.S. has no effect on the rights of the plff nor do the
provisions of Sec 5(3) of U.P. Act 13 of 1936 apply to the
present suits as they are based on a right of worship of plff
who is a Hindu. According to him the provisions of this Act
are applicable to the property and the rights 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 repealed by
U.P. Act 16 of 1960. He further adds that in case the said
Act be considered applicable to the present suits it is ultra
vires the provisions of the Govt of India Act 1935 and is in
conflict with the Ancient Monuments Preservation Act (Act
No. VII of 1904)."
1184. As we have already held that firstly, there was no valid
notification under Section 5(1) of 1936 Act regarding the
property in dispute, and secondly, that the said Act does not
apply to non muslims, we do not find any occasion to go into
this issue further since the statement of the learned counsel itself
was conditional, i.e., if 1936 Act is held applicable to Suit-1 and
2 then it is ultra vires of the provisions of the Government of
India Act, 1935 and is in conflict with the Ancient Monument
Preservation Act (Act No. 7 of 1904).
1185. Even otherwise, we do not find as to how Act No. 7
of 1904 would come into picture in the case in hand. The
1381
aforesaid Act of 1904 was promulgated on 18.03.1904 with the
preamble as under:
Whereas it is expedient to provide for the
preservation of ancient monuments, for the exercise of
control over traffic in antiquities and over excavation in
certain places, and for the protection and acquisition in
certain cases of ancient monuments and of objects of
archaeological, historical or artistic interest.
1186. The statement of objects and reasons of 1904 Act
reads as under:
The object of this measure is to preserve to India its
ancient monuments in antiquities and to prevent the
excavation by unauthorised persons of sites of historic
interest and value.
2. In 1898 the question of antiquarian exploration
and research attracted attention and the necessity of taking
steps for the protection of monuments and relics of
antiquity was impressed upon the Government of India. It
was then apparent that legislation was required to enable
the Government to discharge their responsibilities in the
matter and a Bill was drafted on the lines of the existing
Acts of Parliament modified so as to embody certain
provisions which have found a place in recent legislation
regarding the antiquities of Greece and Italy. This draft
was circulated for the opinions of local Governments and
their replies submitted showed that the proposals
incorporated in it met with almost unanimous approval, the
criticism received being directed, for the most part, against
matters of detail. The draft has since been revised, the
provisions of the Draft Bill prepared by the Government of
1382
Bengal have been embodied so far as they were found
suitable and the present Bill is the result.
3.The first portion of the Bill deals with protection of
Ancient monuments an expression which has been
defined in clause 2 (now section 2). The measure will apply
only to such of these as are from time to time expressly
brought within its contents though being declared to be
protected monuments. A greater number of more famous
buildings in India are already in possession or under the
control of the Government; but there are others worthy of
preservation which are in the hands of private owners.
Some of these have already been insured or are fast falling
into decay. The preservation of these is the chief object of
the clause of the Bill now referred to and the provisions of
the Bill are in general accordance with the policy
enunciated in section 23 of the Religious Endowments Act,
1863 (20 of 1863), which recognises and saves the right of
the Government to prevent injury to and preserve
buildings remarkable in their antiquity and for their-
historical or architectural value or required for the
convenience of the public. The power to intervene is at
present limited to cases to which section 3 of the Bengal
Regulation 19 of 1810 or section 3 of the Madras
Regulation VII of 1817 applies. In framing the present Bill
the Government has aimed at having the necessity of good
will and securing the co-operation of the owners concerned
and it hopes that the action which it is proposed to take
may tend rather to the encouragement than to the
suppression of private effort. The Bill provides that the
owner or the manager of the building which merits greater
1383
care than it has been receiving may be invited to enter into
an agreement for its protection and that in the event of his
refusing to come to terms the collector may proceed to
acquire it compulsorily or take proper course to secure its
application. It has been made clear that there is to be no
resort to compulsory acquisition in the case the monument
is used in connection with religious observances or in other
case until the owner has had an opportunity of entering
into an agreement of the kind indicated above; and it is
expressly provided that the monument maintained by the
Government under the proposed Act, shall not be used for
any purpose inconsistent with its character or with purpose
of its foundation, and that, so far as is compatible with the
object in view the public shall have access to it free of
charge. By the 4
th
proviso of clause 11 (now section 10) it
is laid down that in assessing the value of the monument
for the purpose of compulsory acquisition under the Land
Acquisition Act, 1894 (1 of 1894) its archaeological,
artistic or historical merits shall not be taken into account.
The object of the Government as purchaser being to
preserve at the public expense and for the public benefits
an ancient monument with all its associations, it is
considered that the value of those associations should not
be paid for.
4. The second portion of the Bill deals with movable
objects of historical or artistic interest and these may be
divided into two classes; the first consists of ornaments,
enamels, silver and copper vessels, Persian and Arabian
Manuscripts, and curios general. These are for the most
part portable and consequently difficult to trade; they are
1384
as a rule artistic; are of historic interest and it would be
impracticable even were it desirable to prevent a dealer
from selling and a traveller from buying them. The
sculptural carvings, images, bas-reliefs, inscriptions and
the like form a distinct class by themselves, in that their
value depends upon their local connection. Such antiquities
may, as in the case of those of Swat, be found outside India
or in Native States and this the Legislature cannot reach
directly; while as regards the British territory and under
the existing law, it is impossible to go beyond the
provisions of the Indian Treasure Trove Act, 1878 (6 of
1878). (In these circumstances, it is proposed, by clause 18
of the Bill to take power to prevent the removal from
British India of any antiquities which it may be deemed
desirable to retain in the country, and at the same time to
present importation. By thus putting a stop on draft in such
articles it is believed that it will be possible to protect
against spoilation a number of interesting places situated
without and beyond British territory. Clause 19 aims at
providing for antiquities such as sculptures and
inscriptions which belong to another place and ought
therefore to be kept in situ or deposited in local museums.
The removal of these, it is proposed to enable the local
Government to prohibit by notification and the clause also
provides that, if the object is movable, the owner may
require the Government to purchase it outright and that, if
it is immovable the Government shall compensate the
owner for any loss caused to him by the prohibition. Clause
20 (now section 19) deals with the compulsory purchase of
such antiquities if that is found to be necessary for their
1385
preservation and the owner is not willing on personal or
religious grounds to part with them. In such cases it is
proposed that the price to be paid should be assessed by
the Collector, subject to a right of appeal to the local
government but it is for consideration whether the Land
Acquisition Act of 1894 should be followed and reference
to the Courts allowed.
5. The third portion of the Bill deals with excavations
and gives power to make rules to prohibit or regulate such
operations.
1187. The term ancient monument and antiquities are
defined in Section 2(1) and (2) of 1904 Act which read as under:
2(1) Ancient monument means any structure,
erection or monument or any tumulus or place of
interment, or any cave, rock-sculpture, inscription or
monolith, which is of historical, archaeological or artistic
interest, or any remains thereof, and includes--
(a) the site of an ancient monument;
(b) such portion of land adjoining the site of an
ancient monument as my be required for fencing or
covering in or otherwise preserving such monument;
and
(c) the means of access to and convenient inspection
of an ancient monument;
(2) antiquities include any movable objects which
the Central Government, by reason of their historical or
archaeological associations, may think it necessary to
protect against injury, removal or dispersion;
1188. The term owner is also defined in Section 2(6) as
under:
1386
2(6) owner includes a joint owner, invested with
power of management on behalf of himself and other joint
owners, and any manager or trustee exercising powers of
management over an ancient monument, and the successor
in title of any such owner and the successor in office of any
such manager or trustee:
Provided that nothing in this Act shall be deemed to
extend the powers which may lawfully be exercised by such
manager or trustee.
1189. Section 3 provides for protected monuments. It is
not the case of any of the parties that the disputed building was
ever notified by the Government as a protected monument
under Section 3 of 1903 Act.
1190. Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 are
applicable to a protected monument, i.e., an ancient
monument which is declared to be protected monument by
notification in the official gazette under Section 3 and, therefore,
ex facie would have no application to the property in dispute.
1191. Section 10A which was inserted in 1932 is only in
respect to control of the Central Government where it finds that
mining, quarrying, excavation, blasting and other operations of a
like nature needs to be restricted and regulated for the purpose
of protecting or preserving any ancient monument. This also
has nothing to do with the disputed property as there is no such
case of either party. We, therefore, find nothing in 1904 Act in
any manner to affect the provisions of 1936 Act.
1192. So far as the Government of India Act, 1935 is
concerned, learned counsel for the plaintiff (Suit-1) could not
show anything therein to substantiate his plea of ultra vires of
1936 Act. It is no doubt true that 1936 Act was repealed by U.P.
1387
Act No. XVI of 1960 but that by itself would not make anything
already done under 1936 Act redundant or illegal or non est. In
fact the transactions already taken place are duly protected
therein i.e. in 1960 Act. The counsel for the plaintiffs in fact
could not substantiate the plea so as to persuade this Court to
answer issue no. 9(c) (Suit-1) in his favour and it is accordingly
decided in negative.
1193. Now comes Issue No. 16 (Suit-3) which reads as
under:
Is the suit bad for want of notice u/s 83 of U.P. Act 13 of
1936?
1194. We find that there is no pleading to this effect i.e.
requirement of such notice, in the written statements of
defendants in Suit-3. In fact in para 27 of written statement of
defendant no. 10 (Suit-1) a plea of want of notice under Section
56 of 1936 Act has been taken which reads as under:
27. That the suit is not maintainable even on account of
the reason that no notice was served upon the Board as
required by section 56 of the U.P. Muslim Waqf Act, 1936
and the suit is liable to be dismissed even on this account.
1195. Learned counsel for the defendant (Suit-3) neither
could substantiate their case to support the above issue nor in
fact could place anything before this Court to assist us to
consider the above issue in an effective manner.
1196. In fact there is no Section 83 in 1936 Act. In the
written statement filed in Suit-3 by the defendants No.6 to 8
there is no such pleading with reference to any provision of
1936 Act alleging that the same bars the suit. The defendant
No.9, however, has stated before the Court that the plaint of
Suit-4 be treated as his written statement and there also we do
1388
not find any such pleading referring to any provision of 1936
Act on the basis whereof it is said that the suit is barred for want
of any notice. The only objection with reference to 1936 Act
taken is in para 9 and 10 of the plaint (Suit-4) which states that
the Commissioner of Waqfs made an enquiry with reference to
the disputed building as a public waqf and based thereon the
State Government issued a notification on 26
th
February, 1944
which having not been challenged by the Hindus or any person
interested denying the report of the Commissioner of the Waqfs
on the ground that it was a Muslim waqf or it was a Hindu
temple hence now it cannot be challenged. It is only in Suit-1,
the defendant No.10 in para 27 of its written statement has said
that due to absence of notice, as required by Section 56 of 1936
Act, the suit is not maintainable and is liable to be dismissed.
Even if we read issue 16 (Suit-3) that instead of Section 83 of
1936 Act, it ought to be Section 56 of 1936 Act, we do not find
that it requires any notice before filing a suit and in fact
reference to Section 56 is not correct, as is evident from a bare
perusal thereof, which is reproduced as under:
56. Appointment of mutawalli.- When there is vacancy in
the office of mutawalli of a waqf and there is no one
competent to be appointed under the terms of the deed of
waqf, or where the right of any person to act as mutawalli
is disputed, the Central Board may appoint any person to
act as a mutawalli for such period and on such conditions
as it may think fit.
1197. However, there is another Section 53 in 1936 Act
which contain some provision with reference to notice and reads
as under :
53. No suit shall be instituted against a Central Board in
1389
respect of any act purporting to be done by such Central
Board under colour of this Act or for any relief in respect
of any waqf, until the expiration of two months next after
notice in writing has been delivered to the Secretary, or left
at the office of such Central Board, stating the cause of
action, the name, description and place of residence of the
plaintiff and the relief which he claims ; and the plaint
shall contain a statement that such notice has been so
delivered or left.
1198. From a bare perusal of Section 53 of 1936 Act, it is
evident that its scope and purpose is wholly different. Even
otherwise, the requirement of notice under Section 53 in 1936
Act is akin to Section 80 CPC. The Apex Court in para 25 of the
judgment in Siraj-ul-Haq Khan (supra) has considered Section
53 and its effect and has observed that this Section is similar to
Section 80 of the Civil Procedure Code and thereafter having
said so further says that it was incumbent upon the appellants to
have given the requisite notice under Section 53 before
instituting the suit and failure to do so would bar the suit being
not maintainable. The parties before us were required to show as
to how Section 53 in the case in hand would be attracted to
which none has assisted the Court. However, as observed by the
Apex Court in Siraj-ul-Haq Khan (supra), the compliance is
mandatory where Section 53 is applicable. Without considering
the question as to whether the relief sought in Suit-3 would
attract Section 53 or not; and, proceeding by assuming that
Section 53 would apply, we are of the view that this provision
has been made for the benefit of Central Board concerned in
particular and Muslim communities in general. It is always open
to a party for whose benefit the provisions has been made to
1390
waive such benefit. This aspect we have already considered in
respect to the issues relating to Section 80 CPC above and
following the reasons as are applicable to Section 80 CPC, we
are of the view that the benefit under Section 53 can also be
waived. If non-issuance of notice and defect under Section 53 is
not pressed by the concerned Board before the Court, non-
compliance of Section 53 would not vitiate the suit. The issue is
answered accordingly.
1199. Issue 5(f) (Suit-4) relates to U.P. Act XVI of 1960
and reads as under:
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?
1200. In the written statement dated 20
th
July, 1968, filed
by defendants No.13 and 14 (Suit-4), it has been pleaded that
after the enforcement of U.P. Act XVI of 1960, the suit in
question having been filed in 1961, is not saved under Section
85(2) thereof. They further say that Section 9(2) of 1960 Act
also would not save the finality of the decision of the
Commissioner of Waqfs since 1936 Act itself having vanished
after repeal and therefore, the suit on behalf of Sunni Central
Waqf Board is wholly without jurisdiction.
1201. During the course of arguments, however, learned
counsel for the defendants could not substantiate the above
objection and could not show as to how Section 85(2) and
Section 9(2) of 1960 Act would be attracted in the case in hand
to make the suit without jurisdiction and beyond limitation. It is
true that notification issued under Section 5(1) of 1936 Act has
been held to be invalid so far as the property in dispute is
1391
concerned but in case the property in dispute is found to be
waqf, no provision in U.P. Act XVI of 1960 has been shown
which may deprive the Sunni Central Waqf Board or other
plaintiffs of Suit-4 to maintain the suit in respect to a property
which they claim to be a 'waqf property' and to claim its
possession in case it is not otherwise impermissible in law. At
least we are not able to find any provision under U.P. Act XVI
of 1960 which may prohibit either plaintiff No.1 (Suit-4) or
other plaintiffs from maintaining Suit-4 in question provided the
property in dispute is a waqf within the meaning of Shariyat
Law.
1202. In view of above, we do not find any substance and
decide issue 5 (f) (Suit-4) against the defendants and in favour
of the plaintiffs (Suit-4) holding that the suit in question is not
barred having been filed after the commencement of U.P. Act
No.XVI of 1960.
1203. Now we come to Issues 23 and 24 (Suit-4) which
can be considered together, and read as under:
Whether the Waqf board is an instrumentality of State? If
so, whether the said Board can file a suit against the State
itself?
If the Waqf Board is State under Article 12 of the
Constitution? If so, the said Board being the State can file
any suit in representative capacity sponsoring the case of
particular community and against the interest of another
community?
1204. The learned counsels for the defendants could not
point out any pleadings raising such objection therein. However,
they contended that since the Sunni Central Waqf Board has
been constituted under 1936 Act and therefore, being a statutory
1392
body, its constitution, function etc. can be looked into from the
various provisions of the statutory enactment and that itself
would be sufficient to give necessary information. Though
prima facie we find it difficult to accept the above proposition,
but, however, we proceed to consider the above issues analyzing
the relevant provisions of 1936 Act as well as 1960 Act to find
out whether there is any substance in these issues.
1205. It is not in dispute that Sunni Central Waqf Board
has been established under Section 6(1) of 1936 Act. Its
constitution is provided in Section 7 thereof. The two provisions
read as under:
6. Establishment of Central Boards.-(1) there shall be
established in the United Provinces two separate Boards to
be called the Shia Central Board and the Sunni
Central Board of waqfs. Each such Board shall be a body
corporate and shall have perpetual succession and a
common seal and shall by its said name sue or be sued.
7. Constitution of Sunni Central Board.- The Sunni
Central Board shall consist of-
(i) five members to be elected in the manner prescribed
by Sunni members of the local legislature,
(ii) four members to be elected in the manner prescribed
by the District Waqf Committees.
(iii) three members to be co-opted by the above nine
members from persons whom they regard as ulamas, and
two members from among mutawallis, and
(iv) the President, if he is not one of the above fourteen
members :
Provided that the first Sunni Central Board shall be
established by the local Government within three months of
1393
the date on which this section comes into force and shall
consist of-
(i) five members to be elected, in such manner as the
local Government may direct, by the Sunni members of the
local legislature;
(ii) two members to be elected, in such manner as the
local Government may direct, by the Sunni members of
Executive Committee of the Provincial Muslim Educational
Conference ;
(iii) three members to be co-opted by the above seven
members from persons whom they regard as ulamas ; and
(iv) three members to be co-opted by the above ten
members.
1206. Section 10 of 1936 Act provides that the members of
Central Board shall hold office for five years. Section 13 of
1936 Act provides for the place where the office of the Central
Board shall be located and Sections 14 to 17 of 1936 Act are in
respect to manner of function and requisite staff of such Board.
Section 18 of 1936 Act provides for the functions of the Central
Board which we have already referred to.
1207. Chapters 3, 4, 5, 6 and 7 of 1936 Act contain
provisions with regard to registration of waqfs, audit of
accounts, enquiry and supervision, legal proceedings and
administration charges. Chapter 8 of 1936 Act provides for
Mutawalli and Section 58 of 1936 Act confers powers upon the
Board to remove Mutawalli from his office in certain
circumstances. Section 68 of 1936 Act provides that the
Government shall not be liable for any expenditure incurred in
the administration of 1936 Act.
1208. From a perusal of 1936 Act, it is evident that the
1394
Central Sunni Waqf Board is a statutory body constituted in
accordance with the provisions of the said Act. By no stretch of
imagination it can be said to be either a Department of the State
Government or an instrumentality of the State Government.
1209. A similar question came up for consideration in
respect to the employees of certain statutory bodies like Jal
Nigam, Banks, Local Bodies etc. where the employees claim
themselves to be the Government employees as the bodies are
controlled by the Government but negativing the said contention
it was held by the Apex Court that the statutory bodies are
neither a Department or part and parcel of the State Government
nor the employees of the statutory bodies can be said to be the
Government employees.
1210. Being a statutory body constituted under statute
having powers, functions and duties, which the Waqf Board is
liable to perform, it may be covered by the term 'Other
Authority' under Article 12 of the Constitution of India but that
by itself would neither make it an instrumentality of the State
Government of U.P. nor would deprive it to file a suit where it is
aggrieved against some action of the State Government or its
authorities. The Waqf Board having been constituted with a
particular objective i.e. for the better governance, administration
and supervision of certain classes of Muslim Waqfs, from its
very nature, its duty is confined for the welfare of certain special
kind of properties of the persons of a particular community and
in particular religion i.e. Muslims. It will wholly be
misconceived to suggest that by representing or sponsoring the
cause of members of a particular community against another
community i.e. Muslims against Hindus, the Waqf Board is
causing discrimination though it is a State under Article 12 of
1395
the Constitution. No authority could be placed before this Court
binding upon us to take a view different than what we have
discussed above.
1211. On the contrary, we find support from a decision of
the Apex Court in Syed Yousuf Yar Khan and others Vs. Syed
Mohammed Yar Khan and others, AIR 1967 SC 1318 where a
somewhat similar contention was raised that the Waqf Board
is an agent of Central Government but rejecting the same the
Apex Court in para 4 of the judgment held as under:
(4) Counsel submitted that the present suit was a
suit by or on behalf of the State Government and was
therefore governed by art. 149 of the Indian Limitation Act
1908. He submitted that the Board of Muslim Endowments,
Hyderabad, which according to him was the Board of
Wakfs constituted under the Muslim Wakfs Act 1954, was
an agent of the Central Government. By s. 9(2) of the
Muslim Wakfs Act, 1954, the Board of Wakfs is a body
corporate and by s. 15 of this Act, the Board is vested with
the right of general superintendence of wakfs and is
empowered to take measures for the recovery of the lost
properties of any wakf and to initiate and defend suits and
proceedings relating to wakfs. Counsel submitted that a
corporation may be an agent of the State Government, and
in support of this contention relied upon Halsburys Laws
of England, 3rd Ed., Vol. 9, p. 10-Tamlin v. Hannaford
(1949) 2 All E. R. 327, and the observations of Shah, J. in
State Trading Corporation of India Limited v. The
Commercial Tax Officer, A.I.R. 1963 S.C. 811, 849, 850,
paras. 115-117. He submitted that the State Government
has delegated its functions of superintendence over wakfs
1396
to the Board of Wakfs and the Board should therefore be
regarded as an agent of the State Government. We are
unable to accept this contention. By the Religious
Endowments Act 1863, the Government divested itself of
the management and superintendence of religious
endowments which was vested in it under Regn. 19 of 1810
and Regulation 7 of 1817. The Board of Wakfs though
subject to the control of the State Government, is a
statutory corporation and is vested with statutory powers,
functions and duties. The Board has power to hold property
and is in control of the wakf fund (ss. 9 and 48). The State
Government has no concern with the property vested in the
Board save during the period of supersession of the Board
under s. 64. Nor is the State Government liable for any
expenditure incurred by the Board in connection with the
administration under the Act (S. 54). The Board of Wakfs is
not discharging a governmental function. The Act nowhere
says that the Board would act as the agent of the State
Government. It rather indicates that the Board is not the
agent of the Government and the Government is not
responsible for its acts. We must, therefore, hold that the
Board of Wakfs is not an agent of the State Government
and a suit instituted by it for the recovery of a wakf
property is not a suit by or on behalf of the State
Government.
1212. In Syed Yousuf Yar Khan (supra) the issue of
identifying mutawalli with the State Government was also
raised by contending that the mutawalli is an agent of the
Government in order to take the benefit of Article 149 of the
Limitation Act but that was also rejected by the Apex Court by
1397
observing:
5. Counsel next submitted that the mutawalli is the
agent of the State Government and that in any event the
limitation for a suit by the mutawalli starts on the date of
his appointment. In support of this contention counsel
relied upon the decision in Jewun Doss Sahoo v. Shah
Kubeer-ood-Deen, (1837-41) 2 Moo Ind. App. 390 at p.
422 (PC) where the Privy Council held that under the law
then in force it was the duty of the Government to protect
endowments and the mutawalli in that case was the
procurator of the Government and his right to sue arose on
his being appointed mutawalli. This ruling of the Privy
Council was given under Regulation 19 of 1810. Since the
passing of the Religious Endowments Act 1863, the
mutawalli cannot be regarded as a procurator of the
Government. He is not appointed by the Government, nor
does he manage the endowment on its behalf and a suit by
him for the recovery of the wakf property cannot now be
regarded as a suit on its behalf, see Shaikh Laul Mahomed
v. Lalla Brij Kishore, (1872) 17 Suth WR 430 and Behari
Lal and Ors. v. Muhammad Muttaki, (1898) ILR 20 All.
482 at p. 488 (FB).
1213. In view of the above, we find it difficult to hold that
the Waqf Board is an instrumentality of the State. However,
even if it is an instrumentality of State, we do not find any
disability for the Board to file a suit against the State if there is
any wrong done by the State or its authorities. In our view, the
issue which has been raised to suggest as if the Sunni Central
Waqf Board if held as an instrumentality of the State, would be
incompetent to maintain a suit against the State is thoroughly
1398
misconceived.
1214. The concept of instrumentality of the State came
to be noticed in the light of considering the applicability of Part
III of the Constitution of India dealing with fundamental rights
vis a vis the meaning of the words other authority under
Article 12 of the Constitution. To find out the bodies to whom
Part III of the Constitution would apply, and if there is any
infringement etc., the complaint may be raised before the High
Court or the Supreme Court directly under writ jurisdiction also
this concept was developed. To understand the concept, it would
be prudent to have a perusal of Article 12 of the Constitution :
Article 12. In this Part, unless the context otherwise
requires, the State includes the Government and
Parliament of India and the Government and the
Legislature of each of the States and all local or other
authorities within the territory of India or under the control
of the Government of India.
1215. The Central and State Governments, the legislatures,
Central and Provincial, and, Local authorities are obviously
covered by the term the State under Article 12. The question
arose as to what are the bodies which would answer the
description of other authorities so as to qualify to be within
the ambit of the word 'the State' to attract Part-III of the
Constitution. In Ramana Dayaram Shetty Vs. International
Airport Authority of India and others, 1979 (3) SCC 489 the
question arose as to whether International Airport Authority of
India is the State within the meaning of Article 12 so as to
attract the provisions under Part-III of the Constitution.
Admittedly, International Airport Authority of India was
neither the Government, Central or State, nor Legislature nor a
1399
Local authority. The question arose as to whether the words
other authorities within the territory of India or under the
control of the Government of India would include International
Airport Authority of India so as to attract the provisions under
Part-III of the Constitution. In this context the matter was
examined. The Apex Court held that International Airport
Authority of India is 'the State' within the meaning of Article
12 of the Constitution of India and, therefore, the provisions of
Article 14 are attracted. If the act or omission on the part of
International Authority of India is found to be arbitrary or
discriminatory.
1216. There are catena of decision on this aspect but it
may not be necessary for us to consider in detail all such
authorities laying down various tests to determine when a body
or authority can be said to be an instrumentality of the State
so as to be within the ambit of the words other authorities for
the purposes of Article 12 of the Constitution of India for the
reason that in case a body qualify such tests and becomes an
instrumentality of the State and, therefore, becomes an
authority within the words other authorities under Article 12
of the Constitution, the result would be that provisions of Part-
III of the Constitution would be applicable to it and any
infringement thereof would be subject to judicial review directly
before the superior courts in writ jurisdiction, i.e., under Article
226 of the Constitution of India as also under Article 32 of the
Constitution. For our purposes suffice it to mention that an
instrumentality of the State does not mean a department of
the State Government.
1217. The learned counsels for the defendants, despite of
repeated query, could not tell us as to how an instrumentality of
1400
the State cannot invoke the jurisdiction of a Civil Court for
enforcing its common law rights by filing a civil suit. It appears
that misconception on the part of the defendants in Suit-4 is that
an instrumentality of the State, if comes within the words 'the
State' under Article 12 of the Constitution, the distinction of
personality between the State Government as well as such
instrumentality disappear and, therefore, one may not file suit
against another. This is apparently fallacious and lacks
substance. A body incorporated in accordance with the
procedure prescribed by statute or a statutory body, i.e.,
constituted under a statute or by a statute, on its own is a juristic
personality, i.e., legal person, who can possess property, enter
into transactions by executing contract with the other persons
(including natural, legal or juristic persons) and also to sue or be
sued. An authority or statutory body which can be said to be an
instrumentality of the State does not become necessarily a part
and parcel of the Government.
1218. The term 'Government' in its wider sense includes
all the wings of Government, viz., executive, legislative or
judicial but in narrower sense, it is normally the executive wing
of the State.
1219. Bombay High Court in Emperor Vs. Bhaskar
Balwant Bhopatkar, (1906) ILR 30 Bom 421 observed:
What is contemplated under this section is the
collective body of the Government . . . . . It means that the
person or persons collectively, in succession, who are
authorized to administer the Government for the time
being. One particular set of persons may be open to
objection and to assail them, and to attack them and excite
hatred against them, is not necessarily exciting hatred
1401
against the Government, because they are only individuals
and not representatives of that abstract conception which is
called Government . . . . . The individual is transitory and
may be separately criticized but that which is essentially
and inseparably connected with the idea of Government
established by law cannot be attacked without coming
within this section.
1220. In Annie Besant Vs. Government of Madras, AIR
1918 Mad 1210, Madras High Court said:
Government denotes an established authority entitled and
able to administer the public affairs of the country. On the
other hand, 'Government' is not identical with any
particular individuals who may be administering the
Government.
1221. Dixon J. in Burns Vs. Ransley, (1944) 79 CLR 101
explaining the word Government as under:
I take the word Government to signify the
established system of political rules, the governing
powers of the country consisting of the executive and
the Legislature considered as an organized entity and
independently of the persons of whom it consists from
time to time. Any interpretation which would make
the word cover the persons who happen to fill
political or public offices for the time being, whether
considered collectively or individually, would give
the provision an application inconsistent with the
parliamentary and democratic institutions and with
the principles of the common law as understood in
times, Governing the freedom of criticism and of
expression.
1402
1222. A Full Bench of this court in Ram Nandan Vs.
State, AIR 1959 All 101 observed that the term Government
has not been defined anywhere. Considering various provisions
of the Constitution this Court observed that the Government
means the executive machinery of the Union and of the States. It
means the President acting with the advice of the Council of
Ministers and the Governors acting with the advice of their
Councils of Ministers. It is the system of Government or
institution consisting of the President and the Governors acting
with the advice of their Councils of Ministers and not the actual
persons holding the offices of Presidents or Governors and the
Ministers advising them. This Court quoted the approval and
followed the observations of Bombay and Madras as noted
above in Bhaskar Balwant Bhopatkar (supra) and Annie
Besant (supra) respectively.
1223. In State of U.P. Vs. Nemchandra Jain, 1984 (2)
SCC 405 the term Government was analyzed by the Apex
Court observing that from the legal point of view, Government
may be described as the exercise of certain powers and the
performance of certain duties by public authorities or officers,
together with certain private persons or corporations exercising
public functions. The structure of the machinery of Government,
and the regulation of the powers and duties which belong to
different parts of this structure, are defined by the law, which
also prescribes, to some extent, the mode in which these powers
are to be exercised or those duties are to be performed.
Government generally connotes three estates, namely, the
Legislature, the Executive and the Judiciary. In a narrow sense it
connotes executive only.
1224. The word Government has been defined in
1403
Section 3(23) of the General Clauses Act, 1897 as under:
3(23). Government.--This sub-section says that
the terms Government or the Government, shall
include both the Central Government and any State
Government.
1225. The term State Government has also been defined
in the General Clauses Act, 1897 in Section 3(60). The above
definition of General Clauses Act in fact does not give any exact
meaning except of referring the words, in general and in broader
sense.
1226. The Constitution declares the Government being
entitled to file a suit or to be sued by virtue of Article 300 of the
Constitution which reads as under :
Article 300. (1) The Government of India may sue
or be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of
the State and may, subject to any provisions which may be
made by Act of Parliament or of the Legislature of such
State enacted by virtue of powers conferred by this
Constitution, sue or be sued in relation to their respective
affairs in the like cases as the Dominion of India and the
corresponding Provinces or the corresponding Indian
States might have sued or been sued if this Constitution had
not been enacted.
(2) If at the commencement of this Constitution--
(a) any legal proceedings are pending to which the
Dominion of India is a party, the Union of India
shall be deemed to be substituted for the
Dominion in those proceedings; and
(b) any legal proceedings are pending to which a
1404
Province or an Indian State is a party, the
corresponding State shall be deemed to be
substituted for the Province or the Indian State in
those proceedings.
1227. Similarly, Section 79 C.P.C. provides for suits to be
filed by or against the Government, as under :
Section 79. Suits by or against the Government
In a suit by or against the Government, the authority to be
named as plaintiff or defendant, as the case may be, shall
be
(a) in the case of a suit by or against the Central
Government, the Union of India, and
(b) in the case of a suit by or against a State
Government, the State.
1228. Interpreting Article 300 of the Constitution of India
the Apex Court in State of Punjab Vs. Okara Grain Buyers
Syndicate Ltd. and others, AIR 1964 SC 669 observed that this
Article does not give rise to any cause of action but merely says
that the State can sue or be sued as a juristic personality. The
juristic personality of the State is conferred as a whole which
consists of the executive government headed by the Governor
and it is not divided into various branches or department of the
Government so as to result constituting such number of juristic
personality as are the departments in a State Government.
1229. Nothing has been brought to us and neither any
authority has been cited nor anything else has been placed
before us to persuade us to take a view that the Sunni Central
Waqf Board can be held to be a department of the State
Government so as to bar a suit against the State Government.
Had it been a department of the Government obviously a civil
1405
suit under Section 9 CPC would not be maintainable for the
reason that the State Government is a juristic personality as a
whole which consists of all its limbs, i.e., various departments
etc. Each and every department of the State Government cannot
be said to be an independent juristic personality which can
sue or be sued.
1230. The term department of a State Government also
came to be considered before this Court in Ram Chandra Vs.
District Magistrate, AIR 1952 All. 520 and this Court held that
a department is a unit or branch of the Government, either
Union or State, under the political control of a Minister or
Secretary of State or President of the Board. Individual officers
serving under a department do not constitute a department. The
department has an entity distinct and separate from the officers
serving under it.
1231. Drawing distinction between the Government and
Instrumentality of the State within meaning of Article 12 of
the Constitution in reference to Section 80 C.P.C. the question
arose as to whether notice before filing a suit is a condition
precedent to Electricity Board or not. The High Court of Kerala
in V.Padmanabhan Nair Vs. Kerala State Electricity Board
AIR 1989 Kerala 86 held that the statutory bodies like
Electricity Board, Food Corporation, Urban Development
Corporation etc. may be an Instrumentality of the State within
the meaning of Article 12 of the Constitution, nevertheless
would not answer the description of Government as
understood in law and has understood in the context of Section
80 C.P.C.
1232. We have referred to the term Government in detail
only to demonstrate that the personality of the Government for
1406
the purpose of being sued or to sue is not to be looked into as
further divided in various departments but it is the entire
executive government including all its departments which
constitute the Government, a legal personality, having status
to sue or be sued in that capacity.
1233. Where there is a dispute between two States of the
Union of India or between one or more States and the Union of
India, Article 131 of the Constitution confers original
jurisdiction upon the Apex Court in regard to resolution of such
dispute. In this context, the Apex Court in Chief Conservator of
Forests, Government of Andhra Pradesh Vs. Collector and
others, AIR 2003 SC 1805 observed that neither the
Constitution of India nor CPC contemplates that two
departments of a State or the Union of India will fight a
litigation in a Court of law. It is neither appropriate nor
permissible for two departments of the State to fight litigation
in a Court of law. Various departments of the Government are
its limbs and, therefore, they must act in coordination and not in
confrontation. Although that was a case with respect to the
justification of filing a writ petition yet the Apex Court
deprecated the attempt of filing writ petition by one department
against another and invoking extraordinary jurisdiction of the
High Court. The Court observed that it smacks of indiscipline. It
also held to be contrary to the basic concept of law that requires
for suing or be sued there must be either a natural or juristic
person.
1234. In para 13 of the judgment, the Court held:
Every post in the hierarchy of the posts in the
Government set-up, from the lowest to the highest, is not
recognised as a juristic person nor can the State be treated
1407
as represented when a suit/proceeding is in the name of
such offices/posts or the officers holding such posts,
therefore, in the absence of the State in the array of parties,
the cause will be defeated for non-joinder of a necessary
party to the lis...
1235. It was made clear that the above principle does not
apply to a case where an official of the Government acts as a
statutory authority and sues or pursues further proceeding in its
name because in that event, it will not be a suit or proceeding
for or on behalf of a State /Union of India but by the statutory
authority as such.
1236. With respect to the two departments fighting with
each other, in para 14 of the judgment, the Court observed:
It was not contemplated by the framers of the Constitution
or the C. P. C. that two departments of a State or the Union
of India will fight a litigation in a court of law. It is neither
appropriate nor permissible for two departments of a State
or the Union of India to fight litigation in a court of law.
Indeed, such a course cannot but be detrimental to the
public interest as it also entails avoidable wastage of
public money and time. Various departments of the
Government are its limbs and, therefore, they must act in
co-ordination and not in confrontation. Filing of a writ
petition by one department against the other by invoking
the extraordinary jurisdiction of the High Court is not only
against the propriety and polity as it smacks of undiscipline
but is also contrary to the basic concept of law which
requires that for suing or being sued, there must be either a
natural or a juristic person.
1237. Best C.J. in Neale Vs. Turton (1827) 4 Bing. 149 at
1408
page 151 observed that there is no principle by which a man can
be at the the same time plaintiff and defendant. Sometimes it
may happen that a person may be having different capacities in
which he may act but as opined by Salmond in Salmond On
Jurisprudence (supra) a man having two or more capacities
would not derive a power to enter into a legal transaction with
himself. Double capacity does not connote double personality.
In certain circumstances, now by statute this concept has been
diluted but so far as the two departments of the Government are
concerned, the law of the land as already noticed above, is
holding the field and we need not deal into this aspect any
further.
1238. Thus, it is now settled that a department of the
Government by itself has no legal personality and, therefore, it
lacks capacity to sue or be sued ignoring the personality of the
State. A department of the Government can always sue or be
sued under the cover of the personality of the State and not of its
own.
1239. This concept, however, would not apply to the cases
where a statutory body or an incorporated body on its own enjoy
the capacity of legal persona and, therefore, is well within its
right to sue or be sued under its own name.
1240. Nobody could suggest in these cases that the Sunni
Central Waqfs Board can be said to be a department of the
Government. It cannot thus be identified with the Government.
Once it is clear that the Waqfs Board has a different and
independent juristic personality than the Government, in the
absence of any prohibition or bar either specifically or by or
necessary implication in the statute, filing of a suit by one
individual juristic personality against another cannot be
1409
objected. Exclusion of remedy by way of filing a civil suit
cannot be assumed easily and unless there is an express or by
necessary implication a bar provided by the statute, a suit under
Section 9 cannot be held not maintainable. Though we have
expressly held that Sunni Central Waqfs Board is not an
instrumentality of the State, yet even if it is so, we are clearly of
the view that there is no impediment in its way in filing a suit in
its own name against the State or its authorities for redressal of
its grievance, if there is anything wrong by such authority.
1241. So far as the second issue that if it is a State" within
Article 12 of the Constitution, it may not act in a manner which
may amount to discrimination against one set of community, we
have already said and at the pain of repetition hold that the
statutory functions of the Waqfs Board is to supervise the
management of the Waqfs registered in various manners as
provided in the statute and in such discharge of duty, it can take
all such steps as permissible in law irrespective of fact whether
such step is against an individual of a different religion or the
entire community of different faith.
1242. Looking the matter in a wider concept, the act of the
Sunni Central Central Waqfs Board in filing Suit-4 even
otherwise cannot be said to be an act discriminatory to a
community inasmuch treating the disputed property as a Waqf
created in accordance with the Islamic laws, the Board is trying
to protect the same from being usurped by anybody else, be that
it is an individual or a group of individuals or the entire
community and in this respect if in a particular manner all such
persons constitute members of a particular community, that will
not make the act of the Sunni Central Waqfs Board
discriminatory or/and against a particular community.
1410
1243. We answer both the above issues accordingly. We
hold that neither the Waqf Board is an Instrumentality of the
State nor it suffers any disability of filing a suit against State
Government or its authorities nor there is anything wrong in the
Waqf Board to file a suit representing the cause of Muslim
community particularly for protection of a property which it
claims to be a waqf property. This is the principal function
under the Act 1936, substituted by various subsequent Acts, as
discussed above. Even if the Waqf Board is treated to be an
other authority under Article 12 of the Constitution and
covered by the term 'State' as defined under Article 12 of the
Constitution, there is no impediment in the way of Sunni Central
Waqfs Board in maintaining its suit.
1244. Issue 28 (Suit-5) reads as under:
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.
1245. Defendant No.4-Sunni Central Waqf Board (Suit-5)
in para 45 of the written statement dated 26/29 August, 1989 has
pleaded about the non-maintainability of suit for want of notice
and it reads as under:
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
1411
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).
1246. To examine the correctness of the above objection,
let us consider Section 65 of U.P. Act No.XVI of 1960 which
reads as under :
Notice of suits by parties against the Board.- No suit
shall be instituted against the Board in respect of any act
purporting to be done by it in pursuance of this Act or of
any rules made thereunder until the expiration of two
months, next after notice in writing has been delivered to
or left at the office of the Board, stating the cause of action
the name, description and place of residence of the plaintiff
and the relief which he claims; and the plaint shall contain
a statement that such notice has been so delivered or left.
1247. From a bare reading of Section 65 of 1960 Act it is
evident that the same would apply where a suit is filed
questioning the validity of any action of the Waqf Board. It
clearly says that in respect of any act purporting to be done by
the Board in pursuance of 1960 Act or of any rules made
thereunder, if a suit is filed, the same would not be maintainable
unless a two months' notice has been given in writing to the
Board giving the details, as mentioned in the aforesaid
provision. Suit-5 does not challenge any action of the Waqf
1412
Board taken under 1960 Act or the rules framed thereunder. Ex
facie, the above provision is inapplicable considering the relief
sought by the plaintiffs (Suit-5) which is confined to a
declaration that the property in dispute therein belong to
plaintiffs themselves and have sought a permanent injunction
against the defendants prohibiting them from interfering with or
raising any objection or placing any obstruction in construction
of a new temple at the disputed site.
1248. Learned counsel for the defendants 4 and 5 (Suit-5)
could not show as to how Section 65 would be attracted in
respect of Suit-5. In fact they could not show that any action of
the Waqf Board taken under 1960 Act or rules framed
thereunder has been the cause of action for filing Suit-5. We
therefore, have no hesitation in holding Section 65 of U.P. Act
No.XVI of 1960 has no application in respect to the reliefs
sought in Suit-5 and therefore, the suit cannot be held not
maintainable for want of notice.
1249. Since the provisions itself is not applicable, as we
have said, the question of considering its effect does not arise.
The issue is answered accordingly.
1250. Though no such issue specifically has been framed,
but during the course of argument Sri P.N.Mishra, learned
counsel appearing for defendant No.20 (Suit 4) pointed out that
U.P. Act No.XVI of 1960 has been repealed by Central Act No.
43 of 1995 i.e. Waqf Act, 1995 (hereinafter referred to as '1995
Act')which has came into force on 01.01.1996. He drew our
attention to Section 112 of 1995 Act which read as under :
Repeal and savings.-(1) The Waqf Act, 1954 (29 of 1954)
and the Waqf (Amendment) Act, 1984 (69 of 1984) are
hereby repealed.
1413
(2) Notwithstanding such repeal, anything done or any
action taken under the said Acts shall be deemed to have
been done or taken under the corresponding provisions of
this Act.
(3) If, immediately before the commencement of this Act,
in any State, there is in force in that State, any law which
corresponds to this Act that corresponding law shall shall
stand repealed;
Provided that such repeal shall not affect the
previous operation of that corresponding law, and subject
thereto, anything done or any action taken in the exercise
of any power conferred by or under the corresponding law
shall be deemed to have been done or taken in the exercise
of the powers conferred by or under this Act as if this Act
was in force on the day on which such things were action
was taken.
1251. He submits that since all State Laws have also been
repealed by sub-section (3) of Section 112, U.P. Act No.XVI of
1960 is no more operative since 1
st
January, 1996. He also drew
our attention to Section 87 of 1995 Act which reads as under :
87. Bar to the enforcement of right on behalf of
unregistered waqfs.-(1) Notwithstanding anything
contained in any other law for the time being in force, no
suit, appeal or other legal proceeding for the enforcement
of any right on behalf of any waqf which has not been
registered in accordance with the provisions of this Act,
shall be instituted or commenced or heard, tried or decided
by any Court after the commencement of this Act, or where
any such suit, appeal or other legal proceeding had been
instituted or commenced before such commencement, no
1414
such suit, appeal or other legal proceeding shall be
continued, heard, tried or decided by any Court after such
commencement unless such waqf has been registered, in
accordance with the provisions of this Act.
(2) The provisions of sub-section (1) shall apply as far as
may be, to the claim for set-off or any other claim made on
behalf of any waqf which has not been registered in
accordance with the provisions of this Act.
1252. It is contended by him that the notification dated 26
th
February, 1944 in respect to the property having been held
invalid, no suit in respect to an unregistered waqf is
maintainable and Section 87 encompass even the pending suits.
He submits that even hearing or trial of the pending suit in
respect to an unregistered waqf is not permissible.
1253. Sri Jilani, learned counsel for the plaintiffs (Suit-4)
raised serious objection to the above argument pointing out that
since no such issue has been framed, it would not be permissible
for this Court to look into this aspect of the matter and the above
argument has to be rejected outright as not entertainable.
1254. We gave our serious thought to the matter. Since
Section 87 of 1995 Act prohibits even pending suits from being
heard and tried in respect to an unregistered waqf and this being
a mandate of law, this Court cannot ignore the same merely
because there is no formal issue framed in this respect
particularly considering the fact that enactment of 1995 Act is a
subsequent event and the said Act has come into force during
the pendency of this matter i.e. at the stage when this Court
started recording evidence. However, we find that the question
whether Suit-4 cannot proceed by virtue of the mandate contain
in Section 87 of 1995 Act is not a pure question of law since
1415
condition precedent for attracting the said provision is that the
waqf has not been registered with the Board at all.
1255. Despite our enquiry from the learned counsel for the
defendant No.20, Sri Mishra could not show any such pleading
in the written statement or additional written statement. In fact
no such averment has been made in any of the written statement
or additional written statement of any of the defendants that the
property in dispute is not a registered waqf.
1256. On the contrary, Sri Jilani drew our attention to his
written statement dated 26/29 August, 1989, para 45 (quoted
above) (Suit-5) and para 16 of the written statement dated
24.2.1989 of defendant no. 10 (Suit-1) wherein it is averred that
the property in question is a waqf property registered as a waqf
in the register of waqf maintained by the Sunni Waqf Board
under Section 30 of Act XVI of 1960. Sri Jilani pointed out that
Section 30 of U.P. Act No.XVI of 1960 provides for register of
waqfs, which is to be maintained by the Board containing details
of each such waqfs.
1257. It is not the case of any of the defendants (Suit-4)
that there is no registration or that registration was not done
validly in accordance with the procedure prescribed under the
Act or the averments contained in para 45 of the written
statement of defendants No.4 (Suit-5) or para 16 of the written
statement of defendant no. 10 (Suit-1) is factually incorrect.
Since the question as to whether a particular waqf property is a
registered one or unregistered one is a question of fact and there
being an averment stating that the disputed property is a
registered waqf, which has not been pleaded to be incorrect by
the other side, we are of the view that Suit -4 filed by the Waqf
Board and others cannot be held not maintainable by virtue of
1416
Section 87 of 1995 Act.
1258. It would also be important to notice that the
Notification under Section 5 of Act of 1936 was held invalid by
the learned Civil Judge in 1966, to be more precise on 21
st
April,
1966. The defendant No.4 had filed its written statement in Suit
5 on 26/29 August, 1989 stating that the property in question is
registered as waqf in the register of waqfs maintained by the
Board under Section 30 of Act 16 of 1960. There are three ways
in which details of Muslim waqfs can be collected and thereafter
they are to be entered in the register maintained by the Board;
(i) pursuant to the notification issued by the Board after enquiry
made by the Waqf Commissioner; (ii) On an application made
by the Mutwalli of the concerned waqf; and (iii) Suo moto by
issuing notice by the Board to the Mutawalli of the Waqf..
1259. The averments that the disputed building is
registered as 'waqf' in the Board under Section 30 of Act 16 of
1960 having not been seriously challenged by the plaintiffs
(Suit-5), no issue on this aspect has been framed. Lots of
amendments were made in the pleadings after the decision of
the Apex Court in Dr. Mohammad Ismail (supra) but no
amendment or addition of any issue in this regard has been
found necessary by any of the parties opposing the authority of
the Sunni Board in pursuing Suit-4 as plaintiff or other suits as
defendant. Mere declaration of the Notification issued under
Section 5 of Act 1936 as invalid would not deprive the Sunni
Board to take steps for registration of the building in dispute as
waqf in the register maintained by it under Act 16 of 1960. In
the absence of any factual foundation, it would not be justified
for this Court to take recourse of Section 87 of 1995 Act and
non suit Sunni Board or other muslim parties.
1417
1260. Sri Mishra, however, made some detailed legal
arguments on this aspects hence we propose to consider such
submissions to find out substance, if any, therein.
1261. It is said that Section 87 has a non obstante clause
and therefore its mandate shall prevail not only over any
contract but to any other law for the time being in force.
Reliance is placed on Union of India and Others Vs. SICOM
Ltd. and Anr. 2009 AIR SCW 635 (at page 638) where para 3
reads as under:
3. Mr. Shekhar Naphade, Learned senior counsel
appearing on behalf of the respondent, on the other hand,
submitted that principle that a crown debt prevails over
other debt is confined only to the unsecured ones as
secured debts will always prevail over a crown debt. Our
attention in this behalf has been drawn to the non obstante
clause contained in Section 56 of the 1951 Act. It was
furthermore contendd that for the self-same reason Section
529A in the Companies Act was inserted in terms by way of
special provisions creating charge over the property and
some of the State Government also amended their Sales
Tax Laws incorporating such a provision. The Central
Government also with that view, amended the Employees
Provident Funds and (Miscellaneous) Provisions Act, 1952
and Employees State Insurance Act, 1948.
The learned counsel appears to be right.
1262. Reliance is also placed on State Bank of India Vs.
Official Liquidator of Commercial Ahmedabad Mills Co. and
Others 2009 CLC 73 where Gujrat High Court in para 13 of the
judgement observed:
Section 529-A of the Act opens with a non obstante
1418
clause Therefore, the said provision has an over writing
effect not only qua the provisions of the act but also any
other law for the time being in force....
1263. The proposition with respect to a provision having
non obstante clause being a well established legal principal
admits no doubt. However this by itself may not result in any
consequence to the suits in question.
1264. Sri Mishra further submitted that the prohibition
contained against unregistered waqf is quite reasonable and in
accord with the judgement of the Apex Court in Bhandara
District Central Cooperative Bank Ltd. and Others Vs. State
of Maharashtra and Anr. 1993 Supp (3) SCC 259 wherein
Section 145 of Maharashtra Cooperative Societies Act, 1996,
which barred an unregistered society from using the word
cooperative in its name or title, was held reasonable and in the
interest of general public. There is no challenge to the
correctness of Section 87 of 1995 Act and therefore, in our
view, the aforesaid submission and the authority cited would
have no application in this case.
1265. Relying on a decision of Andhra Pradesh High
Court in Pamulapati Buchi Naidu College Committee
Nidubroly and Ors. Vs. Government of Andhra Pradesh and
Ors. AIR 1958 A.P. 773, it was submitted that registration of
waqf confers right upon the Sunni Central Board of Waqf to sue
or be sued in respect of the affairs and properties of the
registered waqf while in case of unregistered waqf of alleged
Babari Masjid, the Sunni Central Board of Waqf has no right to
maintain Suit-4. In the above decision it was held that if a
society is not registered under the Act, it would have the
character of an association which cannot sue or be sued except
1419
in the name of all the members of the association. Registration
of the society confers on it certain advantages. Once the society
is registered, it enjoins the status of a legal entity apart from the
members constituting the same and is capable of suing or being
sued. To the same effect is another authority relied by Sri
Mishra i.e. Radhasoami Satsang Sabha Dayalbag Vs.
Hanskumar Kishanchand AIR 1959 MP 172 wherein the
Court said that the registration under the Societies Registration
Act confers on a society a legal personality and make it
corporation or quasi corporation capable of entering into
contracts.
1266. In our view, the submission as well as the reliance
on the aforesaid judgments in the case in hand is thoroughly
misconceived though the ratio of the said authorities is
unexceptionable. It is not the case of defendant No.20 that the
Sunni Central Waqf Board, a statutory body, was not constituted
in accordance with the provisions contained in U.P. Act, 1936.
The U.P. Muslims Waqf Act whether of 1936 or 1960 or the
Central Waqf Acts of 1954 or 1995 neither create a waqf nor
extinguish one, if it already exists. They recognize the waqfs
created and existing in accordance with the law of Islam and
make provisions for proper administration and maintenance
thereof primarily so as to avoid any maladministration,
misfeasance of waqf property. Registration of waqf in effect,
considering in the light of the provisions of the aforesaid
enactments, only means that the waqf is known to the concerned
Waqf Board as to whether it is a Shia waqf or Sunni waqf and
having entered their name in the register, the concerned Board
should be in a capacity to supervise management and
administration etc. of such waqfs. The purpose of enactment is
1420
public interest so that the waqf property may not be
misappropriated or misused. With this objective the legislature
intend to compel so as to have a complete picture of all existing
valid waqfs created in accordance with Islamic law, has made
such provision. By itself, it neither affects the existence of a
waqf which though created in accordance with the Islamic law
but for one or the other reason could not have been entered in
the register of the concerned Waqf Board nor extinguish it.
Besides, Section 87 it does not say that a pending suit in respect
of a waqf which has not been registered shall stand abated or be
dismissed but provides that it shall not be tried, or heard or
decided by the Court, after the commencement of the Act,
unless such waqf has been registered in accordance with the
provisions of 1995 Act. Meaning thereby even during pendency
of a matter, such a waqf can be registered by the Waqf Board
and thereafter the suit, if pending but deferred, would continue
and can be heard and decided.
1267. It is also contended that under U.P. Act, 1936, a
waqf can be registered by the Sunni Board pursuant to its name
find mention in the gazette issued by the Central Board under
Section 5(1) or if it is registered on an application of Mutawalli
under Section 38(2) or where the Central Waqf Board has issued
direction to concerned Mutawalli to apply for registration of a
waqf or supply any information regarding waqf. It is said that
the notification dated 26
th
February 1944 qua the alleged waqf in
question having been declared invalid, registration based
thereon also becomes null and void. Further that there is no
registration as per the procedure prescribed in Section 38 or 40
of 1936 Act, it cannot be said that the Sunni Board can maintain
a suit on behalf of such a waqf since Section 18(1) and (2)
1421
enable the concerned Board to maintain suit in respect of
administration and recovery of lost properties only of those
waqfs to which the provision of the Act applies. It is contended
that the Act being inapplicable to waqf in question due to its non
registration, the plaintiffs have no right to maintain Suit-4 and it
is liable to be dismissed.
1268. In our view, there is no occasion to consider this
aspect of the matter for reasons more than one. The notification
under Section 5(1) of 1936 Act has been held invalid so far as
the alleged waqf in question is concerned. This is not disputed
by the learned counsels appearing for the plaintiffs (Suit-4).
However, there is a presumption on the part of the defendant
No.20 that the alleged registration claimed by the plaintiffs
(Suit-4) in para 45 of written statement in Suit-5 is based on the
notification dated 26
th
February, 1944 and none else though
defendant 4 (Suit-5) (Central Sunni Waqf Board) has taken this
stand in para 45 of their written statement by referring to
Section 30 of Act 16 of 1960 and not that of U.P. Act, 1936.
There is no averment in pleadings of any of the Hindu parties
including defendant No.20 that this averment of defendant No.4
in Suit No.5 is incorrect or that there is no registration of the
waqf in question at all. In the absence of any such facts pleaded
by the concerned parties and in particular defendant no. 20, we
find no reason to consider this aspect of the matter merely on
the presumption of defendant No.2 particularly when the
question is a mixed question of fact and law and in the absence
of specific factual pleading, it would not be appropriate to
presume certain facts and thereafter decide the applicability of
Section 87 of 1995 Act in this case.
1269. In the written submissions Volume 2 at page 254
1422
para 11 it has been contended by Sri Mishra:
"As after invalidation of notification under Section 5(1) of
the United Provinces Act, 1936 neither fresh survey of the
waqf in question was caused under Section 6 of the
Uttar Pradesh Muslim Wakfs Act, 1960 nor application
for registration was made under Section 29(2) of the
said Act of 1960 within a period of three months nor the
Board did take any steps for registration of the said wakf
under Section 31 of the said Act of 1960. The alleged
wakf remained unregistered wakf to which neither 1936 Act
nor 1960 Act or 1995 Act are applicable as such the
Plaintiff Wakf Board has no locus standi and instant Suit is
hit by the provision of Section 87(1) of the Wakf Act, 1995.
As such, the instant suit is not fit for being continued,
heard, tried or decided and is liable to be dismissed on this
score alone."
1270. In respect to the procedure to be followed under
1960 Act without there being any pleading, the learned counsel
has presumed that neither any registration was made under
Section 29(2) nor any steps were taken under Section 31 of Act
16 of 1960 nor any fresh survey of the waqf in question was
made under Section 6 of the aforesaid Act, hence the waqf in
question remain unregistered. In the absence of any pleading,
we find it difficult to entertain the above submission involving
pure factual aspects which ought to have been pleaded.
Reference is also made to Section 66E of Waqf Act, 1954 but
Sri Mishra, learned counsel could not dispute that Waqf Act,
1954, which was a Central Act, was not made applicable to the
State of Uttar Pradesh and therefore, reliance on the said
provision is wholly misplaced.
1423
1271. Sri Mishra referred to Section 6 of the Societies
Registration Act, 1860 and Section 69(2) of Partnership Act,
1932 which are concerned to registered Society or Firm but in
our view, the same would have no application to the case in
hand for the reason we have already discussed above with
reference to the decisions in Pamulapati Buchi Naidu College
Committee Nidubroly (supra) and Radhasoami Satsang
Sabha Dayalbag (supra).
1272. Referring to Section 2 of Shariyat Act, 1937 as
amended by Madras Act 18 of 1949 as also the Apex Court's
decision in C.Mohammad Yunus Vs. Syed Unnissa and Ors.
AIR 1961 SC 808, it is contended that the Act was applied to all
cities and provinces but in our view, neither the aforesaid
provisions nor the decision of the Apex Court in C. Mohammad
Yunus (supra) has any relevance with the point in question.
1273. Referring to certain documents, which are on record,
and the translation provided thereof, Sri Mishra has submitted in
his written arguments as under:
A. In the application for registration of waqf made
under section 38 of the United Provinces Muslim Waqfs
Act, XIII of 1936 being exhibit 38 on pages 199 to 205 of
the Volume No.11 of the documents filed in the instant
suit by the Plaintiffs in its column no.3 it has been stated
that there is no waqf but the waqifs are Emperor Babar
and Nawab Sa'-a-Dat Ali Khan. Below column no.16
there is a note which says that the claim of the alleged
Mutwalli's family is that the within mentioned property
said to be granted for maintenance of the alleged Babari
Mosque at somewhere else is not a waqf but a Service
Grant in their favour. The aforesaid application tells the
1424
Emperor Babar and Nawab Sa'-a-Dat Ali Khan as joint
waqifs which is quite impossible because the Emperor
Babar died in 1530 AD while Nawab Sa'a-Dat Ali Khan
ascended on throne in 1732 AD as such the persons who
were not contemporary and there was a gap of 202 years
between the former and later they cannot be joint waqifs
of same of one waqf alleged to be Babri Masjid Waqf.
This fact alone totally falsify the claim of the plaintiffs
that the alleged waqf was created by the Emperor Babar.
The grant in question was also a service grant not a waqf.
The person who made application namely, Syed Kalbe
Hussain had also his vested interest as it appears from the
note of the application that his intention was to file a case
against the persons who were enjoying their property
claiming the same to be a service grant; from being
motivated with such spirit and he made the aforesaid
application for registration making fraudulent dishonest
false and frivolous statements.
B. Be it mentioned herein that the plaintiffs have used
fraud upon this Hon'ble Court by producing wrong
transliteration of the note contained in said application for
registration. Though in its original Urdu text it has been
recorded that the persons recorded in revenue records do
not consider it waqf but in Hindi transliteration thereof the
plaintiffs by deleting the word 'nahi' of vital importance
which finds place in between the words 'waqf' and
'tasleem' have made it meant that those persons says that it
is waqf and nankar mafi. This fact came into light when
the original text was read over in open Court by the
Hon'ble Justice S.U.Khan, J. during my argument.
1425
C. In the list of Sunni Waqfs published in supplement
to the Government Gazette of United Provinces dated 26
th
February, 1944 under Section 5 of U.P. Muslim Waqfs
Act, XIII of 1936 to which, according to the report of the
Commissioner of waqfs, the provisions of the said Act
apply; on page 11 at serial no.26 (being the volume No.12
of the documents filed in the instant suit) it has been
notified that Babri Mosque is located at Qasba Shahnawa
not at Ramkot in Ayodhya. Hindi transliteration of
relevant page of the said gazette notification containing
the name of Badshah Babar on serial No.26 is on page
no.341 to 345 of volume 12 of the documents filed in the
instant suit. Hindi Transliteration of the proforma of the
list as well as the entries against item no.26 of the said
reads as follows:
i- il i

i--n| -i i i ;n ii
- i
zc iiir i -ir-- | -n|
-l- i| -i
iiri iiii i n
From the above Gazette notification dated 26
th
February, 1944 it appears that Badshah Babar had erected
a Mosque in Shahnawa town within the postal jurisdiction
of Darshan Nagar of which Syed Mohammed Zaki was
Mutawalli. The said gazette notification did not say that
there was a mosque in Ramkot Pargana Havelli, Ayodhya
in the district of Faizabad. As such said Babri Mosque
Waqf cannot be construed to be waqf of any other Babri
Mosque located anywhere else.
D. In the said gazette notification dated 26
th
February,
1944 (on page 479 of the volume 12 of the documents
filed in the instant suit) another Babri Mosque along with
1426
the Mausoleum of the Emperor Babur has been mentioned
in some other district perhaps in the district of Kanpur. It
is well known recognized and admitted fact that the
Mausoleum of the Emperor Babur is in Kabul, Afganistan
not in India. This is glaring example of the facts of fraud,
forgery and fabrication.
E. From the above mentioned relevant entries of the list
of the gazette notification dated 26
th
February, 1944 it
becomes clear that the waqf commissioners had not
discharged their duties as it was cost upon them under the
provisions of the United Provinces Muslim Waqfs Act,
1936 and in very casual manner either on hearsay they
have listed several properties as of waqfs or the concern
Waqf Commissioner were active participant in the fraud,
forgery and fabrication.
F. The Waqf Commissioner Faizabad's report dated 8
th
February, 1941 says that it appears that in 935 A.H.
Emperor Babar built Babari or Janam Asthan Mosque at
Ajudhya and appointed one Syed Abdul Baqi as the
Mutwalli and khatib of the Mosque and for its
maintenance an annual grant of Rs.60 was allowed by the
said Emperor which continued till the fall of the Mughal
kingdom. Later on said grant was increased by Nawab Sa-
a-Dat Ali Khan to Rs.302/3/6 but no original papers about
this grant by the king of Oudh are available. Relevant
extract of said report reads as follows:
"It appears that in 935 A.H. Emperor Babar built
this mosque and appointed Syed Abdul Baqi as the
mutwalli and khatib of the Mosque (vide clause 2
statement filed by Syed Mohammad Zaqi to whom a
1427
notice was issued under the Wakf Act.) An annual
grant of Rs.60/- was allowed by the Emperor for
maintenance of the mosque and the family of the
first mutwalli Abdul Baqi. This grant was continued
till of the fall of the Moghal Kingdom at Delhi and
the ascendancy of the Nawabs of Oudh.
According to Cl. 3 of the written statement of
Mohammad Zaki Nawab Sa'adat Ali Khan, King of
Oudh increased the annual grant to Rs.302/3/6. No
original papers about this grant by the king of Oudh
are available."
From the aforesaid extract it is crystal clear that the
Commissioner on the basis of mere statement of Syed
Mohammed Zaki found that the Disputed Janam Asthan
Structure was a mosque built by Emperor Babar which is
in total discard to his duty cast upon him under said Act
XIII of 1936.
G. Commissioner's said report dated 8
th
Feb. 1941 says
that after the mutiny the British Govt. continued the above
grant in cash upto 1864 and in the later year in lieu of cash
some revenue free land in village Bhuraipur and
Sholeypur was granted. The said report further records
that Syed Mohammed Zaki produced a copy of the grant
order of the British Govt. which was made on condition
that Rajab Ali and Mohammad Asghar would render
Police, Military or Political service etc. Thereafter the
commissioner records that the above-mentioned object is
elucidated in Urdu translation as follows:
"After the Mutiny, the British Government, also
continued the above grant in cash upto 1864, and in
1428
the latter year in lieu of the cash grant, the British
Government ordered the grant of some revenue free
land in villages Bhuraipur and Sholeypur. A copy of
this order of the British Government has been filed
by the objector Syed Mohammad Zaki (vide Flag
A). This order says that 'the Chief Commissioner
under the authority of the Governor General in
Council is pleased to maintain the Grant for so long
as the object for which the grant has been made is
kept up on the following conditions'. These
conditions require Rajab Ali and Mohammad
Asghar to whom the sannad was given, to perform
duties of land holder in the matter of Police Military
or political service etc. Thus the original object of
the state grant of Emperor Babar and nawab Sa'adat
Ali Khan is continued in this Sunnad by the British
Government also i.e. maintenance of the mosque.
The Nankar is to be enjoyed by the grantees for so
long as the object of the grant i.e. the mosque is in
existence."
H. In fact, this Urdu elucidation is creation of the said
Waqf Commissioner as it is not in the alleged Sunned
being page 33 of the volume 6 of the documents filed in
the instant suit. Hindi transliteration and meaning of the
said elucidative Urdu text as incorporated in the Waqf
Commissioner's said report reads as follows:
ii i n l -l- l i-n ii |
n| i| i r| r iin, i- -in r (i
in li| n| r rn r)
1429
A handwritten copy of the said sunnad with some
error has been reproduced at page 27 of volume 10 of the
documents filed in the instant suit. In the said alleged
original version of the grant Urdu elucidation did not find
place. From the said alleged original version of the alleged
grant, it becomes crystal clear that the grant, if any, it was
a service grant for rendering police, military and political
services to the British Govt. against the enemies of the
British Govt. Be it mentioned herein that in those days in
the eyes of the Britishers the persons who were fighting
against them for liberation of their motherland i.e. India
they were considered to be mutineers and enemies of the
Britishers. As such it can be inferred that the said service
grant was given for helping the Britishers to defeat and
rout the freedom fighters, not for a good cause of
maintaining any Mosque. Full text of the alleged
SUNNAD from page 33 of Vol. 6 (hand written copy on
page 27 of Vol. 10 that is not accurate) is reproduced as
follows:
"Chief commissioner's
It having been established after due enquiry, that
Rajub ally and Mohamad Usgar received a Cash
Nankar of (Rs.302.3.6) Rupees three hundred to and
three annas and six pie from Mouzah Shanwah Zila
Faizabad from former Government. The Chief
Commissioner, under the authority of the Governor
General in Council is pleased to maintain the grant
for long as the object for which the grant has been
made is kept the following conditions. That they shall
have surrendered all sunnads, title deeds, and other
1430
documents relative to the grant. That they and their
successor shall strictly (illegible) all the duties of
land-holder in matter of police, and an (torn) or
political service that they may be required of them by
the authorities and that they shall never fall under
the just suspicion of favouring in any way designs of
enemies of the British Government. If any one of
these conditions is broken by Rajub ally and
Mohamad Usgar or their successor the grant will be
immediately resumed."
I. From the aforesaid alleged to be original text of the
grant as produced by the plaintiffs it becomes crystal clear
that Urdu interpolation has been done by the said
Commissioner with sole motive to deprive the Hindus
from their sacred shrine of Sri Ramjanamsthan which has
been described as Babri Mosque in the plaint as well as
Janam Asthan Mosque in the said Commissioner's report.
From the words 'Janam Asthan Mosque' itself it becomes
clear that the alleged Mosque was erected over the birth
place of someone, and since time immemorial said place is
being worshipped by the Hindus asserting that it is the
birth place of the Lord of Universe Sri Ram it is needless
to say that according to the said Commissioner, the
alleged Mosque was erected over the janamasthan of Sri
Ramlala.
J. The said Waqf Commissioner after recording the
facts that Syed Mohammed Zaki had submitted before him
that the said British grant was a service grant in favour of
his predecessors for rendering police, military and
political services to the Britishers subject to resumption on
1431
non-fulfillment of the aforesaid conditions thus it was not
a waqf property granted for maintenance of the alleged
mosque; the commissioner without any cogent evidence
rejected his said contention simply stating that he did not
agree to that view because the grant was not originally
granted by the Britishers but it was continuation of
original grant granted by the Muslim rulers as also for the
reasons that after the Ajodhya riot of 1934 Syed
Mohammad Zaki had presented an application to Deputy
Commissioner in which he had described himself as
Mutawalli or trustee of the mosque and of the trust
attached thereto. In fact, prior to coming on this reference,
in the preceding paragraphs of his said report the said
commissioner himself has recorded that no paper of old
grant even of the Nawabs of Oudh was available and
placed before him. It is contrary to the law of evidence to
draw inference on the basis of the statement of a person
whose credibility was found suspicious, doubtful and non-
reliable. As in his report the commissioner records that
said Syed Mohammed Zaki was an opium addict and most
unsuited for the proper performance of the duties expect
of a Mutwalli of an ancient and historical mosque, which
was not kept even in proper repairs for which reason he
recommended to discharge the said Mutwalli. Relevant
extract from said report is reproduced as follows:
"Syed Mohammad Zaki, the objector, who is known
as the Mutwalli of the Babari mosque, and also
called himself as such raises an objection to the land
in Sholeypur and Bhuranpur being regarded as a
waqf, because he says the grant has been made for
1432
his substenance only (in Urdu). In do not agree with
this view of his. The written statement filed by
Mohammad Zaki himself is sufficient to show that
the grant has been continued ever since 935 A.H.
only because he and his ancestors were required to
look after the mosque and keep it in proper
condition out of the income allowed to them and
also to provide for the maintenance of himself and
his ancestors out of a part of the same grant.
Clearly then the grant of land to Mohammad Zaki
must be regarded as a Waqf, the purpose of which is
the maintenance of the religious building known as
the Babari Mosque.
The learned counsel for Mohammad Zaki has also
argued.
1) That the particular grant of land in Sholeypur and
Bhureypur has been made by the British
Government. A Non-Muslim body and hence the
grant cannot be regarded as Muslim Waqf.
2) That the grant is a conditional one, being subject
to resumption on non fulfillment by the grantee of
any of the police Military or duties enjoined in the
Sunnad, and that on account of these conditions the
grant cannot be classed as a Muslim Waqf.
I do not agree with either view. firstly the British
Government only continued a grant which had been
made by the Muslim Government originally and in
these circumstances, I cannot but regard the grant as
a waqf.
3) As for the second point the conditions have been
1433
imposed upon the grantee, and not upon the way in
which the grant to be utilized, which latter purpose
is recognised as maintenance of the mosque. It is
clear that if the conditions are broken the enjoyment
of the grant by the Mutwalli himself for his sustence
is to be withdrawn apparently implying that any
other mutwalli will then be appointed to administer
the grant for the original purpose of maintaining the
mosque. I am strengthened in this view because I
find the mention of the object of the grant i.e.
maintenance of the mosque at the very outset of the
Sunnad and the desirability thereof seems to be clear
from the whole Sunnad.
I also find that after the Ajodhya riot of 1934,
Syed Mohammad Zaki presented an application
(Flag Ex. A) to Deputy Commissioner, in which he
clearly described himself as Mutwalli or trustee of
the mosque and of the trust attached thereto.
I also find that this same Mohammad Zaki
submitted accounts in 1925 in Tahsildar's court in
which he stated that the income from the grant
managed by him was utilized for maintenance of the
mosque, pay of Imam Muezzin and the provisions of
Iftari etc., during Ramzan after deduction of Rs.20/-
per month for sustence of the Mutwalli himself. The
pay of the Mutwalli spends a much greater portions
of the income on his own personal needs.
K. The Wakf Commissioner Faizabad in his said report
dated 8
th
Feb. 1941 says that he examined Abdul Ghaffar,
the then pes Niwaz who deposed that the imam was not
1434
being paid for last 11 years and thereafter the said
commissioner says that the then Syed Mohammud Zaki
was an opium addict and most unsuited to the proper
performance of the duties expected from an Mutwalli of
an ancient and historical mosque, thus he was liable to be
discharged from his duties. Relevant extract from the said
report which is on page nos. 45 to 48 of the volume No. 6
of the documents filed in the instant suit read as follows:
"The present Mutwalli is of course a Shia. There is
no information as to the sect to which Abdul Baqi
himself belonged, but the founder Emperor Babar-
was admittedly a Sunni, the Imam and Muezzin at
the mosque are Sunni and only Sunnis say their
prayer in it. Abdul Ghaffar the present Pesh Niwaj
was examined by me. He swear that the ancestors of
Mohammad Zaki were Sunnis who latter on was
converted to Shia. He further said that he did not
receive his pay during the last 11 years. In 1936 the
Mutwalli executed a pronote promising to pay the
arrear of pay by installment but upto this time
nothing actually was done. I think therefore that this
should be regarded as a Sunni Trust.
I must say in the end that from the reports that
I have heard about the present Mutwalli, he is an
opium addict (vide his statement flag Ez) and most
unsuited to the proper performance of the duties
expected of a Mutwalli of an ancient and historical
mosque, which is not kept even in proper repairs. It
is desirable that, if possible, a committee of
management should be appointed to supervise the
1435
proper maintenance and repairs of the mosque and
discharge of his duties by the Mutwalli."
L. From the second report of the Commissioner of
Waqf Faizabad being report dated 8
th
February, 1941 it
becomes clear that the Imam was not being paid since
1930 and the alleged Mutwalli was an opium addict and
most unsuitable person and in 1934 riots on 27
th
March,
the alleged Mosque was demolished it can be safely
inferred that Sri Ramjanamsthan temple structure was
being used as a mosque because it cannot be imagined that
a person will discharge duty of imam without getting
salary for such a long period as according to Islamic law,
only salary is the prescribed means of livelihood no imam
can survive for want of salary as such in fact neither there
was any mosque nor there was any mutwalli or imam.
M. From exhibit-62 being page nos.367 to 405 of
volume 12 of the documents filed in the instant suit which
is a report of the four historians it becomes crystal clear
that how said report has been prepared having some
design in mind or inadvertently and negligently which
reflects from page 397 of the said volume where the
dimension of the vedi described by Tieffenthaler has been
wrongly reproduced as "a square platform 5 inches above
ground, 5 inches long and 4 inches wide, constructed of
mud and covered with lime. The Hindus call it Bedi, that
to say, the birth place. The reason is that here there was a
house in which Beschan (Bishan = Vishnu) took the form
of Ram". Though correct dimension given by Tiffenthaler
reads "a square chest, raised five inches from the ground,
covered with lime, about five ells in length by not more
1436
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."
This correct translation is given in the book 'Modern
Traveller' volume 3, published by James Duncan in 1828.
It is crystal clear that in the report of said historians the
word 'ells' has been translated as 'inches' in fact, ells
means yards which has been correctly translated in the
translation made available by the Govt. of India to this
Hon'ble Court. Tieffenthelar has not stated that the Bedi
was of mud, it is creation of the mind of the aforesaid
historians, as such said report of the historians is not
reliable for the reasons of being prepared by incompetent
persons or for being biased, motivated.
N. The page No. 155 of volume 6 of the documents
filed in the instant suit purported to be copy of a folio of a
register contains a pedigree wherein it has been written
that the mafi was created for the muezzin and khattib of
masjid Babari of Oudh date and year of the waqf is
unknown to Syed Baqi therefore his son Syed (illegible)
Ali, his son Syed Hussain Ali who was in possession for
about 60 years now his son-in-law Rajab Ali and his
daughter's son Muhammad Asgar are in existence and
were in receipt of cash from village Shahnawa vide receipt
(illegible) till fasali year 1263. In the year 1264 fasali
enquiry about mafi was started but riot took place
(illegible) crop (illegible) year 63 fasali was found
(illegible) original (illegible) of and is document
(illegible) in respect of mafi (illegible) settlement of
village versus (illegible). A copy of the said contents has
1437
also been compiled in the said volume no.6 of the
documents filed in the instant suit on its page nos. 157 to
161.
O. From the said enquiry report it appears that during
the period of 332 years people of five generations
including Syed Baqi held the office of muezzin and
khattib of alleged Babri mosque during the period of 1528
to 1860 which means 66 years was average of each
generations which is quite impossible as according to Life
Insurance Corporation's assessment average span of a
change of generation is 26 years. And this pedigree is
completely false, forged and fabricated one. During this
period 16 generations of the Mughal rulers elapsed
average whereof comes about 20 years. In the matter of
Radha Krishan v. State of Bihar the Hon'ble Supreme
Court has laid down the principle of law to evaluate and
judge authenticity of a pedigree which has been
reproduced in this argument at relevant place.
P. The alleged documents and/or transliteration thereof
being page nos. 53 to 61 of the volume no.6 of the
documents filed in the instant suit tells that the alleged
Babri Mosque was demolished by the rioters and Bairagis
on 27
th
March, 1934. The damaged domes were beyond
repair. The allege list of damages says that apart from
damaging the building, the Hindus either burnt or took
away with them three pieces of mats, six pieces of
matress, one piece of box, two pieces sandal, six pieces of
curtains, five pieces of pitchers, hundred places badhana
mitti, four pieces of small earthen pot, one piece chahar,
water pot (illegible) three pieces Kasauti Patthar Tarikhi, 3
1438
x 1 sq. ft. one piece, ladder two pieces, large iron jar two
pieces. From the said list it is crystal clear that no
engraved stone i.e. inscription was either carried away by
the rioters or destroyed by the rioters. As such the story of
the destruction of inscription is wholly concocted and the
inscription which was prepared by the contractor was done
at the instance of the Britishers to deprive the Hindus from
their religious place and make the said place as bone of
contention between Hindus and Muslims to facilitate their
policy of divide and rule. As it has been written in the East
India Gazetteer 1828 p. 352, 2
nd
column last para as well
as the preface of the Neil B.E. Baillie's Digest of
Moohummudan Law Vol.2 Edn. 1875 Introduction p. xi
and xii.
Q. In Waqf Commissioner's report dated Feb. 8 1941, it
has been recorded that the alleged Babri Mosque was built
by one Abdul Baqi on being ordered to do so by the
Emperor Babur. He records that there is no document to
show that grant was sanctioned to the said Mosque either
by the Mughal Emperors or Nawabs of Oudh, but as in
1864 a sunnud was issued stating that the grant was given
to the grantee for rendering military, police and political
services. It may be presumed that it was granted in
continuance of the grants of Mughal Emperors to Nawabs
of Oudh right from the Emperor Babur. The said
Commissioner in his waqf report has committed forgery
and fabrication by inserting certain words in Urdu
transcript to show that the grant was given for
maintenance of the alleged Babri Mosque. In fact, said
sunnud is on record and entire sunnud is in English
1439
language and nothing is written in the said sunnud in Urdu
transcript as such question of grant for maintenance of
Babri Mosque cannot and does not arise at all. He says
that some return submitted in the office of Tahsildar in
1995 shows that though major expenses was done by the
grantee for his own maintenance, but a portion thereof was
spent on maintaining alleged Babri Mosque. Be it
mentioned herein that if grant would have been spent on
maintaining alleged Babri Mosque its account would have
been submitted to the District Civil court which was made
mandatory under the provisions of The Mussalman Wakf
Act, 1923 under Section 3 of the said Act. Report also
says that the Imam was not paid for last 11 years i.e. since
1930 as also that the Mutwalli is a drug addict and the
alleged Mosque is in not good condition as such Mutwalli
should be removed.
1274. Suffice it to say that Section 87 would be attracted
where a waqf is not registered under the Act. If there was some
irregularity or discrepancy in the procedure observed, whether
that would make a waqf otherwise registered by the Central
Sunni Waqf Board as unregistered, is neither an issue framed
nor there is requisite pleadings by the concerned parties giving
an opportunity to plaintiffs (Suit-4) to place on record the
relevant evidence. So far as the appreciation of the documents,
referred to above in sub paras A to Q, we are clearly of the view
that the same would not negate an otherwise positive assertion
by defendant 4 (Suit-5) which is not disputed at all by the other
side by challenging the said pleading. Moreover no issue on this
aspect has been framed. In our view, the suits in question cannot
be held to be barred by Section 87 of the Act.
1440
1275. There is another aspect. There are specific issues
concerning the very existence of the waqf and creation of a valid
waqf in accordance with Shariyat Law. Where such a basic issue
is involved about the very existence of a waqf, whether in such a
case also Section 87 would have any application or not, we have
our serious doubts but on this aspect in the absence of any
pleadings or arguments on the part of the respective parties
we find no occasion to express a final opinion. We are not
inclined to widen the scope of the suits in question, the canvass
whereof is already enlarged extraordinarily and we have enough
complicated issues to consider and decide having wider
ramifications. In the totality of the circumstances, as also the
discussion as above, we are clearly of the view that the suits in
question cannot be held untriable at this stage by virtue of
Section 87 of 1995 Act. The submission of Sri P.N.Mishra,
learned counsel for defendant 20 in Suit-4 with reference to
Section 87 of 1995 Act is hereby rejected. We, however, make
it clear that the submissions with respect to various documents
in the above mentioned paragraphs F to Q are in fact not
relevant to the above aspect of the matter. We intend to consider
it later on while deliberating on the concerned issues involving
those documents and their effect.
(E) Miscellaneous issues like representative nature of suit,
Trust, Section 91 C.P.C., non joinder of parties, valuation/
insufficient Court fee/under valuation and special costs.
1276. Issue no. 6 (Suit-4) reads as under:
"Whether the present suit is a representative suit,
plaintiffs representing the interest of the Muslims and
defendants representing the interest of the Hindus?"
1277. Issue no. 6 (Suit-4) pertains to the nature of the suit
1441
in a representative capacity in respect to both the parties, i.e.,
plaintiffs and defendants. It is not disputed by learned counsel
for the parties that the Civil Judge passed order dated
08.08.1962 under Order 1 Rule 8 CPC permitting plaintiffs to
represent the interest of Muslims and the defendants to represent
the interest of Hindus. The relevant part of the order says:
"I therefore allow appln 4-C and reject the objections 77-C
& 97-C. The pltffs are permitted to sue representing the
entire Muslim community and the pltffs are also permitted
to sue the defdts no. 1 to 4 on behalf of and for the benefit
of the entire Hindu community."
None has made any submission otherwise. The issue is
answered accordingly in affirmance.
1278. Issue No.22 (Suit-4) relates to special costs in case
suit is dismissed. It reads as under:
"Whether the suit is liable to be dismissed with
special costs?"
Learned counsel for the defendants have fairly stated that
they do not press for any special costs and for they it would be
sufficient if the suits are decided on merits expeditiously.
In the circumstances and in view of the above statement
made on behalf of the learned counsel appearing for the
defendants in Suit-4, we answer Issue no.22 in negative i.e. no
special costs need be awarded.
1279. Issues no. 11(a) and 11(b) (Suit-1) reads as under:
"(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 CPC? If not, its
1442
effect."
1280. These issues are in respect to Section 91 CPC which
reads as under:
"91. Public nuisances and other wrongful acts affecting
the public.--(1) In the case of a public nuisance or other
wrongful act affecting, or likely to affect, the public, a suit
for a declaration and injunction or for such other relief as
may be appropriate in the circumstances of the case, may
be instituted,-
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons,
even though no special damage has been caused to
such persons by reason of such public nuisance or
other wrongful act.]
(2) Nothing in this section shall be deemed to limit or
otherwise affect any right of suit which may exist
independently of its provisions."
1281. The onus to prove the above issue initially lie upon
the defendants but no arguments have been advanced in respect
to the above issue. Besides, we find from the record that Sri
Chaudhary Kedarnath, Advocate, counsel of the plaintiff, Gopal
Singh Visharad, who initially filed Suit-1, made a statement on
15.09.1951 under Order 10 Rule 2 stating that he is filing the
above suit for enforcement of his individual right of worship
and, therefore, has a right to maintain the above suit in his
individual capacity. The relevant part of his statement is as
under:
"Q. In what capacity does the plaintiff seek to exercise the
relief which he seeks in the plaint.
Ans. In my individual capacity.
1443
Q. What is your individual capacity.
Ans. My individual capacity is distinct from public capacity
and in this matter an idol worshipper."
1282. It also appears that an application was filed on
behalf of defendants no. 1 to 5 under Order 1 Rule 8 CPC before
the Civil Judge, Faizabad praying that the suit be treated to be in
a representative capacity but the said application was rejected on
27.10.1951. The order has attained finality as nothing has been
placed before us to show that the matter was taken up before the
higher Court assailing the order dated 27.10.1951. Section 91
CPC does not take away the independent right of a person where
such right partly relates to a public right of others also. It lays
down merely the procedure to be adopted in a representative suit
where a right of suit already exist. It did not confer or extinguish
a new right on its own. In Kadarbhai Mahomedbhai and
another Vs. Haribhari Ranchhodbhai Desai and another, AIR
1974 Gujarat 120 a suit was filed by a person affected by public
nuisance praying for removal of the public nuisance alleging
special damage to him and it was held that such a suit is not
barred either by Section 91 CPC or Order 1 Rule 8 CPC. To the
same effect is the view taken by this Court in Mst. Bhagwanti
Vs. Mst. Jiuti and another, AIR 1975 Allahabad 341. In view
of the above we answer issue no. 11(a) (Suit-1) in negative and
hold that neither Section 91 CPC is applicable to Suit-1 nor it is
bad for want of consent in writing by Advocate General. Issue
No. 11(b) (Suit-1) is answered in affirmance, i.e., the right of
the plaintiff is independent as set up by him in the plaint as also
in view of the statement under Order 10 Rule 2 CPC and has
nothing to do with Section 91 CPC. The question of the
subsequent part of the issue 11(b) need not be decided in view
1444
or our answer in favour of the plaintiff, i.e., in affirmance.
1283. Issue no. 12 (Suit-1) reads as under:
"Is the suit bad for want of steps and notice under
Order 1, Rule 8 CPC? If so, its effect?"
1284. This issue is with reference to Order 1 Rule 8 CPC
which reads as under:
"8. One person may sue or defend on behalf of all
in same interest.--(1) Where there are numerous persons
having the same interest in one suit,-
(a) one or more of such persons may, with the
permission of the Court, sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons
so interested;
(b) the Court may direct that one or more of such
persons may sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so
interested.
(2) The Court shall, in every case where a permission or
direction is given under sub-rule (1), at the plaintiffs
expense, give notice of the institution of the suit to all
persons so interested either by personal service, or, where,
by reason of the number of persons or any other cause, such
service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit
is instituted or defended, under sub-rule (1), may apply to
the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned
under sub-rule (1), and no such suit shall be withdrawn
under sub-rule (3), of rule 1 of Order XXIII, and no
1445
agreement, compromise or satisfaction shall be recorded in
any such suit under rule 3 of that Order, unless the Court
has given, at the plaintiffs expense, notice to all persons so
interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit
does not proceed with due diligence in the suit or defence,
the Court may substitute in his place any other person
having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding
on all persons on whose behalf, or for whose benefit, the suit
is instituted, or defended, as the case may be.
Explanation.-For the purpose of determining whether
the persons who sue or are sued, or defend, have the same
interest in one suit, it is not necessary to establish that such
persons have the same cause of action as the person on
whose behalf, or for whose benefit, they sue or are sued, or
defend the suit, as the case may be."
1285. As we have already discussed above the application
filed on behalf of defendants no. 1 to 5 under Order 1 Rule 8
CPC was rejected by Civil Judge, Faizabad by order dated
27.10.1951. The plaintiff had also made statement under Order
10 Rule 2 CPC that the right of worship, he is claiming by
means of Suit-1, is his individual and personal right hence Order
1 Rule 8 CPC has no application. That being so, the question of
taking steps and notice under Order 1 Rule 8 CPC does not
arise. Issue no. 12 (Suit-1) is accordingly answered in
negative, i.e., in favour of the plaintiff (Suit-1).
1286. Issue no. 15 (Suit-1) pertains to non-joinder of
defendants and says:
"Is the suit bad for non-joinder of defendants?"
1446
1287. It is not pointed out by any of the defendants as to
who has not been impleaded as defendant though a necessary or
proper party in the suit. No arguments have been advanced on
this aspect and in the absence thereof we answer issue no. 15
(Suit-1) in negative, i.e., in favour of the plaintiffs (Suit-1).
1288. Issue no. 16 (Suit-1) reads as under:
"Are the defendants or any of them entitled to special
costs under Section 35-A C.P.C."
1289. It relates to special costs. Section 35A CPC says:
"35A. Compensatory costs in respect of false or
vexatious claims or defenses.--(1) If any suit or other
proceedings including an execution proceedings but
excluding an appeal or a revision any party objects to the
claim of defence on the ground that the claim or defence or
any part of it is, as against the objector, false or vexatious
to the knowledge of the party by whom it has been put
forward, and if thereafter, as against the objector, such
claim or defence is disallowed, abandoned or withdrawn in
whole or in part, the Court, if it so thinks fit] may, after
recording its reasons for holding such claim or defence to
be false or vexatious, make an order for the payment the
object or by the party by whom such claim or defence has
been put forward, of cost by way of compensation.
(2) No Court shall make any such order for the
payment of an amount exceeding three thousand rupees or
exceeding the limits of it pecuniary jurisdiction, whichever
amount is less:
Provided that where the pecuniary limits of the
jurisdiction of any Court exercising the jurisdiction of a
Court of Small Causes under the Provincial Small Cause
1447
Courts Act, 1887 (9 of 1887) or under a corresponding law
in force in any part of India to which the said Act does not
extend and not being a Court constituted under such Act or
law, are less than two hundred and fifty rupees, the High
Court may empower such Court to award as costs under this
section any amount not exceeding two hundred and fifty
rupees and not exceeding those limits by more than one
hundred rupees:
Provided, further, that the High Court may limit the
amount or class of Courts is empowered to award as costs
under this Section.
(3) No person against whom an order has been made
under this section shall, by reason thereof, be exempted
from any criminal liability in respect of any claim or defence
made by him.
(4) The amount of any compensation awarded under
this section in respect of a false or vexatious claim or
defence shall be taken into account in any subsequent suit
for damages or compensation in respect of such claim or
defence."
1290. Learned counsels for the defendants have at the
outset stated that they do not press any cost whatsoever and for
them the biggest compensation would be the decision of the
matter at the earliest and, therefore, none has pressed the above
issue. In the result issue 16 (Suit-1) is answered in negative,
i.e., in favour of the plaintiff (Suit-1).
1291. Issues no. 11, 12 and 15 (Suit-3) read as under:
"Is the suit bad for non-joinder of necessary
defendants?"
"Are defendants entitled to special costs u/s 35
1448
CPC?"
"Is the suit property valued and court fee paid
sufficient?"
1292. None has pressed the above issues inasmuch as
neither any submissions have been advanced as to who is the
necessary party not impleaded in the suit rendering it bad for
non-joinder nor the learned counsels for the defendants have
pressed for special cost and on the contrary very fairly have said
that the decision of the suit at the earliest is itself the biggest
cost to them. No arguments have been advanced with respect to
the valuation and the Court fees in the matter. We, therefore,
answer issues no. 11 and 12 (Suit-3) in negative, i.e., in favour
of the plaintiffs (Suit-3). Issue no. 15 (Suit-3) is answered in
affirmance, i.e., in favour of the plaintiff (Suit-3).
1293. Issue no. 20 (Suit-5) reads as under:
"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?"
1294. Defendant no. 3 represented by Sri R.L. Verma,
Advocate has not placed anything before this Court to show as
to how the alleged trust defendant no. 21 is void. Besides,
defendant no. 21 is not seeking any relief as such before us. The
question as to whether the alleged trust is void or not would
have no material bearing on the matter to the relief sought in
Suit-5 which has been filed on behalf of two deities through
next friend. We, therefore, find no reason to answer the
aforesaid issue in the present case. Issue no. 20 (Suit-5),
therefore, remain unanswered since it is unnecessary for the
dispute in the present case to adjudicate on the said issue. The
learned counsel for defendant no. 3 (Suit-5) also could not make
1449
any submission persuading us to take a different view.
(F) Issues relating to the Person and period- who and when
constructed the disputed building:
1295. Mainly there are three issues under this category
which requires adjudication on the question whether the
building in dispute was constructed in 1528 AD and whether the
construction was made by Babar or under his orders by any of
his agent including Mir Baki.
1296. To be more precise, issues no. 6 (Suit-1), 5 (Suit-3)
and 1(a) (Suit-4) fall in this category.
1297. Issue No.6 (Suit-1) reads as under:
Is the property in suit a mosque constructed by
Shahanshah Babar commonly known as Babri Mosque, in
1528 A.D.?
1298. Defendants no.1 to 5 (Suit-1) in para 9 of their
written statement said:
i s. r l l ii i - ; ii li r r
iriir lr i iir | ni-| i -l- -i -i i| -l-
r| li ir iir - i n ri| lr -ni i i i-
i i | - i -iri- -| i| rn-i-
rzs ; o - ni-| ii i ni-| n-i- - -i l
i- li| l- n-i- - -i i r ;in r|
Para 9. That the property regarding which the plaintiff
has filed the suit, is the mosque built by Babar, emperor of
India, which is called Babri Masjid. It was built by the
aforesaid emperor, after his conquest of India, in the year
1528 through his Governor and confederate (- i -i ri- )
Mir Baqi during his stay at Ayodhya and after building the
same, he created a universal Waqf in favour of Muslims in
general, and all the Muslims have the right of worship over
1450
there. (E.T.C.)
1299. In the replication filed by the plaintiff, he denied the
existence of Babri Masjid in para 9 and said:
i| -l- ri ;i r |
"Its existence as Babri Mosque is denied" (E.T.C.)
1300. The defendant no.10 (Suit-1) in para 2 and 10 of the
written statement have said:
"2. .... and the same was constructed during the regime
of Emperor Babar....."
"10. That the property in suit is an old mosque
constructed around the year 1528 A.D. during the regime
of Emperor Babar under the supervision of Mir Baqi and
the same has always been used as a mosque and it was
never used as a temple or as a place of worship for any
other community except muslims."
1301. Issue No.5 (Suit-3) reads as under:
Is the property in suit a mosque made by Emperor Babar
known as Babari Masjid?
1302. In Suit-3, defendants no. 6 to 8 in written statement
dated 28
th
March, 1960 in para 15 have said:
iii r.. r l l ii i - i ii li r r
iriir lr i iiir ni-| i --i| -i - i|
-l r li iriir - | -i -iri-
-|i| rn-i- rzs ; o - ni-| ii i - -ii
l i- li l- n-i- - -i i r ;in r |
Para 15. That the property regarding which the plaintiff
has filed a claim, is a mosque built by Babur, Emperor of
India, and is known as Babri Masjid. The mosque was built
by the afore-named Emperor through his Secretary and
Commander, Mir Baqi in 1528 and was given in public
waqf to Muslims in which Muslims in general have a right
1451
of worship. (E.T.C.)
1303. The plaintiffs (Suit-3), in replication, have denied
para 15 of the written statement and said:
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 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."
1304. Issue No.1(a) (Suit-4) reads as under:
"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?"
1305. Plaintiffs (Suit-4) in para 1 and 2 of the plaint have
said:
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
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
1452
Ajodhiya, which are shown in the sketch map attached
herewith. ..The mosque and the graveyard are in
Mohalla Kot Rama Chander also known as Rama Kot
Town, Ayodhya. The Khasra number of mosque and the
graveyard in suit are shown in the Schedule attached
which is part of the plaint.
1306. Defendants no.1 and 2 (Suit-4) while denying paras
1 and 2 of the plaint, in written statement dated 12
th
March,
1962 have in para 2 pleaded:
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 built as
dictated by the said Babar.
1307. Defendant no.2 (Suit-4) in his written statement
dated 25
th
January, 1963 while denying paras 1 and 2 (Suit-4),
has further pleaded in para 2 of his written statement:
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 grave yard or Mosque alleged to
the built (as dictated) by the said Babar.
1308. Defendants no. 3 and 4 (Suit-4), in their written
statement dated 22/24 August, 1962 have pleaded in paras 1 and
2 as under:
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 Masjid in Ajodhya Nor
was any mosque built by Emperor Baber in Ajodhya more
than 460 years ago as alleged- Nor did Babar made any
conquest or occupation of any territory in India at the time
alleged in the plaint- The story of the mosque as narrated
1453
in plaint para 1 is a pure fiction.
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 the alleged battle between Emperor Babar and any
previous ruler of Ajodhya, whose name the plaintiffs are
unable to mention in the plaint is 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. . . . The real facts are that the
said Khasra numbers pertain to the Temple of Janam
Bhumi and other land appurtenant thereto.
1309. In the additional written statement dated 28/29
November, 1963, the defendants no.3 and 4 (Suit-4) in para 38
said:
"Emperor Babar never built a mosque as alleged by
the plaintiffs and...."
1310. Defendant No.13/1 (Suit-4) Dharam Das in his
written statement dated 24
th
December, 1989 in para 1 said:
"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
Babar's hords, who demolished the ancient Hindu temple
of the time of Maharaja Vikramaditya of Sri Rama Janma
Bhumi, and tried to raise a mosque-like structure in its
place with its materials."
1311. Doubting the very factum whether the disputed
1454
building was constructed by Babar during his regime the
defendant no.20 (Suit-4) in his written statement dated 5
th
November, 1989 in paras 32, 33, 34, 35 and 36 has said:
"32. ...There appears to be no description of any so called
Baburi Masjid allged 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 Janmsthan was in Ramkot and marked the birthplace
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
1455
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 build in 1528 AD or in 935 Hizri, or it was
built by Emperor Babur or his Governor Mir Baqui, as
stated therein.
34. That in the U.P. District Gazetteers 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 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 (Awadh).
While reproducing the inscription inside the mosque, and
1456
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 notes, 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 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, 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
1457
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
Gazetteers 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.............
1312. In para 41, 46, 49 and 50, defendant no.20 though
has given some other reasons to show that the building in
dispute was not constructed in 1528 AD by Babar but they are
more in the nature of characteristics of mosque etc. and
therefore, we propose to refer while considering those issues.
1313. Sri Zafaryyab Jilani submitted that it has never been
doubted by any authoritative Historian and others that the
building in dispute was constructed in 1528 AD under the
command of Babar by one of his commander Mir Baki. He
admits that the said findings are based on the inscriptions fixed
on the disputed building, which came to be noticed for the first
time by Dr. Buchanan in the earlier part of 19
th
century and has
consistently been acknowledged and affirmed thereafter by
several authorities like Robort Montgomry Martin, P. Karnegi,
Alexander Cunningham, W.C.Benett, A.S.Beveridge as well as
the ASI. He contends that for the first time this novel argument
has been advanced by defendant no. 20 raising doubt over
1458
whether the building in dispute was constructed by Babar or not
though nothing has been placed on record to prove the same.
1314. Per contra, challenging the very basic submission of
the plaintiffs (Suit-4) about construction of the disputed building
by Babar in 1528 AD based on the inscriptions installed thereat,
Sri Misra very ably argued that the basic premise itself is
unsubstantiated, baseless and false. He said that it is an admitted
position that Babar was a Sunni Muslim governed by Hanafi
school of law as mentioned by A.S. Beveridge in her work titled
as Babur-Nama (hereinafter referred to as the Babur-Nama
by Beveridge) translated in English from original Turki text,
first published in 1921 (reprinted in 2006 by Low Price
Publications, Delhi). On page 15, faith of Babur is described in
the following manner:
He was a true believer (Hanafi mazhablik) and pure
in the Faith, not neglecting the Five Prayers and, his life
through, making up his omissions. He read the Qur'an very
frequently and was a disciple of his Highness Khwaja
'Ubaidu'l-lah (Ahrari) who honoured him by visits and
even called him son.
1315. Sri Misra points out that in Babur-Nama by
Beveridge the daily description of Babar by two days in Hijra
934 has not been given though for the entire earlier part a de
die-diem description is given. However, in Hijra 935, narration
of events for about 5 months and more is missing. Babar when
invaded India entered from the northern front and defeated
Sultan Ibrahim Lodi, Emperor of Delhi in the battle of Panipat
in April, 1526 AD. He became king/Emperor of the entire area
of which Sultan Ibrahim Lodi was exercising his authority as
Emperor of Delhi. There was no change of reign in the matter of
1459
religion inasmuch as Ibrahim Lodi was also a Muslim and Babar
defeated him, therefore, the Muslim rule continued. There was
only a change of the Ruler. So far as Oudh is concerned, it was
ruled directly by Delhi Emperor, i.e., Ibrahim Lodi and with his
defeat the said area immediately fell within the authority of
Babar. In Babur-Nama by Beveridge the arrangement of
Oudh area, has been narrated at page 527 under the head
Action against the rebels of the East as under:
Sl. Ibrahim had appointed several amirs under
Mustafa Farmuli and Firuz Khan Sarang-khani, to act
against the rebel amirs of the East (Purab). Mustafa had
fought them and thoroughly drubbed them, giving them
more than one good beating. He dying before Ibrahim's
defeat, his younger brother Shaikh Bayazid-Ibrahim being
occupied with a momentous matter-had led and watched
over his elder brother's men. He now came to serve me,
together with Firuz Khan, Mahmud Khan Nuhani and Qazi
Jia. I shewed them greater kindness and favour than was
their claim; giving to Firuz Khan I krur, 46 laks and 5000
tankas from Junpur, to Shaikh Bayazid I krur, 48 laks and
50,000 tankas from Aud (Oude), to Mahmud Khan 90 laks
and 35,000 tankas from Ghazipur, and to Qazi Jia 20
laks.
1316. Sri Mishra says that Shaikh Bayazid, was an
appointee of Babar but soon after appointment he (Bayazid)
revolted and declared himself independent. About the
appointment of Bayazid, on page 544, Babur-Nama by
Beveridge, it says:
Humayun, in accordance with my arrangements,
left Shah Mir Husain and Sl. Junaid with a body of effective
1460
braves in Juna-pur, posted Qazi Jia with them, and placed
Shaikh Bayazid (Farmuli) in Aude (Oude).
1317. When Bayazid revolted, to defeat him and some
other rebel commanders, the Babar while proceeded towards
Bihar moved via Ayodhya, Jaunpur etc. On 28
th
March, 1528 he
reached near Ayodhya. However there is nothing in Babur-
Nama to show that he ever entered the city. When Babar came
near Ayodhya, the name of his commander was Chin Timur.
There is no mention of any person as Mir Baqi in the entire
Babur-Nama by Beveridge, who ever entered Ayodhya as a
commander of Babers army or otherwise. Bayazid fled away
from Ayodhya hearing arrival of Babar and his army. Babers
commanders chased him from one place to another. Bayazid
was ultimately killed by Humayun. There is no mention of a
battle between Babar or his army and the then ruler of Ayodhya
in 1528 AD. There was no occasion of burying muslims who
were killed in the alleged battle in the graves, claimed to exist
near the disputed site.
1318. Babur-Nama by Beveridge shows that Babar was
not fond of destroying temples and instead he visited temples
having idols at Gwalior and appreciated the Artistry thereof. It is
only at one place where he found naked idols being extremely
indecent which he ordered to destroy but not otherwise. Sri
Mishra says that the very basis of the pleadings of Muslim
parties that there was a battle between Babar and the then ruler
of Ayodhya in 1528 AD is false and unsubstantiated.
1319. Referring to the inscriptions which are the basis of
identifying the period of construction of disputed building by
Babar i.e. 1528 AD, he said that the alleged inscriptions are
1461
nothing but a subsequent forgery. They were not installed in
1528 AD as claimed. He submits that the first reference of the
inscription is found in Gazetteer of Territories under the
Government of East India Company and of the Native States
on the Continent of India by Edward Thornton, first
published in 1858 AD (reproduced in 1993 by Low Price
Publications, Delhi) and at page 739 it says that according to
native tradition the temples were demolished by Aurangzabe,
who build a mosque on the part of the site. The falsehood of the
tradition is however, proved by an inscription on the wall of
the mosque, attributing the work to the conqueror Babar, from
whom Aurangzabe was fifth in descent. He says that the said
inscription has not been quoted in the said gazetteer. However,
the Archaeological Survey of India in its book titled as The
Sharqi Architecture of Jaunpur by A. Fuhrer, first published
in 1889, reprinted in 1994 has reproduced the inscriptions said
to be found on the disputed building at Ayodhya and whatever is
mentioned therein has much difference to the text of the
inscriptions quoted by Beveridge in her book i.e. Babur-
Nama. This difference fortify the fact that they were
subsequently implanted. Some words are different which show
that the said building was not constructed at the instance of
Babar in 1528 AD.
1320. Fuhrer in Chapter X of the book The Sharqi
Architecture of Jaunpur has given details of inscriptions
found at the disputed building at Ayodhya. He points out that
Beveridge claimed that texts of the inscriptions on Babar's
Mosque in Ayodhya were received by her through her husband's
inquiry made from the Deputy Commissioner of Faizabad. She
has given details of the said inscriptions in Appendices 'U' at
1462
page lxxvii in 'Babur-Nama by Beveridge' (supra). The footnote,
item two, says that a few changes in the turm of expressions
have been made for clearness sake. Again with respect to the
date of building she has tried to read it as 935 and in the
footnote she says that presumably the order for building the
mosque was given during Babur's stay in Aud (Ajodhya) in 934
A.H. though Babur-Nama itself shows that Babar reached near
Ayodhya at the end of 934 A.H. and only two days of Hizra
934s description is missing.
1321. Sri Misra then referred to the third version of
inscriptions published by ASI in Epigraphia Indica Arabic
and Persian Supplement (in continuation of Epigraphia Indo-
Moslemica) 1964-1965 (reprinted in 1987). The chapter under
the heading Inscriptions of Emperor Babar is said to have
been written by Late Maulavi M. Ashraf Husain. The
inscriptions dated A.H. 935 from Ayodhya are at page 58, 59,
60, 61 and 62. The opening part of the Chapter make certain
comments about writer in the following words:
A rough draft of this article by the author, who was
my predecessor, was found among sundry papers in my
office. At the time of his retirement in 1953, he had left a
note saying that it might be published after revision by his
successor. Consequently, the same is published here after
incorporation of fresh material and references and also,
extensive revision and editing. The readings have been
also checked, corrected and supplemented with the help of
my colleague, Mr. S.A. Rahim, Epigraphical Assistant,-
Editor.
1322. On page 58 the author refers to the reading of
inscriptions by A. Fuhrer and says that he (Fuhrer) has
1463
incorrectly read it. In the last paragraph it says that the mosque
contains a number of inscriptions. On the eastern facade is a
chhajja below which appears a Quranic text and above an
inscription in Persian verse. On the central mihrab are carved
religious texts such as the Kalima (first Creed), etc. There was
another inscription in Persian verse built up into right hand side
wall of the pulpit. Of these, the last two mentioned epigraphs
have disappeared. They were reportedly destroyed in the
communal vandalism in 1934 AD but the writer of the chapter
Sri Ashraf Husain managed to secure an inked rubbing of one of
the them from Sayyid Badru'l-Hasan of Faizabad. He further
says that the present inscription restored by the muslim
community is not only in inlaid Nasta'liq characters, but is
also slightly different from the original, owning perhaps to the
incompetence of the restorers in deciphering it properly. The
author further declare the translation and reading of inscription
by Fuhrer and Beveridge both incomplete, inaccurate and
different from the text. Sri Hussain has based his entire
conclusions from the estampage claimed to have been received
from Saiyyid Badru's Hasan of Faizabad whose credentials have
not been given. In the bottom note it has said that the tablet was
found in 1906-07 AD by Maulavi M. Shuhaib of the office of
the Archaeological Surveyor, Northern Circle, Agra (Annual
Progress Report of the Office of the Archaeological Surveyor,
Northern Circle, Agra, for 1906-07, Appendix-D. The author
had deciphered the three inscriptions on pages 59, 60, 61 and
62.
1323. Sri Mishra submits that the differences in
inscriptions appear for the reason that the same were not
installed in 1528 AD for the simple reason that no such
1464
construction at all took place at that time. He refers to the record
of Tieffenthaler and submits that Tieffenthaler himself was a
fine scholar with an unusual talent for languages. Besides his
native tongue (Austrian) he understood Latin, Italian, Spanish,
French, Hindustani, Arabic, Persian and Sanskrit. He argued
with vehemence that had such inscriptions been available when
Tieffenthaler visited Ayodhya after arriving in India in 1740
AD, he himself could have read it and would not have said in
his work that an existing temple was demolished by Aurangzabe
to construct three domed structure thereat (also mention that
some says that the demolition and construction was made by
Babar). Had the inscriptions been there, he would have clearly
written that the said work was of Babar and not by Aurangzabe.
1324. Sri Mishra says that the actual demolition and
construction, as the case may be, took place later on and was not
done by Babar. He says that Mir Baqi is not a name but 'Baqi'
means 'Bakshi', i.e., commander of an army of 100 men and
'Mir' is a title used to be given to civilian muslims at that time.
Besides, there is no mention of any one named Mir Baqi who
stayed at Ayodhya and undertook the above job. He submits that
forgery of inscriptions by replacing and travelling from one
place to another is not unknown. In this regard he referred to the
inscriptions of Rajputon Ki Masjid. He also points out that
Fuhrer mentions of only two inscriptions while in
Epigraphia Indica 1964-65 there is mention of three/four
inscriptions. According to him the inscription might have been
installed between 1776 to 1807 though the building in dispute
might have been raised earlier but neither by Babar nor during
his time nor by anyone at his instance.
1325. The other learned counsels appearing on behalf of
1465
Hindu parties adhered to their stand that a Hindu temple was
demolished in 1528 AD under the command of Babar and
thereafter building in dispute was constructed. However, the
learned counsels submitted that their stand is not taken to be in
refuting or challenging the stand taken by Sri P.N.Mishra,
learned counsel appearing on behalf of defendant no.20 (Suit-4)
and the same be examined by this Court on the basis of its own
merits, in the light of the arguments advanced by him as also
contradicted by the learned counsels appearing on behalf of
Muslim parties and they (Hindu parties) be not treated to have
joined this issue with the Muslim parties. They however submit
that their basic premise continue that is demolition of temple at
the birthplace of Lord Rama and construction of disputed
building.
1326. The question as to whether the building in dispute
was constructed in 1528 AD at the command of Babar or by
Babar himself is a very important and pivotal issue, which may
have its reflection on several other issues in all these connected
suits. We proceed to examine this aspect of the matter very
carefully.
1327. The root of the entire controversy is the disputed
building which is said to have been constructed by Emperor
Babar through his Commander/ Governor/Confederator, Mir
Baqi. In the pleadings of muslim parties, though there is some
difference in the language, but in an undisputed manner it has
been pleaded that the building in dispute got constructed in 1528
AD by Emperor Babar after his conquest of India through his
Commander/Governor/Confederator, Mir Baqi. This is what is
the stand also taken by plaintiffs (Suit-5) and some other Hindu
Parties.
1466
1328. Though already referred, but in a concised
recapitulation, we may tell hereat that in para 1 of the plaint
(Suit-4) it is averred that in Ayodhya there exist 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
Ajodhya. It is also said in para 2 that on the land adjoining the
said mosque, on all the four sides, there existed graveyard of
Muslims who lost lives in battle between Emperor Babar and
the previous ruler of Ajodhya. Suit having been filed in 1961,
433 years took it back to 1528 AD.
1329. In Suit-1, defendants No.1 to 5 in para 2 of their
written statement dated 21
st
February, 1950, have said that the
disputed building is a mosque constructed by Emperor Babar. In
para 9, (additional pleas), it is averred that the disputed building
is Babri mosque constructed by Emperor Babar of India, after
conquest of India, during his stay at Ayodhya through his
Minister/Commander Mir Baqi. The building in dispute was
constructed in 1528 AD. Similar averments are made by
defendant no.10 i.e. Sunni Central Waqf Board (Suit-1) in paras
2 and 10 of their written statement.
1330. In Suit-3, defendants No.6 to 8 in para 15 of their
written statement, have said that the disputed building is a Babri
Mosque constructed by Emperor of India through his
Minister/Commander Mir Baqi in 1528 A.D.
1331. In Suit-5, defendant No.4 Sunni Central Waqf Board
in para 13 of written statement dated 26/29 August, 1989, has
said that the property in dispute is an old mosque known as
Babri Mosque constructed during the regime of Emperor Babar.
This has been reiterated in para 24. However, in para 24-B
1467
defendant No.4 states that the land in question undoubtedly
belong to the State when the mosque in question was
constructed on behalf of the State. He further says that Emperor
Babar built the Babri Mosque on a vacant land lay in his State
territory and did not belong to any one . It could very well be
used by his officers for the purpose of mosque especially when
the Emperor himself consented and gave approval for
construction of the said mosque.
1332. The defendant No.5 (Suit-5) in para 40 of written
statement dated 14/21
st
August, 1989, has averred that according
to the inscription in the mosque, the same was constructed by
Mir Baqi, one of the Commander of Babar in 1528. The
existence of mosque in 1528 AD has been reiterated in para 67.
The written statement of defendant No.5 has been adopted by
defendant No.6 vide his application dated 21/22 August, 1989.
1333. Defendant No.24 (Suit-5)in para 12 has referred to
the period of construction of the disputed building as 1528 AD.
However, in para 15 there is slight change in the stand to the
effect that Emperor Babar never came to Ayodhya and the Babri
Mosque was built by Mir Baqi and not Babar. The period of
construction as 1528 has been reiterated in para 22.
1334. Defendant No.25 (Suit-5) though in general
supported the claim of other Muslim parties but in the written
statement dated 16/18 September, 1989 it has not disclosed any
particular date of construction of the building in dispute. The
pleading therefore is that the building in dispute was constructed
in 1528 AD by Babar or with his consent by Mir Baqi, a senior
officer of Emperor Babar, but the basis on which the said date is
mentioned is not given in the pleadings.
1335. Except the defendant No.5 (Suit-5) who in written
1468
statement has given the basis of such averment i.e. the
inscription installed on the building in dispute, no further details
of such inscription has been given either by him or anyone else.
We however find that the only foundation is the inscription on
the disputed building to claim the period of construction as
would appear hereinafter.
1336. On behalf of the plaintiffs (Suit-4), 32 witnesses
have been examined in all which include Expert Historians (as
they claimed) namely Suresh Chandra Mishra, PW 13; Sushil
Srivastava, PW 15; Prof. Suvira Jaiswal, PW 18; and Prof.
Shirin Musvi, PW-20. Besides, a large number of witnesses
examined on facts have deposed mainly about continuous
offering of Namaz in the disputed building till December, 1949,
possession of Muslims on the disputed building but some of
them have also said about date of construction of the disputed
building being 1528 AD based on their knowledge derived from
various sources but basically derived from the inscriptions said
to be existed in the disputed building, inside and outside, and
some on the basis of History books without referring any name.
Some others who claimed Expert Archaeologists have also said
same thing on this aspect.
1337. It would thus be appropriate to see what has been
said by these witnesses about the date/period of construction of
the disputed building as also the basis of such
information/opinion.
1338. P.W.13 Sri Suresh Chandra Mishra in his cross
examination has said:
i -i l i li ii| ( r)
Babur was my favourite subject. (E.T.C.)
- i i i ri n i| r i-i
rzs ii | r| . . . liln i i l-i i rzs
1469
- r i ii| ; in i l i| ini r l rzs - r l
- l-i i r i ii, l - n i r| i ri| l i i
l l i - - ;i l i ni r | ( cs)
As per my study, Babur had passed through Oudh.
This incident occurred in and around 1528 . . . The
disputed structure was constructed in 1528. There is also a
mention as to which time in 1528 this construction was
raised but I do not remember that at present. It is
mentioned in the appendix to the document. (E.T.C.)
l - - -i ni ii, ni - ; l i i i |
; l i i | -r- i -ni i i | l r |
- i | i l r lnln i r i l| i r ;l
; - ni ri r | r -r- i ni n lri i |i -
;i l - r| li ii| ( /)
At the time when I visited the site, I considered
only these records, viz., inscriptions to be important. But
they were in Arabic language. As that is an additional
and credible information, I am telling it now. I did not
make mention of these things in the symbols and objects
earlier stated to be important. (E.T.C.)
r li i | - i i - | iiii r| ini| i
r| r l - i n n - i ni r | .o/.ss i ; in
- -i i r i ii| - - r i liii ii l ri
i lii i ii, r i| - lii r i ii l i - - n
r ni ii| - i i ii i -| r l r li i |
- lii r i ii| i-n - r lii i r| , li i ii| - i
lri ii i l r i| - lii r i ii, nn ii| r -
-n - n~n| ii ri n| r | i l - r| ni
i | i ni r i | | - l- i| r| ini|
( /z)
These records were in Arabic and I do not know
1470
Arabic language. It is not that I am a habitual liar. I on
14.07.98 gave my statement in this court. In the statement I
had caused it to be recorded that 'the inscription which was
there, was written in Persian language but I had been in
the know of that from earlier'. My today's statement is
correct that the record was written in the Arabic language.
Actually it was a record, not an inscription. My earlier
statement to the effect that it was written in Persian
language, was incorrect. It may be due to mistake in
understanding it, because I know neither the Persian
language nor the Arabic language. I do not know Latin
either. (E.T.C.)
- ii - r|r| i ri
;l i ni - l| i i r r| ii| -
;l | l| in r| ni|| - i ; i -i i|
r| li| - -n ii ni ii| - l l- | |
lni ni ii| . . . r| ;l r, i - n lii;
n; -n i- - // /s ii | n| r| - -i
;l i l-i ; -n - l n ;l ii
li i l ; li r ni l r r| -l- r| r
in sss i sso | r, l - lnli - r| ni
i+ ni|( /s)
In course of my investigation, when I for the first
time saw inscriptions there, I did not call anybody to read
them out to me. I copied the inscription on paper. I did not
take any photograph either. I had gone there with a book. I
had gone there only with the book written by Mrs.
Beveridge. . . . . These are those inscriptions that are
shown on Roman pages from 77 to 79 of the book shown to
me yesterday. On the site I tallied those inscriptions with
the inscriptions given in this book, and then I came to an
1471
inference that it was that very mosque. This incident
pertains to 1989 or 1990 but I am not in a position to tell
the exact dates. (E.T.C.)
ii l - i ii i-i ; l ir
i ii| rii l - ni ii i ir i - i
i-i i li| - i ii i-i l- - | -n i|
iil- i|, ii| i l ir -ii si
ni ii, ri l r| i|| ( /sso)
In order to carry out investigation, I had gone
inside the premises empty-handed and after keeping all my
belongings out of the premises, and after coming out I took
all the belongings. I had left all my belongings, including
my book also, with a friend at a place outside the premises
where the police was checking. (E.T.C.)
i i l ir i| r ; | -n - |
n; li ii | i| i ll i - ii l - ii i
n li ii ii ir i li ii`
-n - ir i -l-i li ii| i i
r -n ni ii|
r ii l i - iil- i| l i r
-n - l n li ii i | i | i ll ii
-i - ln li i i i n li ii
ii i l-i li i ;| nr n li ii i
i | i| i ll i -i - ln
li i ir -n - l n li ii i l-i
li| ( so)
Question:- After coming outside, did you tally the
style and script of the records given in your book kept
outside the premises with the inscriptions at Waqua
Bhawan in the premises?
Answer:- After coming outside I tallied the records
1472
and before going inside I had understood them.
This exercise included two processes, which were
that before going inside I had recorded the style and script
of the records in my mind and on going inside I tallied
them with the inscriptions in the building and that I
registered the style and script of the inside inscriptions in
my mind and on coming out I tallied them with records
given in the book. (E.T.C.)
o l ii |n i| i - ri i ni r|
ri ni i nn`
o ii|ni - |n i| i ii rii -|i ni
r|
o i li ni ii i r ii irni r l
i i |n i| i liin -in r i r|`
o r l i--iii i | ni| -n| i ni -
l- ni r ni r l i - n ; n - i n r |
( )
Question:- If you are called an expert in epigraphy,
will it be correct or incorrect to say such?
Answer:- With humility I accept my being conversant
with epigraphy.
Question:- You were queried and I want to know
whether you consider yourself to be a specialist in
epigraphy or not ?
Answer:- If it is not taken to be self-praise, I can
humbly say that I can be placed under this
category.(E.T.C.)
ii i - - i li r , r nr
i| r i iii i| r| ( /o)
The study which I have made with regard to
Ayodhya, is no only a deep study but a research
1473
also.(E.T.C.)
- n i r| i ri l ii- - ,ii i
ii - ii - l| -l- l-i i i l ii r i
r| | i i -i - l -| i | i r l i |
i | ( scs/)
I fail to remember whether or not the Baburnama
makes mention of the construction of any mosque in
Ayodhya by him or during his reign. The Baburnama
makes mention of Mir Baqi, not of 'Baqi'. (E.T.C.)
- n ; - --i r| i ri l ii-i -
i|nii| i i|ini i i| l ii r i r| |
n i i ; l ii r ni r iln -|i| l
r| ri ni| ( s/)
At present I fail to remember whether
'Baqitashkandi' and 'Baqisadwal' find mention or not in
Baburnama. If there is any such reference, it cannot be for
his army-chief Mir Baqi. (E.T.C.)
r ri nn r l li iiii i li i ss - r
n ni i nii ni ri | ( ss)
It is wrong to say that an inscription in Persian
language was engraved after the riots which allegedly
erupted in 1934. (E.T.C.)
i i | ni i | i i i i i i
l i i i | - n r in -- r| r l r i|nii | r| ln
ii i r| l -|i| i- ii ini r | -iii ni r| r
l i|nii | i -|i| r| ln z i- ri | - ; in
i lln r| r ni l -iii r| r l r i i
i- r| ln i |
; l i i - ;| n i l i ; l i
i l i n r ; r i - i r | i-n - r
r i r i ilin rini r| ; - ; i
1474
ii r, i ii r l- i| -l- i; i
li ii i l r | ;- s lii ii i l r| - ;|
in - i li ii l ri lii i ii| i -n
- - i r i i l - i i r i |
i ; ;- i - r i l ri l | i |
; i i l ni r| ri ri |
( zs)
Babur appointed Baquitashkandi administrator
of Oadh. I am not clear whether or not this Baquitashkandi
was the same person that has come to be known as Mir
Baqi. The possibility is that Baquitashkandi and Mir Baqi
are two different names of one and the same person. I
cannot say this definitely. It is just a possibility that these
two names were of the same person.
I have read a journal 'Epigraphica Indica' in
regard to inscription. Actually, it is a journal published
every year. One of its editions makes mention of an
inscription and contains an article which makes mention of
inscriptions with 14 lines inside the Babri mosque. It makes
mention of three pillar inscription. Yesterday I gave a
statement in this very court that there was just one pillar
inscription there. Actually, that statement of mine was
due to slip of tongue and under the impression that there
should not be any mention of any new fake
inscription.(E.T.C.)
- liln i i l|ii li ni -i z
l i i i i i | l i i i ni i r| ,i ni
i i i i -i n l - l -- ni i i |
+ ni r i ii| l|ii r - n r ii| r| i| l ri
s lii i r | - n z i r| ni ii| - n ssos i
r ni ii l ri s lii i r| r i i l ri
1475
s lii i r - n l|ii i -ii r| l-i i i|
in -| n~| ri n| l s lii i r i r| - |
lnii | n l- ri n|| lii ii i l|ii r r|
- n r ii| ri | i| l i s lii r i r|
( z)
When I observed the disputed building, I saw two
pillar inscriptions on the site. One pillar inscription was
at the exterior door and the other one was perhaps at fall
fiat member. It was above it. Prior to my observation, I did
not have the knowledge that three pillar inscriptions were
there. I had knowledge only of two ones. In and around
1990-1991 I came to know that three inscriptions are there.
After knowing that three pillar inscriptions are there I did
not have the opportunity for observation. As a matter of
fact, after reading I got satisfied that three inscriptions are
there and that alone satisfied my curiosity. Even before
observation of the pillar inscription, I had got the
information what was written on them. (E.T.C.)
ri n - -nni r , - n ; in - nir| l ;
li ii ni r l l il- li r ii l ri l|
-l i ni -l- i; n; i| i r| - r i li
r( zz)
As far as I understand, I have been summoned in
this court to depose whether or not a mosque was
constructed by demolishing a temple on the disputed site. I
have given this statement, (E.T.C.)
- s - -i i liln i | lnrilni i
i l| .... -i l i i i i , i i|
-l- - ii, i ii| .... l i i - i -n i |
-l - - n r ; l r | ( z/c)
I had made some attempts to know the history of the
1476
disputed structure. . I had seen a record at that place,
which was within the Babri mosque. . By record, I mean
the inscription at the Babri mosque. (E.T.C.)
- n li r| in|| ( zs/)
"I do not know Persian." (E.T.C.)
1339. The witness has claimed himself to be an Expert
Historian and on page 111 has also claimed that he may be
placed in the category of Expert in Epigraphy. His statement
on page 54 shows that Babar was his favourite subject. He is
M.A. in Ancient History (Culture and Archeology) and Ph.D.
He claims that having undergone a deeper inquiry and study on
the dispute he concluded that the mosque was constructed by
Mir Baqi and for this purpose there was no destruction of any
kind at the disputed site. He referred to Skand Puran,
Baburnama, his visit to Ayodhya before 1992 and the report
(Exhibit D25, Suit-5) (Paper No. 110C1/96) submitted to the
Government of India by Prof. R.S. Sharma, Prof. D.N. Jha and
Prof. Suraj Bhan alongwith Prof. Athar Ali being his study
material. However, he admits that he did not find any reference
of construction of the disputed building/Babari mosque in
Baburnama and it also contains no reference of Mir Baqi. On
the one hand he accepts of being expert in Epigraphy (page 111)
but simultaneously he admits that neither he knows Arabic nor
Persian nor Latin, therefore, he had no occasion to understand
the language in which the alleged inscription was written. In his
statement dated 14.07.1998 he claims that the inscriptions were
written in Persian but later on page 72 he retracted and said that
the inscriptions were written in Arabic and his earlier statement
was wrong for the reason that neither he understand Persian nor
Arabic. He attempted this Court to believe in his knowledge of
1477
History being an Expert Historian in Ancient History and that he
has made a deep study on the subject which is like a research
and therefrom he has come to know that the building in dispute
was constructed in 1528 AD by Mir Baqi but his cross
examination shows that for arriving at the said conclusion,
without any further inquiry into the matter, what was written
about the inscriptions in Epigraphica Indica (1964-65) as well as
Baburnama by Beveridge and on that basis he believed and
concluded as above. The slipshod and casual manner in which
he made inquiry about inscriptions is further interesting. On
page 79 he says that he carried inside the disputed building, the
book Baburnama by Beveridge and therefrom compared the
script of the inscriptions with the text quoted in the said book
and since the matter relate to 1989/1990 he is not able to tell the
correct date but thereafter on page 79/80 he admits that for
security reasons his entire belongings were made to be left
outside the premises and he went inside the disputed building
empty handed. The book was also left outside where police
checking was going. On page 80 when his statement about
comparison of the text of the inscription with the book was
further examined he says that he kept the text after reading the
book in his mind and compared it with the inscription. This
wonderful memory of the witness has to be seen in the light of
the fact that the witness admits that he knows neither Persian
nor Arabic. On page 79 he also admits that he also do not know
Urdu language.
1340. The correctness of his statement can further be
scrutinised in the light of what has been written by Maulvi F.
Ashraf Hussain in his paper published in Epigraphica Indica
(1965) where he admits that the original two inscriptions were
1478
damaged in 1934 and replaced by new one. Therefore, in
1989/90 what PW 13 saw, were the inscriptions replaced in
1934 and not that text which was available to Mrs. Beveridge,
she has quoted in her book published in 1921. The difference
between the text of the inscriptions quoted by Beveridge and
that which was available to Maulvi Ashraf Hussain which he
published in Epigraphica Indica, we would be demonstrating a
bit later. Suffice it to mention at this stage that the inscriptions
which were available in 1989/1990, having been replaced in
1934 contains lot of difference. The alleged deep study/research
of PW 13 thus become seriously suspicious and make this
witness wholly unreliable.
1341. Further, he claims to have read Baburnama by
Beveridge but on page 197 could not tell whether the names
Baqi Shaghawal and Baqi Tashkandi are mentioned therein or
not. His lack of knowledge in this matter is writ large from the
fact that Mrs. Beveridge has suggested that it is probably Baqi
Tashkandi whose name was mentioned in the inscription as Mir
Baqi but PW 13 on page 197 says that even if the names of Baqi
Tashkandi and Baqi Shaghawal have been mentioned in
Baburnama that cannot be connected with the army chief Mir
Baqi. He also says that there is reference of Mir Baqi in
Baburnama but during the course of arguments the learned
counsel for the plaintiff (Suit-4) admits that the words Mir
Baqi as such are not mentioned in the entire Baburnama
translated by Mrs. Beveridge or others but what he submits that
most of the Historians are of the view that Baqi Tashkandi
was Mir Baqi since he was given the command and made
incharge of Awadh by Babar.
1342. In fact PW 15 another expert historian witness on
1479
page 85 has clearly said that Mir Baqi's name does not find
mention in Baburnama. He also says that there is nothing in
Baburnama which may co-relate Baqi Tashkandi with Mir
Baqi.
1343. From the entire statement of PW 13 this much is
evident that in his opinion for the period of construction of the
building, i.e., 1528 AD, and the person who got it constructed,
i.e., Mir Baqi, the ultimate reliance is on the inscriptions
(whether two or three, that would be discussed later on) and no
other authentic material. The opinion of PW 13 in this regard,
however, is based on the information which he received from
the book Baburnama by Mrs. A.S. Beveridge and Epigraphica
Indica (1965) from which he was satisfied and concluded his
opinion. Beside that, he had no other reliable information to
form the said opinion.
1344. At this stage we may also mention that Dr. S.C.
Misra (PW 13) did his Ph.D. under Prof. D.N. Jha (page 49) and
claims to be closely acquainted with him. On page 44 he has
also admitted that except Baburnama by A.S. Beveridge he has
read no other translation at all. On page 31 he says that he has
intellectually analysed and contemplated whether God is a
reality or not and has come to the conclusion that there is no
existence of God, since, he had no occasion to come face to face
with God. On page 53, he says that he has also studied the
History of India written by Romila Thaper and has also
consulted her in the course of so called deep study on the
dispute in question and believed whatever she has written is
correct. On the one hand he claims to be a man of scientific
temperament and in order to believe anything he looks into the
matter and several things, analyse them and only then come to a
1480
concrete finding (page 49) but on page 56 he says that on the
basis of general conception among majority of people and also
because of acceptance on the part of scholars he accepted that
Islam emerged through revelation. From reading of the books
enumerated he came to a conclusion that scholars opined that
Islam appeared through revelation. On page 57 he admits that
neither he know what revelation means nor has read the
process of such revelation and, therefore, he is wholly ignorance
of the term "revelation" and its meaning. At several places he
sought to correct his statement made earlier which throw light
on his knowledge of the matter, his confidence as also his
memory. One of such aspect is about the constitution of ASI
which he stated to be in 1934 on 14.07.1998 but later, on page
73/74, he admits the incorrectness in the earlier statement and
rectify the same by stating that it was constituted in 18
th
century.
In his research he admits of having not read any gazetteer or
Government gazette (page 74-75). On page 88 he further
contradicted to some extent his statement about his scientific
temperament and says that in respect to Allahoupanishad he
has made statement only on secondary basis. He also admits the
falsity of statement that in 1968 he went to the disputed site
alongwith his parents but did not go inside although the parents
went (page 33) and on page 93 in this regard he has said:
r ri i| nn r l - - r nn i| | ri
l - -inilni ; i n ni - ir i i r
ni ii| r -| r l cc i cs - i| ; liln
l ir| - ,i nii ii i i ; i| ln
r| i ni ii| ( ss)
It is wrong to say that in the said testimony I have
wrongly stated that when my parents went inside this
building, I was left standing outside the building. However,
1481
it is true that even in 1966 and 1969 the main outdoor of
this disputed premises was locked and none could go
inside. (E.T.C.)
1345. On page 167 PW 13 said that there is nothing like
Sanatan Dharm and on the same page he said that the word
Hindu is a mixed term which comprises several type of people
including those who had their origin somewhere outside and
who have assimilated in it. Nobody was original Hindu. It is
subsequent concept. It commenced from circa 4
th
or 3
rd
BC.
1346. Learned counsel for the defendants (Suit-4) pointed
out to us that PW 13 was not an expert of Medieval History
and this is evident from his admission on page 152/153 where
he says that he is teaching students Ancient History and his
Ph.D. was limited to the study of Kautilya's Arthshastra. The
relevant part of his statement on page 152/153 is:
l i - - ni r, ri iin| i|
;lnri - - r| i ln r i | i n
r| r-i i - ; liin - i i ; ln r| r|
r-i i - i| iin| ;lnri i i ; n liin r|
r, r ;lnri li - r| l--ln r i ; nr ;lnri i
i- lr liin r , l r i li- - - | o iii
i r | ( rz)
In the college where I am a teacher, I am the only
person who is working as a reader of Ancient history. No
person is posted on the psot of professor in this department
in our college. There is no separate department of ancient
Indian history in our college. It is comprised in the history
subject itself and in this way there is a combined
department of history, which is headed by Sri K.Bhagya
Rao. (E.T.C.)
- | iii i| i- - i l-~ i ii- n |l-n r,
1482
l- li i| i| -ilrn r | r -| r l r
li i| i| i l-~ i ii- n |l-n r|
- |oo lnili i i ini r i -oo i;
lnili i i i| ini r | - i | ;l nri i ni r |
i| ;lnri - r- in iin| i - , ; il- i-
nln - i l- - /rosoo .|. n i
;lnri in r| ( rs)
My research i.e. doctorate is limited to the study of
Kautilya's 'Arthashastra and it also comprises
documentary study. It is true that this documentary study is
limited to the study of Kautilya's Arthashastra.
I teach the students of B.A. and also those of M.A.
final. I teach ancient history only. In ancient history, we
teach history, in Indian context, from the time we get the
earliest traces of human beings on this earth up to 750-800
AD. (E.T.C.)
1347. The defendants sought to highlight the fact that PW
13 was a paid witness and made certain questions about the
manner in which he comes from Delhi. On page 185 he said:
- l~| i+ ; - - - nir| l ; i
ii r in| i i| ri; ri r| ii l i|
i l~| z i ri; ri ni r | i i| - ri;
ri i ii irni r | r -| r l ; - in -
- i r n ii r i r i ; l i rii
i; ; (l ri) - n z -n r| ( sr)
I have been to Lucknow from Delhi several times in
order to depose in this litigation. I never came by air but
on my way back from Lucknow to Delhi I went by air two
times. Even today I want to go back by aeroplane. It is true
that at present my hand bag is kept with the court and it
has many tags (then stated) one tag each of Indian Airlines
1483
and Sahara Airlines totalling two tags. (E.T.C.)
1348. However, later on he retracted and made a different
statement on page 201 as under:
- i| i| nir| l ri; ri r| ii -
i| nir| l ini r ni i ni i i ni r i
in l-| r ; iili i i n ni r | - ii ni r
i i i | l i i ni r | - o|o,
l l - ri r ,ii r| ii ni r| r -| r l -
ls| i in i nii ii l - z i ri; ri i|
i l~| ni r | ( zo)
I never came by air to give my testimony. Whenever
I come for deposition I bear expenses either on my own or
from the amount received from the court. I travel by rail
and get my seat reserved while making to and fro journey. I
travel in second class A.C., to which I am entitled. It is true
that I told the court last time that I had gone back to Delhi
by aeroplane two times. (E.T.C.)
1349. His statement fails to inspire confidence and lack
independent, fair and impartial opinion. He admits to have done
Ph.D. under Prof. D.N. Jha who according to him was one of the
signatory to the document A Historians Report to the Nation
alongwith three others and on page 142 he admits that all these
four persons he considered to be the top historians of the
country and, therefore, place them above the published research
of Hans Baker of Ayodhya. Prof. D.N.Jha in fact did not sign
the letter. The other three took a partisan stand as we shall
demonstrate later. He do not agree with Baker's conclusions
though reason for such disagreement could not be given by him.
1350. PW 15, Sushil Srivastava is a Historian working on
the post of Professor in Maharaja Saya Ji Rao University
Baroda. During the course of examination, he rejoined
1484
Allahabad University. He deposed to have seen inscriptions and
has further said that the same appears to have been written in
Persian. The script is in Arbo-Persian. He is also author of a
book on the subject titled as The Disputed Mosque A
Historical Enquiry which was published in 1991.
1351. With regard to the date of construction of the
disputed building, inscriptions and his book, PW 15 in his cross
examination has said:
- liln -i -i - i -n li| r, i li
- - nl- i i li| i|ni i r, i
iii ii r | ( s)
While writing the book, which I have written about
disputed site, I made main gazetteers and articles of other
foreign travellers, the basis of my book. (E.T.C.)
ri - i | n i r i | i |
l i i i i i i r i | ii| r i | i
l i i | r i liln i r n + li i| r
i -i i i ii| - r r| r ni l -i ir |
n r i l r i i i|n i r i | - liln -i
-i - i - -i - ili li ; -i - r| i| -
- - - ; -i - i li i li ii| -
|oi n| l-| l- ii ,ii llin li - ri | i||
- - r| li - - - r li i ii ii| |o
i n| ,ii ii - - i- - ii ii| ; li - -
i i - l -l- il i l ii r | liln -i
i l - li - - i r | liln -i i - li -
- |o i n| lii r l -l- i i| i| r -l -
rzszs - i | i | | r i| lii r l r -l- ri
i| n| r ri r i- - i - l ri ri ni| r |o
n| i i- sc/ - ilin r i ii| ; ii ri - i
i; li r| ii| - o o ri l-| l- ii i
1485
i; i - sor ii r| ii| ( s)
There I had seen inside and outside ancient and
official inscriptions, two were outside, one was inside.
These inscriptions were written on the wall. These
inscriptions were written on much height of the disputed
structure. I cannot say whether these words were engraved
projecting outside or engraved inside the stone. In this
connection, I have not seen the records filed in old cases
regarding disputed site. I had studied the records kept in
Collectorate in this connection. There I had read the report
of P.Karnegi, Dy. Commissioner, Faizabad. I had seen this
record in the Record Room of Collectorate. I have seen the
sketch of Ayodhya in one of the Parts. In this report there is
reference of temple, mosque, Kund etc. I have read in that
report reference of the disputed site. In that report,
regarding the disputed site, P. Karnegi has written that the
mosque was got constructed by Babar in 1528-29. It is
also written that at the place, where this mosque has been
got constructed, there might have been Ram Janam temple
earlier. This note of P. Karnegi was published in 1867.
Except this I have not seen any other record there. I have
not seen any note of 1905 by J.W. Hose, Deputy
Commissioner, Faizabad. (E.T.C.)
i ii n| i| r| ii ii| ( )
Babar never came to Ayodhya city. (E.T.C.)
liln -i - i lii i - i ni r r l
i i l i i - r| ini | - n r r| -i - l
lii ii i i i -n lii r i ii| - | lni
- r l li r l liln -i i lii i i i
i -n lii r| liln i + i i lii ii
i i -n lii ii r i r | -n
1486
- i i i r - | i | l ni - l i l i r |
- ssroo i i n rzszs o| o l i i r i i i |
ir i i|n i lii i r| i| ir ii lii i
i| -i ii i -i - i| -i ii i|n ii -i i
-i - si -i ii| r ir ii -i i - l lii i
ii r oz l- -i ri ni l ri l so rini| ; -i
- | i i; | l- r| rin|| ii lii i ir
i -i - ii i| si -i ii| ( r)
I do not know as to which year or period the stone
inscriptions of the disputed site, which I have referred,
pertained. I do not know as to which year or Samvat is
written on those inscriptions. I have referred in my book as
to what year or Samvat is written on the stone inscriptions
of the disputed site. The year or Samvat written in
inscriptions over disputed structure was mentioned by
Bevrez Saheb in his book. I have written that matter in
my book. Therein 935 A.H., i.e., 1528-29 A.D. was
written. Stone inscriptions of outside and inside were not
similar. The outer stone inscription was too much lengthy
and its stone slab was very lengthy and inside stone or
stone slab was small. This outer stone slab containing the
inscription was 10-12 ft in length (Then said) might be 8-10
ft. The inside stone inscription was smaller than half of the
outer stone slab. (E.T.C.)
ii-i - liln i -i - i; l r| r | -l-
-i - i| i ; l r| r| ii-i - z -l-i i i| -i
i| -l- i ii i|n i| -l- i l li ni
r|( /)
"There is no reference of disputed structure in Babarnama.
Nor any reference is there with regard to mosque. In
Babarnama, there is reference of two mosques, i.e., of
1487
Sambhal Mosque and perhaps, Panipat Mosque." (E.T.C.)
- l i i i i i ni r i l i
ni r | - | i | ni r i l i
ni r | - n i i| - n i; si ni r| r| ( sz)
Neither I can read nor write Persian. I can also
not read Arabic Language nor can write it. I have no
sound knowledge of Sanskrit also." (E.T.C.)
r -| r l l li iiii i - ni r i li
ni r i li ii n ;-l - - -
r n - || ( ss)
It is correct that my father-in-law helped me a lot in
reading and1366 writing, i.e., in interpreting the Persian
language, which neither I can read nor write, " (E.T.C.)
- | | iiii i i| iiii l,i r| ( sc)
My father-in-law is a scholar of Arabic and Persian
languages." (E.T.C.)
- liln -i i i i lii i i i r i|
iiii - i nii i| ll - i | r r| r l - n i| iiii i
ll i - - n - ir ni in r i| l ri
l r ri r| r l r ni - n liln -i i n ii
i lii ii -i - | in r i ii| ( s/)
The script or inscriptions which I had seen at the
disputed site, were in Persian language and script. It is
correct that I acquired knowledge about Persian language
and script from my father in law. Further said, it is correct
to say that I acquired knowledge from my father in law,
about script and inscriptions found at the disputed
site."(E.T.C.)
r ri ni r l - lni - ;lnrii rin r i|
i ni | -i| |ln i i - in r li li
i i li lni - lii| - | lni i lin
1488
- ;i i- lr--il ;i| ii| r ri ni r l -
; -i ;lnril i i -i lni li| ri| ( ss)
It might be that despite being a historian, keeping in
view the scholarly feeling of the people, I relied on them
and noted down in my book. At the time of authoring my
book , I titled it as Historical Inquiry. It may be that
treating it as a turning point of historical investigation, I
have written the book." (E.T.C.)
r r| r l - | r -r l i i i
l ,i i l i l n -i i i i i i
l i ni r r l ~ | nr r| r| r |( ss)
It is true that my father in law felt that the
translation of articles on disputed site made by Bevarage
is not wholly correct." (E.T.C.)
sss - -i iii i i r| ii i ri ii| ( ss)
In 1988 my research was not complete and was under
process." (E.T.C.)
- sss i i i r| - |
i i i i n n i - n i- | ln | l- n| i - n
| i| i li ni| l - - | r i ii i |oo|o
| ln | l-| i| - ;i ri i l l i
l n | r| | -l i | r i| r| r l -
o o - - | - i- lr i i | ( ss)
It was only after 1988 publication that my luck
brightened up, I acquired degree of Doctorate and I was
appointed Reader also. When I became Reader and was
conferred Ph.D. Degree, Sri Wahiuddin Malick was the
Vice Chancellor of Allahabad University. It is also
correct that, at that time the Chief Minister of U.P. was
Mulayam Singh Yadav." (E.T.C.)
- r r| r ni l n| l i i i i -
1489
l i i i i | - i i i i | - i ,
i l - n ; i i i i i i i i ni r| i i | ( r)
I can not say whether out of three inscriptions
one was in Persian and two were in Arabic, as I had no
knowledge of these two language. (E.T.C.)
- | -n - ; n|i lii ii i n | i
i lii r| n | i l - |
l li ii i r| ii ii| ( r)
In my book I have written about the three
inscriptions after getting the same translated in English.
For English transcription I have requested my father-in-
law and got it done from him. (E.T.C.)
n r | nii l in r| ( r)
But he know Arabic and Persian. (E.T.C.)
- | -n - r lii r l --i; i |n i|
i lii ii r, r r i rini r l r -l- i
,ii i; n; i| i r|| r r| r l ; i n in i
iii r r l - i-i r-i i| ir r -r
n i| r| in - | lni - li| r| ( r)
I have written in my book that the style of
Calligraphy on inscriptions creates doubt whether this
mosque was constructed by Babar or not. It is correct that
the basis of the aforesaid fact is that my father-in-law
realized so. I have written this fact in my book. (E.T.C.)
- i ; i | n i | r| | r | | n i |
i l i i | - r| i r | ( r)
I have not studied Science of Calligraphy. I have
also not studied the subject of Epigraphy. (E.T.C.)
r ri r| ri ni r l l i l n -l -
ro . | . - i ; n; ri | ( rz)
It may be right to say that disputed mosque was
1490
built in 1501 AD. (E.T.C.)
r ri ni r l l i l n -l - i i
r l | i i i ri | i rzc rso
. | . n i i n s i r| l i n | i | |
( rz)
It is possible that the disputed mosque might have
been built by someone else prior to Babar. Between 1526
to 1530 AD, Babar conquered over only certain parts of
India. (E.T.C.)
liln -i l n| lii ii i l - li r,
- i r n + i, i | zozz l- + i | n|i
lii i | ii, i - r l- | | ii ii| l
i| l- - ri n| r | l i| l- - - li| in| r | r
ri nn ri ni l i| i ; i| ll r| r| r r| ri ni
r l i| iiii l ll - li| in| r| | i l
ll - s ~i - i n r , i| r| r ; -i - i
i| - | -n - lii r, - | i iii lii
r| | i i i ri n r | r i - llin -
ii il in r, i - , li| r ; -n in| r|( rz)
Out of the three disputed inscriptions on disputed
site which I have mentioned, two were at great height,
approximately at the height of 20-22 ft. Third inscription
was downward side which I viewed from a distance of 4-5
ft. Persian is also a script. Arabic and Persian is written in
script. It will be wrong to say that Persian is not any script.
It may be that Persian language is written in Arabic script.
There is difference of few alphabets in Arabic and Persian
script, remaining are the same. Whatever I have written in
this regard in my book is based on secondary source. There
are two sorts of secondary source. In the first category
comes written newspapers etc. and in the second category
1491
comes written books. (E.T.C.)
n liln i i c| ini| ii r|o ini| i
ii ri ni r | li i n - - | i - r - i
r l l i l n i i i i i i r i ri |
liin - - r r ni r l r liln i i i
~ni i i| ii ri ni r | ( r/)
The aforesaid disputed structure might be a
construction of fifteenth century besides sixteenth century.
As an expert, in my opinion, it is probable that the
disputed structure was not constructed by Babar. As an
expert I can say that, it may be that the disputed structure
was constructed by the Sultan of Juanpur. (E.T.C.)
- | lni - ii l lii| ; -n
- i l i l~- l -l- r| ; -n i li
r - i| si| li ii| si | i n - ;
n| r i l l i l n i i i ni n n i i i
,i i i i ni i i i i | i i i ,i i i i ni
i i | - ; n| r| r i l r i ii ,ii i| s
iin ii ni| i i i i -- ( i | l i i )
i -sl i i | | n -i - - i i i -- i| i
-sli r | ( cz)
I have written my book for discovery of truth. This
book contains a chapter entitled Did Babar Build the
Masjid. Before authoring this book, I had made a
thorough probe. After the investigation, I came to the
conclusion that the disputed structure had been built
either by Tughlaq rulers or Shirky rulers. I did not reach
the conclusion that some part of it was constructed by
Nawabs of Avadh. The emblem of Nawabs of Avadh was
two fish. Presently also, the emblem of the State
Government is two fish." (E.T.C.)
1492
- | -n - / /r l i l
- l- - i - i li r| - i i r lii
l li r l i ii r| ni ii| ( cs)
At pages 74 and75 of my book I have recorded my
opinion with respect to scripts of Arabic and Persian
letters. I have given this opinion in order to demonstrate
that Babar never visited Ayodhya. (E.T.C.)
- | -n - iss - i| -l-
|n i| --i; | i n li r i iii
r li lii l ; in n |l r - ri ni r
l r -l- i i; | - n i - i i ; i
| n i | i ni i i | r| r | ( cr)
At page 89 of my book I have recorded my opinion
regarding the style of calligraphy of Babari Mosque, and
on that basis came to this conclusion that on this point, a
grievous doubt emerges if Babar had built this mosque. I
have not the least knowledge of art or science of
calligraphy. (E.T.C.)
- | -n i-c - sz, ss s -
-ni i li li r l i - - n ii| r | - n
i| -ni i | nr r| i r| ;- - , ,
l i ll- | -n - | r| i| -n
ii|ii | | r | - s -n | r i - r| | r |
( cs)
In column 6 of pages 92,93 and 94 of my book, I
have given description of those books about which I know.
I have not read wholly all the aforesaid books. Out of
these, I have read the books of Lenpool, Laden, Baverige
and Rushbook William. I have studied a little the remaining
books. There are certain books therein, which I have not
studied. (E.T.C.)
1493
r r| r l - l l ni i i r| i
i i | l - | l ni - -i - - l i r |
( cs)
It is true that, in the foot note of my book, I have
mentioned those books too which I have not
read.(E.T.C.)
- l n| ni i i l l - li r -
li ii - r| ii r nl- iii lii
r| - r nin r| li l liln -i l -i - l-in r|
- n l - - i i l l i l n -i - r |
( /)
I had not seen in revenue records, the three
villages, which I have mentioned in the appendix and have
written only on the basis of Gazetteer. I did not find out as
to in which village the disputed site lay. I saw in Gazetteer
that the disputed site is in Nuzul. (E.T.C.)
r ri nn r l n l- -il ii i i i| -
r| ini r| r i;-| i -ii ini r r ri r| r l
nl- i - -i n l - i r li ri n r | ( /s)
It is wrong to say that the gazetteer does not come
within the category of original research work. It is
considered a primary source. It is true to say that the basic
source of gazetteer is revenue records maintained in the
District. (E.T.C.)
- ; i n ni r| l i l l i i i i
n r i i - ni l n r | ( //)
I did not pay attention on this fact, as to whether
the inscriptions were installed from the beginning or
installed subsequently. (E.T.C.)
- i| -l- lr--il-| i - i; -ilin
-n r| i iil n liili lr--il
1494
i - n l- r| i r| - l| iin| i n | i li|
- -i i | -ili -n i| -l- r| ||
( ///s)
I have not read any authoritative book about the
historicity of Babari Masjid, read historical accounts of
British Administrative Officers and gazetteers only. I have
not read any authentic book of any Indian or Turkish or
Foreign Muslim on the Babari Mosque only. (E.T.C.)
- n i; i |n i| | ii| r| r | li i
l i| r| in| r| ( /s)
I have no knowledge of Science of Epigraphy. I do
not know even Persian and Arabic. (E.T.C.)
liln -i i lii i - i lnn| ln
r| i| i - n r nin r| r i l lii i l i -
li n| i - - n l| nii l r ssr oo li r
r l ri l i o iii- - n r in ni| l r lii i
ssr oo li r r i - r r| -i li r in -
l ilri | lni i| || i n i i i i
l i i i | n i | i i n n| i l i i
i i | i - | i r| -i l i | ( /s/s)
There was no figure indicated on the inscriptions
which I saw on the dispute site. On seeing, it could not be
known as to in which year the inscriptions were written.
Later on, someone told me that these are written in 935
AH, further said, Prof. Radhey Shyam had told me this fact
that these inscription were written in 935 A.H. and I took
the same to be true. I also read this fact in the book of
Beverige. The aforesaid two writers had drawn the said
conclusion on deciphering the epigraphy of the
inscriptions and I considered the same to be
true.(E.T.C.)
1495
lii i -|i| i i- lii ii -| i |
i l i i - - r| i ni r | ( sr)
On the inscription, the name of Mir Baqi was
written but reference of the said Mir Baqi does not find
place in Babarnama. (E.T.C.)
i ii- - s i| r| l-ni l lii i - l
i| i l ii r r i| nii | ri ri | ( sr)
In Babarnama nothing of the sort is found to
indicate that Baqi mentioned in the inscriptions would have
been Banki Tashkandi. (E.T.C.)
- lln ; li r| r i l r
liln ii l |l i r n r - n i r
i r | ( oc)
I could not reach with certainty to the conclusion
as to which period the disputed structure pertains but it
relates prior to the Mughal period. (E.T.C.)
|n i| i ni - n r| r | l-- l- i ni - n r|
r| ii i| - - i ; lii ni in r| li| i
i i; ni - in r| li| i; i i| - i - i;
lii ni in r| li| n | | i| i i| i ; ni -
in r| li| ( oc)
I have no knowledge of Epigraphy. I have no
knowledge of Numismatic. I did not acquire any
specialization in archaeology. I did not acquire knowledge
about survey of land. I did not acquire any specialized
knowledge in Science of Architecture. I did not acquire any
knowledge of Turkish, Arabic and Persian too. (E.T.C.)
liln i i l-i i ii l i - r| r i r l~
- i - r i r| ( os)
This disputed structure has not been constructed in
modern period, instead, it has been constructed in
1496
Medieval period. (E.T.C.)
- | i li - | li - nii | li - i ss |
r r| iiiln r| ( s)
My opinion is based only on Cunningham's Report
and Fuhrer's report of 1891. (E.T.C.)
l i l n i l -i i - i - i ;
-n i r| r | ( )
There is no book available with respect to
construction of disputed structure. (E.T.C.)
- | -n i i- l- - -i- lr--i l ;i|
r| - | -n - ii i i n|i r | ; -n ii -
i| ;lnri i - -i i; iii r| r i ilin
r i r | ( s)
The title of my book is 'Disputed Mosque, a Historic
Enquiry'. My book is the outcome of my research. Except
this book, there is no any other research of mine nor
published, about Medieval history. (E.T.C.)
| -n li l - n|i -ni i| i i-i
i; | i i-i ii -n i| || l
li l-llin r n l- (scs), l i n l- (so)
sor r- ,ii ;-|l nl-, ;l | -n, lln -
-lin nii s -n i| r | ; ii n|i l
i ii r, ni|i i i ii r , li- | li- , |
li - -ii i| i r | ( s)
For the purpose of writing my book, Except these
three books, i.e. Babarnama, Aine Akbari and Akbarnama,
I read other books also, particulars whereof are:
Gazetteer(1868), Gazetteer of Nevil (1901 to 1905),
Imperial Gazetteer by Hunter, Irvin's book and some other
books related to pilgrimage. Except this, I have also seen
Tirth Vivechan Khand, Tarikh Fara Bux, I have seen the
1497
Report of Cunningham, Report of Furher as also the
Newspapers. (E.T.C.)
rzc r i i i ;lnri - ni r| i r i
nl- - li ni r | nl- sor - si ii i ii i
- ri -i n ii| ( s/)
I have read History of Ayodhya of the period prior
to 1526 only to the extent which has been given in the
gazetteer. What was published in Gazetteer 1905, was the
first source about Ayodhya. (E.T.C.)
l ini i - nn ii i l-llin r . i
-l - r| i i i l i i i i | r| i i |
i i i i -ii l-llin r| ii-i -
i ii i i l r| r | ii-i - r l r| r
l i ii- -l- i i r - li| ( s/ss)
The facts which I found wrong are: 1. Babar did
not get the mosque constructed since he never visited
Ayodhya.
The following is the evidence showing that Babar did
not visit Ayodhya. In Babarnama there is no reference of
Babar's visit to Ayodhya. There is no mention in
Babarnama that Babar commanded for construction of a
mosque in Ayodhya. (E.T.C.)
ii i - in- i| r| i-n | l i-
| li - - r| r | i | li- | li - r| i
ss | in r | ii il i ;li i;-
i n i | ( ro)
Regarding Ayodhya, the foremost material
pertaining to archaeology is in Cunningham's report only.
Thereafter, the second report is of Fuhrer, which is
probably of 1891. They were British Officers and Director
of Archaeological Survey of India. (E.T.C.)
1498
- i li r l i ii i| r| ii ii| ( rc)
My conclusion is that Babar never came to
Ayodhya (E.T.C.)
- ; li l i i i i| r| ii i iii r
r l l - i rzs - ri ii r - i i ri
r| ii| i - i iii ii-i r| r iii ii-i
i i r i l li ii| - l i i i
i ii-i i li r - i r | l i i
i ri l l | i -ii r | l i
- o oz i i -i ln - i- r | ( rc)
The basis of my inference that Babar never came to
Ayodhya, is that the route by which Babar was proceeding
in 1528 was not via Ayodhya. The basis of Babar's route if
Babarnama. This basis is the translation of Babarnama by
Beverige. I have read the entire transcription of
Babarnama, which was made by Beverige. Seeing the
transcription of Beverige, he (witness) said that Beverige
has considered AUD' as Awadh. Photocopy of pages 401
and 402 of Beverige's translation is before me. (E.T.C.)
- | -n - / r lii r l i i
- ii - ii i ini r ln r ii
lnn- - r| iini r| ( zoc)
I have written at page 71 of my book that Babar is
described as a main villain but this charge does not match
with his personality. (E.T.C.)
i ll- nii ii i- ii i ln- i
- ni| | r| ; lnln io|oli-| i i| i
i i| i | ni| li r| ( zoc)
Rushbrook Willian and Radhey Shyam both have
commended about Babar's personality. Besides, R.P.
Tripathi and Banarsi Prasad Saxena also have praised
1499
Babar. (E.T.C.)
i i i - - n scs ssc n r | - |
liiii iiln i r-n r | - | -n li - i| -
n ii i- ir i ri n l-i i - - - -n
lin - l ni ii| ( zo/)
Radhey Shyam had been my teacher from 1968 to
1996. I agree and am influenced with his thought. While
writing my book, I got cooperation from my teacher
Radhey Shyam and while writing the book, I used to
discuss with him from time to time. (E.T.C.)
- | -n o ss i lii r l i
l -l- i l r - li rini ni i lii rini l
ir - r| | -i o i ni|| i - + ri r r -
r| i r| r l~ - r i ri r l l i ri
ri ni ni i rini| ( zc)
I have written at page no. 88 of my book, had Babar
commanded to construct the mosque, it would have been
written Under the Command of Zahiruddin Mohd. Babar
Ghazi. The fact which I stated above, I have not read it
anywhere, instead, I have said of my own that if Babar had
commanded, it would have been so. (E.T.C.)
- | -n - o ss r lii r l ;|
r n - i i i r l l i i i i - ni i ni ri
l - l i i r l r -l - i i | ri |
( z/)
I have written at page no. 89 of my book that there
is great probability that the inscription, wherein it is
written that this mosque had been built by Babar, might
have been installed subsequently. (E.T.C.)
- ; in iii li l r lii i ln i r
i r| i lii i i| -l- ir| |i ni ii
1500
r lii i ii nni ii ii lii i | lii-
s| | | nn| i|| - | i - r s| | i lii i ri
ni ii| i| -l- - n| lii i i l- i ir
i | ( zs)
I conducted research on the point as to how much
old and of which period these inscriptions are. The
inscription engraved on the outer wall of the mosque
appeared to be old. But the calligraphy of the inner
inscription appeared to be of 19
th
Century. In my opinion, it
could be an inscription of 19
th
Century. The Babri mosque
had three inscriptions in all of which two were outside and
one was inside. (E.T.C.)
r in l i|n ii lii i i n|n rini ii - ;
iii lii i l - n ln i| | --i; i n|n r i
ii| |n i| --i; - i; r| li r| - s
- in in ; ln il --i; | in
li| i|| ( zs)
I have written the fact that the inner inscription
appeared to be new, because it so appeared from the style
of caligraphy. I have not undertaken any study on
Caligraphy. After having discussion with few experts, I
wrote about this caligraphic style. (E.T.C.)
r r| r l - n ;l nri i ni r n - r |
( zzz)
It is true that I have a very little knowledge of
history. (E.T.C.)
r r| r l in n|i -ni - ll- l
nin r| r i| iin ii nin n|i -ni -
r| r | ( zzs)
It is correct that in the aforesaid three books,
description of William Finch is the same, i. e., their
1
1501
description regarding India's Travel is the same. (E.T.C.)
ll- l ii nin - r lii r l r
ii ni ii, i i i li, ln| | rin - ii| r
r| r l ll- l i l i i-i rn i,
r lii r | ( zzs)
William Finch has written in his travel account that
when he visited Ayodhya, he found the Fort of Ayodhya in a
dilapidated condition. It is correct that according to
William Finch, that fort was called Rama's Palace, it is
written. (E.T.C.)
r r| r l l - ll- l ii ii
li, - i| -l- | i| i i- - -ii -l
i| -i i|, ln ll- l ; ii |i i i
ii nin - r| li| ( zzs)
It is true that by the time William Finch travelled
Ayodhya, Babari mosque had already been constructed and
Ram Janmasthan Mandir (Temple of Rama's birthplace)
was also existent, but William Frinch did not mention these
two facts in his travel account. (E.T.C.)
- i i| -l- ii -ii |
r | r r| r l i| -l- i- i - ;i nin
|i | l-in r| r - | i r | ( zsc)
According to me, Babri mosque has been built at
the centre place of Ayodhya. It is correct that Babri
mosque is situated almost in the middle of Ram Kot area.
This is my opinion. (E.T.C.)
- -i; i i ni n r| i| ( zs/)
I did not read the description of Tiffenthaler.(E.T.C.)
- i ir i| ir i ni n i i r| r| ( zrs)
I have not studied entire description of Father
Joseph.(E.T.C.)
1502
ll - l i r ni n i - -i n
-i ni r | - l l - l i r ni n i i
-i ni r |
( zrs)
I regard the description of William Finch as a
source. I consider the description of William Finch to be
biased. (E.T.C.)
r ri nn r l i i r i
; l i i i r srr i l i l n -i
r| i i ri ; l i ni l n | r
i| ri nn r l srr - i ; ;l i n i i i|
sssr n - ni li ni ri | sssr n - liln
-i i i n ;l i i iln r | i|| (
zsz)
It is wrong to say that the inscriptions seen by
Mr. Buchanan, were not present on the disputed site
after 1855 and some other inscriptions had been
installed there. It is also wrong to say that any new
inscription was installed in 1855 or the same was
destroyed in the riot of 1934-35. However, in the riot of
1934-35, damage was certainly caused to the disputed site
and previously installed inscription. (E.T.C.)
- | -n s r -| li lii ii
l i| -l- i l-i i n n i i| - r i ri |
;i i r i| r l ii r -l- i - i i ,ii
r| i; n; i|| . . . . .-i r i| li ;- r l i ii
i| r| ii| r i| -i li -| r, i - sz lii
r l l i ii r| ii, ;l i i- -i l- -l
lni i i i r| rini| ( zsr)
I had drawn correct conclusion at page 91 of my
book that Babari mosque might have been constructed
1503
during the time of Tughlaq or Sharkies. It also means that
probably this mosque was not built during the period of
Babar or by Babar... It is also my conclusion that Babar
never came to Ayodhya. This inference of mine is also
correct, as I have written at page 92, that since Babar did
not visit Ayodhya, no question of demolishing Ram Janma
Bhumi Mandir arises. (E.T.C.)
r -| i r| r l n -l- i| iii ii
rini ni r ro r | rin|| ( soo)
My this opinion is correct that if the mosque had
been built by Shirky rulers, it must have been built prior to
1504. (E.T.C.)
-| i li - i i ss n s - r i
c in i z - r i l ii | - lii i| l -ni
- -ii r i i i ii ii | i; -
-i n r| r| r | ( soo)
In my opinion and belief, the statement contained in
paragraph no. 8 at page 5 and paragraph no. 2 of suit
no.4/89 to the effect that the old graveyard shown in the
site plan related to those Muslims who were killed during
the battle between Babar and previous ruler of Ayodhya, is
not correct. (E.T.C.)
;lnrii - - r r ni r l r in nn
r | -l - l -ni i - i - l n
l i i - | l nri l i i ni - r|
i i n r ni i - | i l i r | ( soo)
As a historian, I can say that these things are
incorrect. The averments regarding mosque and
graveyard made in the plaint do not tally with my
historical research and facts and differ from my
opinion. (E.T.C.)
1504
l ir n l- - liln i i ii i|
-l- ri r | ri n l- - ; i i i | -l-
ri r | - | i - ;i li i i| -l- r | ( sos)
Mr. Nevil in his gazetteer has probably termed the
disputed structure as Babri Mosque. In his gazetteer, he
has termed the structure as the Mosque of Babar. In my
opinion, it means Babri Mosque. (E.T.C.)
1352. Learned counsel for the defendants have stressed
upon the motive of this witness and in furtherance thereof they
drew our attention to certain facts antecedents to the publication
of his book The Disputed Mosque-A Historical Enquiry in
1991:
-| -| i i- - r ii i| r | -i lir ll
-l i| - i - l - nn n r i r | i - i
lir i| r i ii| - i i- i-i r-i i| r|
( zc)
The name of my wife is Mehar Afshan Farooqui. My
marriage has been solemnized as civil marriage, i.e., under
Special Marriage Act. Thereafter my Nikah too was
performed. Name of my father in law is Shamshul Rehman
Farooqui." (E.T.C.)
- lir - ;-i- i- i -|i li r| ( zc)
I have adopted Islam religion at the time of my
Nikah. (E.T.C.)
- ;-i- i- li ii - - i i- i| ii
ni ii i l il ii| - lr r i - ; - - -i
r | . . . .. . ii| - ;-il- ni | r | ( z/)
When I adopted Islam religion, at that time, I was
given a new name Sajid. Presently, I am neither a Hindu
nor a Muslim................ I married according to Islamic
rites." (E.T.C.)
1505
- i i i- i| i - ii r | | i; in
r| r l - n i| i i ; ii ni ri| ( zs)
I made nomenclature of my children in Persian
language. It is not so that I have some special interest in
Persian Language. (E.T.C.)
- |oo s/o - i li ii, -oo ill- i; -
s/z - i li i i -i lr-- | -oo s/ -
i li ii| ( zs)
I passed B.A. in 1970, M.A. in 1972 in Political
Science and thereafter, passed M.A. in Modern History in
1974." (E.T.C.)
r r| r l ii nn i i - n |oo|o
| ln | sss - l-| i|| ;| | -| l ln ni - s/ -
;irii lli - ri n| i|| r ni l ln ni
- r ; i|| sss - - | i| ri ni ii| ( zs)
It is true that after 11 years of continuous efforts I
secured Ph.D. Degree in 1989. Meanwhile, I was
appointed on ad hoc basis in Allahabad University in 1974.
This ad hoc appointment was made as a Lecturer. In 1989 I
became Reader also." (E.T.C.)
|, s/ sso n | r| | -l ir
;irii llni ln i| | r| | ir i| - n
in i | . . . . . c |, /s i -| ii| -r ii i|
ilri r ; i|| ( zs)
From January 1987 to 1990 Sri Bahiuddin Malik
Saheb was the Vice Chancellor. Sri Bahiuddin Saheb also
knew me........On 6
th
February 79 my marriage took place
with Mehar Afshan Farooqi." (E.T.C.)
r ii| - | i -| -| li ii | r-ln
r| r ; i|| ( zs)
This marriage did not take place with the consent of
1506
my wife and family members." (E.T.C.)
| ii| l-- i i lir | n ;l
| l - i ii | -| ln l i-il -ini
l i i ln ii| ( so)
Necessity of Nikah after registration of marriage,
arose with a view to obtain approval of my in-laws and for
social recognition it was essential to do so." (E.T.C.)
ri r i; | i| l - lir | r| -
i ii | i; r| - | i; i|| (l ri) -| i| r|
i; ri n| i|| ( so)
They had given me a choice that I should perform
Nikah. This choice of my in-laws was, in fact, my choice.
(Further said). Choice of mine too could be only
this."(E.T.C.)
lir l - -i ri i i ii| ;l -
- -i r i ii|" ( so)
For materialization of Nikah it was necessary to be
a Musalman. Therefore, I got converted as a
Muslim."(E.T.C.)
- n -| -| ; i - ; li ii| ( ss)
My wife encouraged me for this work." (E.T.C.)
- i-i r-i ii| ;|i| oio
i| r| ( ss)
Initial of my father in law, Shamshul Rehman
Farooqi, is S.R. Farooqi. (E.T.C.)
- | -n | - r lii r l - r ii
i| ;-i - |n -| - i i;l l lr--il
- i|( ss)
In the Preface of my book I have written that
Mehar Afshan Farooqi started persuading me to
popularize the historical truth." (E.T.C.)
1507
1353. They also pointed out that though he was registered
for Ph.D. in 1978 having passed M.A. in Modern History in
1974 but could not complete Ph.D. for a decade. It is only in
1988 when Sri Vahiuddin Mullick was the Vice Chancellor of
Allahabad University and Chief Minister of U.P. was Sri
Mulayam Singh Yadav he was conferred Ph.D. in 1989. Sri
M.M. Pandey, Sri H.S. Jain and Sri R.L. Verma all the learned
counsels stated that PW 15 converted himself a 'muslim' for the
purpose of marriage and also changed his name as 'Sajid' but has
appeared in the witness box mentioning his name as Sushil
Srivastava and this also shows lack of bonafide on his part and
refers to his statement on page 49 and 50:
r r| r l ii ini i - i il i|
r ni r i i| i| -i ni r | ( s)
It is correct that as per requirement I use to say
myself Sajid as well as Sushil. (E.T.C.)
- i i | - r| | r ; | - | r|( s)
I have not sworn in the name of 'Khuda', instead I
have sworn in the name of 'Ishwar'. (E.T.C.)
-i i- il r| r| - i- ln li r i
- -i r i r| - l i- i i; -r- r| r | - i- -
li ni r| ( ro)
My name is not Sajid. I have got converted my
religion and have become a Muslim but to me, the religion
has no significance. I believe in Adharma
(atheism).(E.T.C.)
1354. They also pointed out that the wife of PW 15 is well
qualified being M.A. in Medieval History and D.Phil. with
specialisation in Economic Policy of Delhi Sultanate which
she did in 1988 but her father was not a Historian and instead a
Government servant, a member of Indian Postal Service and
1508
retired therefrom as is evident from page 50:
- ;l i -- l - i n i | - i|
l- | l l- r , i- i| n r | ( ro)
My father-in-law was posted in Indian Postal
Services. He also is a literary critic and work as
such.(E.T.C.)
1355. About his conduct in the University the learned
counsel drew our attention to the statement of PW 15 at page
55/56:
r ri r| r| r l - ii -i - i ; i
r ; i i i - ri r-i li ni| ( rr)
It is not correct to say that any enquiry was
conducted regarding my character or that I was removed
from there after the enquiry. (E.T.C.)
r ri nn r l iir - ii i -
-| - -| - -| i l i | - n ; in | ii|
r| r l i n -|i - n nn i i i i| ii ii|
- n ; in | ii| r| r l i n -|i n
llni | -lri i i nii -lri siii ln
| ii i ln | iiii n i ii| ii
ri| -n ; in | ii| r| r l n -|i s..ss i
| ii -n n li i r ni li l - n ri li
li i| - n ; in | ii| r| r l llni
l| - so..ss i -ni o c ,ii - n r i l
li- - - i i| - i |oioo i n i- r-i li| -n
ri l -n r.r.ss i l| - ,ii ; ii i in r i l
- r i li- - - nii i| - i i i i i
| - lo .c.ss i i o -in i li - r
ii ii i l - n in| iiii - -- i i - -i ri
r i l n |ii i i l n - - r| li i
ni ii| nii ;irii llni - - | ii | li
-in ri i| i|| - n ; ii zs , ss i i - n
1509
li ni ii| ( rr)
It is wrong to say that Shah as a one member
Committee conducted the enquiry about my conduct. I am
not aware of the fact that the aforesaid Commission found
me guilty of tendering false statement. I have no knowledge
of this fact whether the Commission found me guilty of
indulging in scrofulous conduct or using salacious
language with lady teacher and students of the said
University. I have no knowledge of the fact that the
aforesaid Commission submitted its report on 13.04.1999,
recommending for my expulsion from there. I have no
knowledge of the fact that the Syndicate of the University
on 30.04.99, vide agenda No. 46, ousted me from the office
of the Head of the Department, Coordinator and DRS
programme. Of his own said that on 05.05.99 a letter of
Syndicate was received to the effect that I should hand over
the charges of the Head of Department and Coordinator to
another teacher. On 11.06.99 I submitted my resignation
from the post of Professor showing the reason that I have
been unable to qualify to the test of Gujarati language in as
much as, I could not be confirmed without clearing the
aforesaid test. And period of my leave was about to
exhaust. For this reason I was discharged from duty on
28.06.99. (E.T.C.)
r r| r l - | |o-oiir ;i| - -| -i
lnnn l-in r i ii| ( rc)
It is correct that I appeared in person before Sri
V.M. Shah Enquiry Committee. (E.T.C.)
r ri r| r l liin i| ii -
l, r liin li ii l r in - ii i- r| n
r | l~ s ii r| ; i i -ni li ii|
1510
(l ri) l i n - r i n - r| i | r ri
nn r l - n ii ii llni lii ni i
ii i in - ;-n|i li i i ;irii
i ii| ( rc)
It is correct to say that all the teachers of the
Department complained against me that they could not
work with me. Rather, only few teachers made such
proposal. (Further said ) that they were not satisfied with
my work as Head. It is wrong to say that due to
misconduct, I was expelled from the University and
without receiving that order, I resigned and returned to
Allahabad. (E.T.C.)
1356. For our purposes, however, suffice it to mention that
PW 15 has make out a new case and says that according to his
study there is grievous doubt whether Babar built the mosque in
dispute. He says that neither there is any material to show that
Babar ever visited Ayodhya nor the name Mir Baqi finds
mention in Baburnama. On page 217 he admits that as a result
of his research he has written on page 89 of his book that
inscriptions might have been fixed on the disputed building later
on mentioning that the disputed building was built by Babar and
on page 295 he refers to page 91 of his book where he has said
that the disputed building might have been constructed at the
time of Tughlaqs or Sharkis and may not have been built by
Babar. On page 300 he further says that if constructed by Sharki
Rulers, the disputed building might have been constructed prior
to 1504. He also says that averments in para 2 and 8 of the plaint
(Suit-4) that graves around the disputed building were of those
muslims who died in battle between Babar and the erstwhile
ruler of Ayodhya are incorrect statements (page 300). The
witness, therefore, has not supported the case of plaintiff (Suit-
1511
4) and on the contrary has taken a totally different stand. In fact
by reaching such inference, he has stated in his examination-in-
chief that the disputed building was not constructed after
demolishing a temple by Babar.
1357. Here one more aspect we need to mention. Though
the witness has been produced as Expert Historian but on page
222 he admits that he had a very little knowledge of history.
That being so according to own statement of the witness his
statement cannot be taken as an opinion of an Expert Historian
and, therefore, inadmissible under Section 45 of the Evidence
Act. Even otherwise, the extract of his statement we have
noticed above make it clear that neither the witness has made
any threadbare inquiry into the matter nor has done his job
honestly yet has written a book based on hearse and has claimed
it to be a book written by an Expert. He admits that he cannot
read Persian, Arabic, Sanskrit and Urdu (Page 33). He admits
that despite being historian he has accepted whatever said by
others on the basis of their alleged scholarly feeling and wrote it
in his book as a statement of fact (page 38). He has never
studied either Calligraphy or Epigraphy (Page 51) but has made
statement and recorded finding in this regard in his book. On
page 65 he admits that he has raised doubt on the Calligraphy
style of the text of the inscription at Babri mosque but
simultaneously admits that he had not the least knowledge of art
and science of Calligraphy. We in fact find it surprising with the
kind of dishonesty, such person has shown. In his book he has
given in the footnote reference of a number of books which he
admits that he had never studied (page 68). On page 77 he says
that he did not pay attention on the fact whether the inscriptions
were installed from the beginning or installed subsequently but
1512
on page 217 admits that he has written on page 89 of his book
that there is a possibility that the inscriptions might have been
installed subsequently. On page 106 on the one hand he admits
that he lacks knowledge of Epigraphy, Numismatic,
Archeology, Survey of Land, Science of Architecture, Turkish,
Arabic and Persian language yet simultaneously he says that
though the period of construction of the disputed structure, he
could not conclude but according to him it relates prior to
Mughal period. We are sorry to find that a person like PW 15
has written a book on such an important and sensitive matter
without having made an in-depth study on the subject and has
deposed before us claiming himself to be an Expert Historian
though simultaneously admit that he has a very little knowledge
of history. On page 218 and 219 again contradicting his earlier
statement he said that he has made research on the question as to
how much old and of which period the inscriptions are and
found that the inner inscription appears to be new from the style
of calligraphy while the outer one is old. Despite admitting the
fact that he has no knowledge of calligraphy he has made such
comments on calligraphy of the text of inscription which is not
expected from a responsible Expert Historian. Besides his
statement ex facie appears to be incorrect in view of the
admitted position as also mentioned in Epigraphica Indica
(1965) published by ASI that there were three inscriptions out of
which two got misplaced in 1934 and were restored by new one
which had some mistakes and did not contain the correct
original text.
1358. The lack of expertise of PW 15 in respect to
Medieval History has also been commented by plaintiff's (Suit-
4)'s another witness, i.e., PW 20, Shirin Musvi on page 129 of
1513
her statement where she said:
- | ii i ili il-- r io |i
ii i |- ;l lr--i l r i | i |
| i -n i -i ;l nri i r | ; i l
ri i ri r l -|i| lii ii | ; i r-n
r| r l i i n - l l r-- | i i l -| r| r |
( zs)
I do not agree with the opinion of Sri Surajbhan, an
Archaeologist, Dr. Suvira Jaiswal, Ancient Indian
Historian and Sri Sushil Srivastava, Modern Historian
and if they have said so that Mir Baqi was a Shiya, I do not
agree with their opinion because they are not authority
on Medieval History. (E.T.C.)
1359. PW 16, Prof. Suraj Bhan in his cross-examination
has said:
- n l i l n -i l i i i i -| i | ,i i
ni i ni i i i i i i ; | n i l
;| r| l -| l i i i r ri i l
l i l n i i i i - i | -l - ri | r lii i ni
r| ii ii ln| -l-| ( r/)
Except for an inscription carved by Mir Baqi, I
did not come across any other epigraphical evidence on
the basis of which the disputed site may be called Babri
Masjid. This inscription is as old as this masjid. (E.T.C.)
liln i - z nr ;l i n r i | r ii
;l i -i - i r i n ir i ;| i i -
|i - l ii| r i i in ;l i i| iiii - li
i - i| r| ini r r| r l - i| r| ni
;l -i - i i ;l i i r| ni ii i
i| ;l i i i i| r| ii| ( /r)
Inscriptions were engraved at two places in the
1514
disputed structure. Both of the inscriptions were engraved
in the stone but the slab of the outside inscription was fixed
in the wall. Both these inscriptions were written in Persian
language. I do not know Persian. It is true that I can not
read Persian. So I, could not read both the inscriptions at
the site and could not even see the inside
inscription.(E.T.C.)
r -l- i | | i; r ; r| i|, l~ r
-|i| ,ii i | ;i n i; n; i| i ;| ii i|
-l- -|i| iii r| | i|| ( ss)
This mosque not built by Babar on his own; rather,
it was built by Mir Baqi with the permission of Babar, and
for this very reason, the Babri mosque was built only as per
the means of Mir Baqi. (E.T.C.)
-l- - li lii i - r lii ii i -l- ni
i r - ii i| ii i i - ; li r,
i iin i ,ii r- l n i, - i r nii i i
+ li| n; lni - i| i r |
r |n i , -l- - ,i, l, i| -l-
- n - - i i ,i + ni ii| ; lii i - i|
-l- i i i - lii r , i - r ii -
ni i r| r l i i i i | - r | ; lii i - r
r| lii r l r -l- l| i i i ni i; n; r |
( ssssr)
It was so written in the stone inscription at the
mosque and the same had also been seen by me before
demolition of the mosque. There are several records in this
behalf, which have been provided to us by the Government
of India. I have read it in them and also in the books
written about Ayodhya.
This epigraph was engraved at the main gate of the
1515
mosque (again stated) that is to say, above the gate leading
to the main dome of the mosque. This stone inscription
refers about the construction of the Babri mosque, about
which I have already stated. This inscription is in
Persian. This inscription does not mentioned that this
mosque was built by demolishing any other
building.(E.T.C.)
i | -l - l i i i r - - r l r i
- - rzs ; -| - i | n| i | | ( ss)
From the inscriptions of Babri mosque, it is clear that
it was built in the year 1528 AD during the times of
Babar. (E.T.C.)
r l,ii n li r l r ii i - -
rzs ; o - ii ni ii, - i| ;i r| -ini r |( ss)
It has been determined by the scholars that this
structure had been built in the year 1528 AD during the
times of Babar. I also consider it to be correct. (E.T.C.)
i| -l- i l-i i in ni i rzszs
; -| - r i ii| i - n i - ni r | ( r/)
According to the facts determined, Babri mosque
was built in the year 1528-29 AD, which falls in the
Mughal period. (E.T.C.)
-i ; i i i| -l- r |s i i; lii
r| r, li ; l - in- -ni r i i| -l-
i i i inil- r l- ii, ;| i- ii ini ii| - ;
ii ii, ;i ;| i- - ii - lii r | r li
l- i li l i; n i i ni i n|i - n
-i - ni r| ( r/)
I have no special motive in calling this structure
Babri mosque, except for the fact that I am an
archaeologist and the structure of Babri mosque was a
1516
archaeological heritage and was known by this name. I had
seen it and have mentioned it so in my articles. It appears
to me, to be a more definite and precise method of
describing the said structure. (E.T.C.)
1360. The statement of PW 16 in respect to period of
construction and the person by whom, is solely based on two
inscriptions which he claims to have affixed on the disputed
building in Persian language though neither the witness can read
Persian nor could see the inner one. Here also on page 157 read
with 334 and 335 though the witness claims that the inscriptions
which were installed when he visited the premises were the
same as were installed at the time of construction of the building
and this shows that he has not read the text of the inscriptions as
published in different books from time to time and had no
occasion to compare the same but the statement has been made
on pure conjecture and surmises.
1361. The expertise of PW 16 on the matter relating to
Medieval History has been doubted by another witness of
plaintiff (Suit-4), i.e., PW 20, Shirin Musvi in her statement on
page 129.
1362. Further the witness do not claim to be an Expert
Historian but he is an Expert Archaeologist. Since he has written
an Article on the disputed building i.e. Paper No. 110C1/8
(Exhibit D37, Suit-5), it appears that to support its contents, he
came in witness box in his first appearance. For our purposes
suffice it to mention that here also the sole foundation for
claiming the period of construction of the building as 1528
AD by Mir Baqi, the entire stress is on the said inscriptions and
nothing else.
1363. Another Expert Historian Suvira Jaiswal-P.W.18, in
1517
her cross-examination with respect to the aforesaid aspect, has
said :
i i i - ii ii i - i r l ii
ii i r| - r| ni n| r| ( z)
Babur had come in the region of Awadh, I have
read so, but in fact, came to Ayodhya or not, I cannot
say.(E.T.C.)
l ni ;l nri i - ni n| r l c| ini|
- i ii - i| -l- i; | ( os)
but as a historian I can tell that in 16
th
century
Babar got constructed Babari Mosque in
Ayodhya.(E.T.C.)
- i | -l - i - s r| i
l i i r| i ;l - r| ni n| l
i | -l - l -n- - i | | - r i| r| ni n|
l i| -l- l-n- - i r -ii i
ii|( or)
I have read nothing about Babari Mosque, I did
not study thoroughly, therefore, I cannot say as to when
Babari Mosque came into existence. I cannot say as to
what was there at the site before coming into existence of
Babari Mosque. (E.T.C.)
- ii-i r| i r | ( z)
I have not read Babarnama. (E.T.C.)
r -| r l - i | ;l nri | l i i n r | r
i| -| r l - ; in - i | ;l nri l i i n
- ni r| i ; r | ( zzzs)
This is correct that I am expert in Ancient History.
It is also correct that I have come to this Court to tender
evidence as specialist in Ancient History. (E.T.C.)
1364. PW 18 admits that she has come to depose her
1518
statement as Expert Historian being specialist in Ancient
History (page 122-123). However, while on one hand she claims
that the disputed building was constructed in 16
th
century by
Babar at Ayodhya called Babari mosque and this statement she
is making as a historian but simultaneously on page 105 she said
that she has not read anything about Babari mosque and did not
study thoroughly and, therefore, cannot say as to when Babari
mosque came into existence. On page 121, she also admits of
having not read Baburnama at all.
1365. Shrin Musvi-P.W.20 in her examination with
respect to the aforesaid aspect has said:
(Examination-in-chief)
There was an inscription at Babari Masjid
divided in three parts and its some part were printed in
Beveridge's Babar-Nama. The entire inscription is
published in 1965, Epigraphia Indica published by A.S.I. It
is in Persian language and Nask-script. It mentions that
Mir Baqi got the mosque constructed in 1528-29 AD on the
orders and intention of Babar. The date of his construction
is found from its script by numerical calculation. (page2-3)
Buchanan visited Ayodhya in 1810 and described
about the same in his accounts. He has said that it is
alleged that Aurangzeb demolished a temple in Ram Kot
and constructed a mosque but he said that the mosque has
an inscription of the period of Babar, therefore, the
aforesaid view is ill founded. (page-4)
(Cross-examination)
r -| r l i -|i| i i i -i l n
li ii| ( zs)
It is true that Babar had appointed Mir Baqi
1519
Commander of Awadh. (E.T.C.)
i i ii i i r, -n i --i i
- r| r | r -i| i -i| i
i ni - i r | -in - r in i-| | li| r ; lni -
i r| r i -i| r| r - lii r i i
i i il i | | r lni i| ll - r | -
i| in| r | i l - | i ; - - n i r|
r | ( sos)
References of visit of Babar to Ayodhya are there
but it is not so in his Memoir. I have read these references
in other contemporary and nearby sources. Perhaps I have
read this in the book written by Khwand Mir. He was
contemporary to Babar. He was resident of Central Asia
and an officer of Babar. His book is in Persian script. I
know Persian. I do not remember presently any other near
contemporary source. (E.T.C.)
ii-i - - n ri n i r, r| i| -l- i i
l r| r| i ri l n -i - -l- ii i-
l- i|| ( s)
In Babarnama so far as I remember, there is no
reference anywhere of of getting any Mosque constructed.
Then of her own, she said that those days, to get mosque
constructed was a common practice. (E.T.C.)
i ii ii ii, - r| ni n|, i l
ii-i - ri i i i; l r| r | ( ss)
I cannot say as to when Babar came to Ayodhya
because in Babarnama there is no reference of his visit
there. (E.T.C.)
r -| r l i| -n | il i r| r
-| r l liln i + n r ; i -| i|
l -i; l- il i| lii ni l | ;ri|
1520
i ii| ii | | -n i l| - i
lii| ( rs)
It is true that 'Sani' means "the other" or 'second'. It
is true that in inscription on disputed structure, the title for
Mir Baqi was written as 'Asife sani' which was read as
Isfehani by Banerji. Perhaps Banerji has written this in his
book Babar's religion. (E.T.C.)
i - + i li r liln -i n lii i
i /r sso | - i ii li ii|
lii ii i - iii l i ii| - |
i|| - liln -i i n lii i i i ; ~i r|
li r ;- i-- i i --i i - r| lii r |
( zoz)
As I have stated above, I had deciphered the epigraph on
the disputed site between 1975 and 1980 and had studied
on this point also. The study of those epigraphs was not
necessary for my research. (E.T.C.)
r -| r l s/r r l i l n -i n
l i i i i | - n i ; i i | r| i | | ( z)
It is true that I had no knowledge of the epigraphs on
the disputed sites before 1975. (E.T.C.)
- i | ; l i | i -i | n i l i
;l i sccr - i i r | ( z)
She had seen the photograph of the original
inscription in Epigraphia Indica in 1964-65. (E.T.C.)
liln -i n| lii i n r i ; - |
ni i r| r l r n|i lii i l l -iii n i
i i| iiii - i | ( zz)
Three inscriptions were installed on the disputed site.
Presently I do not fully remember at which places those
three inscriptions written in Persian language were
1521
installed. (E.T.C.)
- i ii in li| r r r r l i ii
-|i| ii i i i| i ; i i |
ni|i ln| r| ( zz)
It is particularly mentioned therein that it was
installed by Meer Baqi under the orders of Babar and the
date of its installation is inferred by the word Khair
Baki. (E.T.C.)
- i i - l i l n i i l -i i rzs
- r i ri ni | ( zcz/)
In my opinion, first of all, the disputed structure
may have been constructed in 1528. (E.T.C.)
r ri l nn ri ni l liln i i l-i i
ro - li ni ri | ( z/)
It will be totally wrong to say that the disputed
structure may have been constructed in 1501. (E.T.C.)
o z,r ln szc | lnli | i
lii l nir ri i - i lii ni r l
i| -l- i ,ii nin co i r i; n| i| r co
i ii r| ri ni n r in sc - r| n| r | l
ro - i lr -ni ii r| r| ii ;l - i|
-l- i i r| r| ii ; i - i i| in li|
r r r| r l r ri l r in sc co i r
| r nn r | ( z/zs)
Attention was drawn to the date of 18-12-61 shown
on Paper No. 2/15-Ka-1 seeing which the witness stated
that it is written in para 1 that the Babri Masjid was built
by Babur nearly 460 years ago. It can not be older than
460 years if such statement was made in 1961. As Babur
did not even come to Hindustan in 1501, there was no
question of Babri Masjid being built at that time. Other
1522
things written in its para 1 are correct but it is wrong to
say that this statement was made 460 years prior to 1961.
(E.T.C.)
- i r -l- -| i| i; i| i i
ri r l i r - i; n| ;l - r r| ni n|
l i i i ii ii i r| i l l| i i - i
~i r| r| ( zs)
According to me, this mosque was got constructed
by Mir Baqi and he has said that it was constructed under
the commands of Babur, therefore, I can not tell whether
Babur had given any such command or not because it is
not referred to in any other source. (E.T.C.)
i | ni i | -| i | i r| i - r i i
ii-i - ; i- i i n li r| i| ini i- - r|
i l ri l i - n i r| r | - r r| ni n| l
i| ni -|i| i r| i- ii l ri l ni i ; i-
r| ri ni ii i ; i-- ri n| i| ni il ii | i
-| i - i i i - n r| -i -| ( so)
Baqi Tashkandi is the name of Mir Baqi, Babur
himself has used this name in Baburnama. I have not heard
the name of Baqi Sagawal, then said, I do not remember
so, I can not tell as to whether Baqi Sagawal was the name
of Mir Baqi, then said, Sagawal was not a name but was a
post, Sagawal was an office. I do not know what was his
duty and exact nature. (E.T.C.)
r ri nn r l i ;l- i liln i n r
i i ss n i ni l n i,l~ r r| r l r
r n r i li l i so
i- - li r| l-i n| ;l i liln i
n r i | n|i ;l i nn ~i - i n
-- i| i -n -i i ii| i| n|i ;l i
1523
r| - n r i , i rso r i | |n il |
--| i n|i ;l i | ll rso r | r | r
- | n i l i ;l i ~ - sccr - i r l
n| i ; l i rzs - r| n i | |n ili ;li
il i il liin i r i i| l|
r | ( scs/)
It is wrong to say that the inscriptions which stood
at the disputed structure were installed after the 1934 riot.
However, it is true that they were installed from before, as
Buchanan has mentioned in his account of 1810 AD. In all,
there are three inscriptions on the disputed structure. They
had different wordings but their meaning was almost same.
That is to say, the three inscriptions were installed at one
and the same time. They all belong to pre-1580 period. As
per the study of epigraphics, the script of all the three
inscriptions preceded 1580. I have read in Epigraphia
Indica Vol 1964-65 that the inscriptions was installed in
1528 itself. Epigraphia Indica is a Journal from the
Archaeological Deptt and it is fairly worth
relying.(E.T.C.)
- | | -n i l l r - i | i
; l i i - i r n| in ri r| lii r
i l r ilnn -n ri ni ii| | ,ii li| n; -n -|
| i; | - -i r i - ni i; | i+ - i| ri|
ilr| ( s/)
In Banerjee's book Babur and the Hindus also
I have read about two inscriptions but he has written
nothing in regard to the third one because it was
damaged.(E.T.C.)
i i i i - i; ii in r| r||( ss)
Babur did not say anything specific about
1524
Ayodhya. (E.T.C.)
|l- rs i i nir ri ;- li i
-|i| i| -l- i i ii| - lri i i
-n r l ; ii| ( c)
Seeing Exhibit 53, the witness said that Mir Baqi
was, as per its contents, the founder of Babri Mosque.
According to me, founder means the person who got it
built. (E.T.C.)
1366. PW 20 in her examination-in-chief, besides other,
has said that the inscription fixed at Babari mosque is divided in
three, and some part thereof was published in Baburnama by
Mrs. Beveridge and the entire inscription is in Epigraphica
Indica (1965) and this shows that the building in dispute was
constructed by Mir Baqi in 1528-29 AD. It is in Persian and
script is Nask. The inscription also shows that the construction
was made under the orders and as per the intention of Babar.
The first of her statement that there was one inscription divided
in three itself is not supported with what is pleaded and sought
to be proved by plaintiffs (Suit 4). Further the text of the
inscriptions as quoted in Baburnama by Beveridge and in
Epigraphica Indica (1965) differs. On page 121 of her
statement she claims to have seen the photo of original
inscription in Epigraphica Indica (1964-65) while the author has
said something else which we shall be discussing a bit later. On
page 29 she claims that Mir Baqi was appointed commander of
Awadh by Babar and on page 130 she says that Baqi Tashkandi
was another name of Mir Baqi and this name has been used by
Babar in Baburnama but we do not find mention of Mir Baqi or
the fact that Baqi Tashkandi was also called as Mir Baqi in the
Baburnama though some of the writers on their own have tried
to identify Baqi Tashkandi with Mir Baqi but without giving
1525
any material to justify such inference. She further said that
Buchanan in his account in 1810 has mentioned about three
inscriptions (page 136-137) but we do not find any such
publication or book written by Buchanan mentioning the same.
On the contrary we find that Dr. Francis Buchanan though made
certain survey for about seven years starting from 1807 but
could not get himself published any material in this regard and
later on his material was processed and a report was published
in 1838 by "Robert Montgomery Martin".
1367. In any case despite so many reasons some of which
we have already discussed, we find that the statement of the
above mentioned Expert witnesses suffer serious flaws and
make it extremely delicate situation for this Court to rely on
their opinion. The only thing which consistently emerges is that
the statement about the period of the construction and the person
who got the disputed building constructed is solely founded
upon the text of the inscriptions fixed on the disputed building.
There is no other material either to corroborate or to support it.
1368. Besides above expert historians, some other
witnesses have also deposed about construction of mosque, the
period and the persons who got it constructed.
1369. PW-1-Mohd Hashim in this regard has said:
- -|i| i i- i s| nr i r | ....-|i|
i i -i ii| ( s)
I have heard of the name of Mir Baqi very well. .
Mir Baqi was a commander of Babur.(E.T.C.)
i | ii i - r liii r
l r -l- l i| -l- ri ini r iriir i
i| i|`
-n i lii r r r| lii r - i -n r l r
-l- i r - ni-| r ; i|| ( sz)
1526
Question:- Have you got it written in para 1 of your
claim that emperor Babur built this mosque, which is
called Babri mosque.
Answer:- Whatsoever is written, is correctly written.
I mean to say that this mosque was constructed at the
behest of Babur.(E.T.C.)
i| -l- n n n r| r ; | ( sz)
There was no struggle while the construction of the
mosque was under way. (E.T.C.)
l| ni|i - nil i i i i n
ii i r -n | - i; n r| r ; l n -l- | n
i| i; n r| r ; | ( ss)
As per a narrative, no battle took place between
Babur and the then King or Kingdom of Ayodhya. When
the mosque was built even then no battle took place
there.(E.T.C.)
liln i l r- i| -l- rn r rzs -
ni-| r i ii| - | ii in i - ; ;-in | i -
li| n| r r r| r | ( oo)
The disputed building, which we call Babri mosque,
was constructed in 1528. The age of this building as
mentioned in paragraph 1 of my claim application, is
correct.(E.T.C.)
i | - -i ii| -|i| lii - -i ii| i
i | - -i i| - r| r ni l -|i | ;
- | i| iirii r i i| i| ii r| i | i | r -n i
i | i| l - r r| r ni l i i | ii
- r r -n r|| ( os)
Babur was a Sunni Muslim. Mir Baqi was a Shia
Muslim. Babur Abbas Qalandar was a Shia Muslim. I
cannot say Mir Baqi was his disciple. Emperor Babur
1527
never went to Ayodhya. The reign of Babur lasted for two
years but I cannot tell in which particular years this rule
was.(E.T.C.)
; -l - -i ni r i i i , l
r n-i - i i | | n; i | l r -l - i
i ; r , l -| i | i ri lii r i ii
- iir i n| ii i| i s lii ii
i - n i r| |
i in r i| lii r i r li ;
- r-n llii
-n r -| r , i i| lii r i ii| i i ri l
i| - | ni|i lr-- | li| r ; i|| ( zo)
This mosque had a stone detailing that this
mosque was built by Babur through Mir Baqi. (Himself
stated) It had written on it 'Emperor Babur built it.' Apart
from this, it had something more written on it which I
cannot recall at present.
Question:- Has it something further written which
runs as 'bina karb ei muhabatte kudishian' ?
Answer:- It is true that it was so written. (Stated on
his own) The entire history was written in
Persian.(E.T.C.)
i | n-i- lnii - ;i l ini r i i- i ni
- i r l r -l- i i; i|| ( zo)
It finds mention in many books of Babur and it is a
public talk that Babur built this mosque. (E.T.C.)
; -l- i lii r i ii l r lni n |
nr r , r -|i | liii ii| ( sc)
It was Mir Baqi who had got it engraved on this
mosque that it is a descending place of angels. (E.T.C.)
-i ri r l rzs r r- iii -l- ri r ,( c)
1528
I have to say that it has always been a mosque since
1528, (E.T.C.)
i ii r| i , i i ii nn| -n
| n i i i i ; i r| nii | r
ri nn r l r r n i i i- l ri
ii n i| ( /s)
Babur had not come to Ayodhya and he had not
camped five-ten kosas north of the river Saryu flowing
along Ayodhya. It is wrong to say that he used to come
there to do work lasting a week or ten days. (E.T.C.)
r nn r l iiir -|i| i -l- i l
i ; r - r| li ii| ( so)
It is wrong that emperor Babar had given no
command to Mir Baqi for constructing a mosque." (E.T.C.)
1370. P.W.2 Haji Mahboob Ahmad has said:
iriir i ii i| r| i| ....-|i| i i
iln ii| ( z/)
Emperor Babur did not come to Ayodhya. . Mir
Baqi was Babur's army chief. (E.T.C.)
i | i ; i ; i i - r| r | | i
;l i i; i i r| ri ni l ; -l- ii
| ini | ri i i i; - -i n ri | ( /c)
No battle with Babur had taken place in Ayodhya
and hence there is no question that the graves located in
the vicinity of this mosque may be of those persons who
may have have been killed in the battle with
Babur.(E.T.C.)
-l - - - i n r i , -i s
lii r i i| ii, l - n -i - r| l i s lii r i
ii|( o/)
Stones had certainly been used in the mosque;
1529
one stone had something written on it but I cannot tell what
was written on it. (E.T.C.)
1371. P.W.3 Farooq Ahmad in his cross examination has
said:
i lr -ni i iiir ii| i | -|i| r
-l- i; i|| ( c)
Babar was emperor of India. This mosque was built
by Babars Wazir Mir Baqi. (E.T.C)
i i - i| -l- r| i| li i| -l-
ri ini r| i| -l- i| i i ; -l- ii - r|
r | ( s)
It was the oldest mosque in Ayodhya, which was
called Babri Masjid. There is no other mosque older than
Babri Masjid in Ayodhya. (E.T.C)
1372. P.W.4 Mohd. Yaseen also in his cross examination
said:
- nili -l- i iriir i ii ii ;l
i| -l- ri ini ii| i i i -l- r| i|
i r - ii | i| i|| | in ni|ii - li|
rin|| - | in i ;lnri | lnii - r| | l i ni
i r | ( co )
The disputed mosque was built by emperor Babar,
due to which it is called Babri mosque. Babar himself did
not come over to build the mosque, and it was on his
command that his Wazir had got it built. Similar references
are found in history. I have not so read myself in history
books, but I have heard so. (E.T.C)
- ni l i ;-i n - - - -i r i - i
ni r i i i , l i | - s l i i r i i i | r
-| r l lii r i ii - iir i| - ; in
i ni r| li l | -i ssr lr| in ni-| ;-in
1530
li| ri | ( /)
A stone was affixed adjacent to the member of the
disputed structure, which had something inscribed in
Persian. It is true that Bafarmude Shah Babar was
inscribed over it. I did not pay attention to the fact that on
that very stone, 935 Hizri was inscribed regarding the
construction of the building. (E.T.C)
1373. P.W.6 Mohammad Unus Siddiqi in his cross
examination has said:
- i| -l- i - -| i - r ii i
i| ( s)
I am chairman of the Faizabad branch of the Babri
Masjid Action Committee. (E.T.C.)
sr/ i scr | - n ; ii in -i - r i
ii l r i l i; i|| - r| ni i+ ni l li|
ni ; ii i lni i ii| ( s)
Between 1957 and 1965 I came to know as to when
this property was erected and by whom. I am not in the
position to tell how much area this property basically
had.(E.T.C.)
i ri l - | in -i r (l ri l
ss/ i r ; r |) r -| r l i- r r l iin -
i i- i| i ini r| ( ss)
(Stated on his own) my memory is weak. I began to
develop weakness in my memory from 1986. (Again stated
that it has started from 1987). It is true that condition has
now become so serious that I forget even the name of my
sons. (E.T.C.)
- i i-i r| i| i lr-- | | lni r- i
- | i| - r| i| -l- i l r| ii| - i l r|
i r ii r ;l - n i| -l- i - ii| in ri
1531
n|| ( rr)
I did not read 'Baburnama'. In the history books
which I studied as a part of my course, I did not come
across the mention of the mosque anywhere. As I hail from
that very place, I came to have knowledge of the Babri
mosque. (E.T.C.)
-l - - - i ni r i i i l
i nr| ii l i r - ;| ni-| -|i| i|
i|| . . r -i - n| r | i | | . . r nr|
i| - i|| - r n i| i r i r| nr| i -
i ii| l-l i i - li i - ilii li ii
i ri s r n i| | i|| ( cz)
On the member of the mosque was placed a
stone with an inscription that it was built by Mir Baqi at
the diktat of Babur. . . This stone was fixed to the
member. . . This inscription was in Persian. I have read
Persian to some extent. I read the inscription. After doing
my middle, I sought admission in Arabia College and
studied Persian to some extent there. (E.T.C.)
1374. PW 10, Mohammad Idris has said:
ri n - i ii r , lni i ini ,
r r r l ; -l- | ni-| -|i| i; i|| i l
;i l iii - ini ri r, ;l - r ni r l r
-l - rzs - i ; n; i | | ( sz)
As far as I have come to know by reading the books
and by hearing people that this mosque had been built by
Mir Baqi. Since this fact has continued to be published in
newspapers, I can say that this mosque was built in
1528.(E.T.C)
i lri i - ni - r| ini l -
-|i| i i- i r | r -i i| rzrzc
1532
ii r n i-| i| i i | i i
ni i| | rln r | i - -i i ;-i- ri-| i |
i - -i i ;l ilr r l i i| n-n| lii
i|( s)
I do not know about the commanders of Babar, but
have certainly heard the name of Mir Baqi. He was a very
big personality of that time i.e. around 1525-26. He was a
soldier and he is known as a soldier. He was Muslim and
follower of Islam. Since he was Muslim, naturally he was
against idolatry. (E.T.C)
i lr -ni - l| -l- i r| ni i| l| -l
i i| r| ni i| ( so)
Babar did not demolish any mosque in India. Did
not demolish any temple as well. (E.T.C)
l| i| ni|i | lni - - i r| i l i i|
i i ii ri| r i in rili ri lri ni
ii, . . ri n -|i| i i r, r i i - ii i
- -nl ni ri ri| . . lnii - - i r l l -|
r -l - i ; n; , r ;| ni -| r
i r - i | n - | r ; i | | ( ssss)
I have not read so in any history book that Babar
ever came to Ayodhya. He did go to Bihar along the border
of Awadh province, ... So far as Mir Baqi is concerned, he
did come to Ayodhya and remained here permanently. ... I
have read in books that the land over which this mosque
was built, was in form of an open space prior to its
construction. (E.T.C)
ssr lr| i - ii l| lr ii | r -n
r| i|| . . . . . r -| r l i ii i l
i ; ii n r| || i| ~ni i i | r -n i
i i-- ri n| i|| | r r -n ssz i ss/ lr| i
1533
| - i-- r ; i|| | si -|-i -| n r ; i| - ; in
r| r| ni ni| ; in i l io ln i-| | li|
r ; lni - r| ( )
No Hindu king ruled over Ayodhya in 935 Hizri era.
. . . . It is true that Babar did not contest any important
battle to conquer Ayodhya. The reign of Sherky Sultan of
Jaunpur came to an end on arrival of Babar. His reign
ended between 932 and 937 Hizri era. He had small
battles. I cannot correctly tell about them. This fact is
mentioned in the book written by Dr. Bilgrami. (E.T.C)
1375. P.W.12 Ram Shankar Upadhyay has said:
- i l i i i i i i l rzs - i | -l -
| , ; l | i i ; l i r| i i ( so)
The premise of my research was that there was no
dispute on the point of the Babri mosque being built in
1528 and also on its date, (E.T.C.)
1376. P.W.19 Maulana Atiq Ahmad has said:
ii-i - liln -i i| i| -l- i i i ;
l r| r| ( s/)
Baburnama does not have mention of building the
disputed structure, that is, Babri mosque. (E.T.C.)
- n r -| i r| r l - l -n - r| i
i| -l- i i- i ri | r i| i r| l - ; r|
i i ii| ( c)
I do not properly remember in which book I read
the name of Babri mosque for the first time. I also do not
remember when I read it for the first time. (E.T.C.)
i| -l- i - - i r | i liln -i
ii i i| -l- lr -ni - i; r li l ni|ii -
ini r | i r| r l i | i; n| i| -l- i|
-l- i- r| i| in| r | - n - n; ni l| -l-
1534
i l i i; , i r| ii n ; -l- il | i|
-l- ii| r -| r l i| -l- liln -i
-|i| ii ii| i r - | i | -l - r
-i ni r i i i - r i n l i | r ; i | l r
-l- -|i| i r - i; r | r -i - i r|
ii in lni i| -l- - i rii r -
ii - ls r r| r -| r l | lni iii i
i-| li - i r ri r l i - i ri
ni r i r | ( /c)
I have read about Babri mosque. Babar had built
many other mosques in India besides the one at the
disputed site, whose references are found in history. It is
not that all the mosques built by Babar are known as Babri
mosque. I definitely do not remember any mosque built by
Babar i.e. besides this mosque or the Babri mosque. It is
true that Mir Baqi had built Babri mosque at the disputed
site, but on the command of Babar. An inscription was
fixed at the Babri mosque in which it was mentioned that
this mosque had been built by Mir Baqi on command of
Babar. I did not see this inscription myself, but the contents
of the inscription have been published in the aforesaid
book Babri Masjid. It is true that on basis of said book
and other articles, I am saying that such inscription had
been fixed over there. (E.T.C.)
1377. PW 23, Mohd. Qasim Ansari has said:
i| - ii s lii ii| - r|
i| | - ~ir, -ir-- i | s in i
li| i|| r - n i r| r l ln| nr i | in
~ir, -ir-- lii ii| i | - lii r i ii r i i
r i lii ii| r in -ii i| li| i| i |ii i|
li| i|| nr i i , n|n| i; li| r ;
1535
i| | r lii- rzo l- | + i; li| r ; i| | r| r|
i- l- | |i; li| i| i ; i| | li|
i| | ... ( /z/s)
There was something written in Persian outside.
But I could not read that. The words Allah and
Muhammad, and some Ayats (verses) of the Quran were
written in Arabic language, inside the structure. I do not
remember at how many places verses of the Quran and the
words Allah and Muhammad were written . Whatsoever
was written in Arabic, was all engraved. These Ayats were
engraved on stones as well as on walls. 2-3 lines were
engraved on every place. These engravings were on the
elevation of 15-20 feet. At certain places these engravings
were at the depth of 8-10 feet or even at greater depth.
(E.T.C.)
1378. PW 26 Kalbe Jawwad in his cross examination has
said as under:
ri n - n i r i| -l- i n
-| i | rzs - i ; i | | ...i| -l- i l
ii ri ini r ri r| r r -i - r i ii l r r
| i nr i | i - i i r ; | ( )
To the best of my memory, the Babri mosque was
built in 1528 by Mir Baqi, Governor of Babar. ... Babri
mosque exists at the place which, these days, is called
Ayodhya. It so transpired that earlier this was a deserted
place and was inhabited subsequently. (E.T.C.)
rzs li l n -i i i | -| i | i
l r -l - ni -| | n| | ( z)
Prior to 1528, there was vacant land at the
disputed site over which the mosque was built. (E.T.C.)
liln -i i - i -n - i| -l- i-
1536
| r i i ; -n - r| i r , iiin i ii -
i r | ; li li| r| n; r | ( r)
I have read only the book titled Babri Masjid as
regards the disputed site and have not read any other book.
I have only read newspapers and articles. I have no special
study on this topic, because not much books have been
written on this topic. (E.T.C.)
- i i| -l- i i| -l- rni
r | . . . - n ; in i; l r| li l liln
i i i| -l- i| i r|| ( rs)
I call the Babri mosque as Babri mosque on the
basis of hearsay and my studies. ... I have not carried out
any separate research as to whether the disputed structure
was Babri mosque or not. (E.T.C.)
- n l ;ni -i - r l i i| ii r| ii|
lrii r-i i |n i i r| -ni| r
-- l r l -l- -| i| i| l i | ( s/)
I know only this much that Babar never came to
Ayodhya. Hence, the question of he being victorious does
not arise. It is established that the mosque was built by Mir
Baqi and not Babar. (E.T.C.)
i| -l- i| -l- ri i ;~- - n s
r i i s -in niri r i| r ;~- - n ir |
r-i | lni i| -l- i s ii r i| ... ir |
ir il- i | - n r r| -i - i -ii; i ir -
ii| ( ss)
I gathered the knowledge of the Babri mosque being
Babri mosque from certain studies and few Matebar
witnesses. I gathered this knowledge from Sabahuddin
Abdul Rehmans book Babri Masjid and certain
articles .... Sabahuddin was a scholar. I do not know his
1537
topic of specialization. (E.T.C.)
1379. PW 29 Dr. Jaya Menon though had appeared to
depose her statement against A.S.I. report dated 22
nd
August
2003 but in her cross-examination she has also made statement
about the period of construction of disputed building and also
the person according to her who had constructed it. She said:
I do not know the total number of mosques
constructed in Ayodhya during 15
th
and 16
th
century but I
know that Babri Masjid was constructed during 16
th
Century. (Page 146-147)
I know that Babri Mosque was erected in the year
1528 by Mir Baqi. . ... I do not exactly know as to who Mir
Baqi was, but as I think, he was a commander possibly in
Babar's army. ( Page 154-155)
I don't know whether Babar had come to Ayodhya
and Faizabad. I have heard about Meer Baqi who is
supposed to have built Babri Masjid. (Page 219-220)
1380. PW 30 Dr. R.C. Thakran in his cross examination
said:
rzs ; o - i i ii i i ii, ;|
ii| - n r| r | ( ss)
I do not know as to who was the ruler of Ayodhya,
Faizabad in 1528. (E.T.C.)
liln i i ,ii i; n; -l- r | ( s)
The disputed building is a mosque built by
Babur.(E.T.C.)
; i - l ii - i -l- ii ii, -
-iii nii lii - i ii| - ;l nri n
- i ii i lii i ni i in -ini r | - ri l
; i ni in lnril ii| -iln r i r| ;i
;lnrii l ii ,ii n n r | iii i
1538
lii in ; ii| i -i - l| -n r|
li, ... ; ii -ii n ii | ii -|l-| i - -iln r|
li| - ri l r r| ;lnriii ,ii r in -iln
| i | i|| ; -i - l| ;lnrii | -n i -
r| i r| ( sr)
In news-papers and magazines, I read that Babur
had built a mosque in Ayodhya. As a historian, I consider
news-papers and magazines to be a source of knowledge.
(Himself stated) Historians through study and analysis
determine whether historical information obtained from
these sources is true or not. I did not through any book
verify the veracity of this information, obtained from the
news-papers and magazines. ... I did not certify the
authenticity of these articles and monographs. (Himself
stated) This fact had already been certified by the
historians. I have not read a book of any historian in this
regard. (E.T.C.)
- li l i l n i rzs ; -| ni n
i ri ni | ( srs)
In my opinion, the disputed structure may have
been built around 1528 AD. (E.T.C.)
1381. PW 32 Dr. Supriya Verma in his cross examination
said:
The inscriptions found at the disputed site of excavation
refer that Meer Baqi, the commander of Babar has built
this mosque as I remember now. (Page 34)
1382. D.W.2/1-1 Sri Rajendra Singh in his cross
examination has said:
rzs - l i l n -i ini i- - l i
lni i i i l -i i l i ni i i , l s
in i| -l- rn r | ( zc)
1539
In the year 1528, a structure had been built at the
disputed site after demolishing the temple of Lord Rama,
which is called Babri mosque by few persons. (E.T.C.)
- | -n - ;|n ili ; li l li
-|- - scr i rii li r , l - i r l |n ili
;li i - i r, -n - liln ;-in - n n| -i,
l i i; i|, l s r i i i; - li - - i
i i| si r| ( scs/)
I have referred Epigraphia Indica Arabic and
Persian Supplement 1965 in my book and I have read the
same. The Epigraphia Indica, which has been read by me,
contains photographs of the three engraved stones fixed in
the disputed structure as well as the translation of the
Epigraph. (E.T.C.)
i i i ni ii, n iiii ni i iln
i ii| r -i r l l - i ii | n n,
- i i, i nn n ini ii i ri i n
; ilr- i| ,ii l n ri ri| i ii | n n i ,
ni r ii r| n i, ii s i | | iiii
| li ri i i ii ii| - n ; i -
s s --i i ri r l -ii i i i i
s ilii i i i ii, ; i ; ilr- i| ,ii
l n n ii i| i i si iin ni| i|
ii si iin | r i-i rz/rzs ; o - r ; , i sso
lr| n ~ r| ;- i ; r r| r l ; i-i i
; -r|i | i-ii i li ii- - i r| r | zs -i ,
rzs i ii-i - z , rzs | i-i i li l-ni
r | i i li ri ni r l s ln-, rzs l-ni
ri| . . . . . .zrzc ln-, rzs - i il i ii-| -
ni ii i ii-| r r n iri ri n i, ri
ni r l ; r ini ri n ri| - ri l
ii-i - ; i - ii| l- n| r| ( /ss)
1540
By the time Babar went to Ayodhya, he had
defeated Rana Sanga. It is possible that when Babar went
towards Ayodhya, it fell under Oudh and its Governor may
have been appointed by Ibrahim Lodi. When Babar had
gone towards Ayodhya, he had not gone to Ayodhya and
instead had halted few kose (distance of two miles) away
from Ayodhya along the banks of Ghaghra river. I am able
to recollect a bit that after halting at that place, Babar had
sent few of his associates to Ayodhya due to which Sheikh
Baijeed, the Governor appointed by Ibrahim Lodi, fled
away from Ayodhya. This fleeing incident of Baijeed
occurred around 1527-1528 AD, which is equivalent to 930
Hizri era. There is no doubt that details of incidents
occurring many months after this incident, are not
available in the Babarnama. After 28
th
March, 1528, the
next detail contained in Babarnama is of 2
nd
April, 1528. It
is possible that the next details commence from 18
th
September, 1528. . . . . . . . . On 25-26
th
September, 1528
Babar had been to Urva valley in Gwalior and before
reaching Urva valley, he had passed through many cities.
It is possible that he may have passed through Agra. (The
witness) stated on his own that information in this behalf
can be had from Babarnama. (E.T.C.)
- ri l r| i ii | n i i r
il | n i ni ii, ri i- r
ii | n ni, i n -n | | nii n|| i; -
nii ni r| ri n - n --i r , r in ln- rzs i
| r | | i i i i | n ni ii, n i| r
ii r| ni ii| i i i | | i
i ii| - ri l - i i r| | in ni
i+ ni|( sz)
1541
(The witness) stated on his own that at time of his
first visit to Ayodhya, he had proceeded towards Gwalior,
from where he returned and went to Ayodhya, which is
mentioned in second and third line of the said paragraph.
To the best of my memory, this incident is subsequent to
September, 1528. On the other occasion as well when
Babar went towards Ayodhya, he did not enter Ayodhya
and halted at a distance of 10 kose from Ayodhya. (The
witness) stated on his own that I would be able to give the
complete facts only after looking at the reference.
(E.T.C.)
1383. D.W.2/1-2 Sri Ram Saran Srivastava in this regard,
has said:
li lri l i l n i rzs - i
i i , ; i i in i n r nii li i| r| iln
rini r | ( z/)
According to records, the disputed structure was
built in the year 1528. This is claimed by people and the
records also prove it. (E.T.C.)
i ni i i ni r l l i l n -i l i l n
i rzs - -l - - i i ni i i |
( s)
It is said that in the year 1528 AD, the disputed
structure was built at the disputed site as a
mosque.(E.T.C.)
l li iii ni ni r l rzs -
i - l ni -l- i; i|| ;lnri | -ni ni
ni r l i r| r| -| - r i i - -|
i| -l ni -l- i i i- li| ( sr)
But from the records it appears that in the year
1528 Babar had built the mosque after demolishing the
1542
temple. It is gathered from history books that Babar was
staying at a nearby place and his agent Mir Baqi had gone
ahead to demolish the temple and build a mosque.(E.T.C.)
ri n - i r, i rzs - liln -i
r | in r| l-n| r i i; -i- i| i r| r l
l ni ni ri l i rzs - liln -i ni
ri| ( sc)
From my studies, no reference is found about Babar
going to the disputed site in the year 1528 and there is no
such source from which it is found that Babar had been to
the disputed site in the year 1528. (E.T.C.)
li i n -l - -| i | rzs
- i ; | ( sc)
According to records, the above mosque was built
in year 1528 by Mir Baqi. (E.T.C.)
liln -i n li i i li i i
r -i - r i l i r - - -| i| ;
i i l-i i ii (lni ) i l ii ii|
-|i | l -l- i ii ii, - -|i r| i||( s/)
From perusal of records and inscriptions at the
disputed site, it transpired that under the order of Babar,
his agent Mir Baqi had built this structure for descension
of angels. There were no minarets in the mosque built by
Mir Baqi. (E.T.C.)
liln i -l- - rzs - i; n|
( ss)
The disputed structure was built as a mosque in
1528 A.D. (E.T.C.)
r liln i rzs - ll- n li ni ii | - r in
ii n l- | -n - li| i|| ( rz)
The disputed structure was built in 1528. I have
1543
written this in my book after reading the gazetteers of
Faizabad. (E.T.C.)
- | -n in o zco |, - liln i
| l-| |i li lii i i ~ i li r, i i| -
ii i l- ; -ii i lni n i -ii nii ni
r | ; i - ; lnii - i ii i | | lnii -
i ii i | | lni - li ii| ( c)
In my book, paper no. 260 C-1/1, I have mentioned
about the inscription over the western wall of the disputed
structure, which was in Persian and in which this place
was termed as the place of descension of angels. I had read
this in many books and wrote it in my books on basis
thereof. (E.T.C.)
liln i i -| i | -l- - ii ii
nii ;- l i i i ni r i i i l r lni n
i -ii r ii| ri l - + r i r| li r l
-|i | liln i i -l- - ii ii, l~
- r i li r l i l lii i - l~lin ii r
lni ( l) n i -ii ii| ( //r)
The disputed structure was built as a mosque by
Mir Baqi and there was an inscription reading that it was
the place of descension of angels. The witness stated that I
have not stated above that Mir Baqi had built the disputed
structure as a mosque and instead I had stated that as
contained in the inscription, it was a place of descension of
angels. (E.T.C.)
i l lii i - ~i ii, r i -n n i
lni l ii ni ii|
- n ; i - ni r| r l lni n | nr i
-l- ri i ni r i r|| ( /r)
As contained in the inscription, this structure was
1544
built for descension of angels.
I have no knowledge of the fact whether the place of
descension of angels can be called mosque or not.
(E.T.C.)
- ; i - ln| i| -ni i li r ,
- lii r l i liln i i -l- - ii
ii, ii n -| i| i i ii ii, r i| -l- r|
r |( /c)
In all those books I have studied in this respect, it is
written that Babur got the disputed building built as a
mosque, that is to say, the building which Mir Baqui built,
is the Babri mosque itself. (E.T.C.)
-| r ii| l -l i ni rzs - liln
i ii ni ii, l ln r| i|| si| i
i n i i ini | l- ri n; | ( /s)
My knowledge of the disputed building being built
in 1528 by demolishing the temple, preceded my
appointment. Both of the afore-said things came to be
substantiated after enquiry. (E.T.C.)
1384. OPW 9 Dr. T.P. Verma in his cross examination
has said:
rzs - i i - i| -l- i i i ~i
l-ni r | r in - | i| r l rzs - ii - i|
-l- i; n; | ( z)
There is a reference of the Babri mosque being built
at Ayodhya in 1528. I have also read that Babri mosque
was constructed at Ayodhya in 1528 AD, (E.T.C.)
o i| -l- |, n i i ri -i i `
o | r| | ( z)
Question:- Were you present there at the time when
the Babri mosque was built ?
1545
Answer:- No, Sir. (E.T.C.)
i| -l- i i i l ri i
-| i | ni i | ri n| l i i i i
l i i l i i | l n| l i i i i -| i |
ri l i i i i i , i | i i i i - l i i i | l
liii i -|i| li - s liii ii, -
liii ili| - n i| -l- ni ii, i| i
liii r r| i| ni ri i | ; lii ii i
li |n ili ;li li i - i lrn ilin r i
r , li ~i - | -n i i i ;lnri in-
- li r | . . . . .|n ili ; li - | in -n i i -
r| in n|i lii ii i i r| n|i r| lii i li
iiii - li n i| lii ii r n- ri ni r l r
-l- i|| ( z)
After the construction of the Babri mosque, Mir
Baqi Tashkandi, commander of Babur, got three stone-
blocks inscribed there. The inscriptions engraved on the
three stone-blocks at the instance of Mir Baqi, were in
Persian language. Among the stone-blocks which Mir
Baqi had got inscribed in Persian, one stone-block was
fixed to the Babri mosque till the last time, but the
remaining two stone-blocks had disappeared some time
earlier. Accounts of these stone-blocks has been published
with their translation in the Persian part of 'Epigraphia
Indica', which fact I have made mention of in my book
titled 'Ayodhya Ka Itihaas Evam Puratatva'. . The
aforesaid three inscriptions find description both in
'Epigraphia Indica' and the aforesaid book of mine. All the
three inscriptions were written in Persian language. From
these inscriptions it is evident that it was a mosque.
(E.T.C.)
1546
lni n i -ii
- ;-l - i i ;i i r ri i ilr l ri
nii i ni r i ii|
nii i ni ini i- - r i ii| r in
li - li| n; i||( s)
The place of descension of angels.
As per my interpretation, it ought to mean that deities
incarnated themselves at this place.
Deities incarnated in the form of Lord Rama. This
thing was written in Persian. (E.T.C.)
i n n|i lii ii - l| i| lii i i - ii
r| ii, i - i ii| - lii i r| i ii lii ii
i - i ii| ( s)
I saw none of the aforesaid three inscriptions, but I
read about them. I did not decipher the inscriptions; I read
about them.(E.T.C.)
nin i| lii ii - i i i- i l i
i l i i i i li ni ii| in lii ii
- l| - i| i i i ~ i r| ii| - li iiii
l r| -nni r | l -ni i - ~- li ii
- r| lii ii l li iiii - li n i | -ni -
|n ili ;li li i l- l ,ii ni
ii-i i i r | . . . |n ili ;li - r lii
r i r l li i i| lii i i r - -|i|
lii i| ( )
Almost all the inscriptions have made mention of
Babur's name, blessings for him as also orders for him. The
arrival of Babur did not find mention in any of the
aforesaid inscriptions. I do not at all understand the
Persian language. Whichever books I consulted, said that
these inscriptions were written in the Persian language.
1547
Out of those books, 'Epigraphia Indica', Persian part is a
translation of 'Baburnama' scripted by Mrs. Beveridge. . . .
It is written in 'Epigraphia Indica' that Mir Baqi got these
inscriptions prepared at the behest of Babur.(E.T.C.)
ss|z,so nin ss|z,ss
o i r | |n ili ;li | ln r, l i - i
+ ~ i li r `
-n | ri| ;| in i ss|z,sr in
lii ii i -i n i s r | in iss|z,sc r
lii i i -- i si r | lii i i ---
i in i ss|z,s/ si r i n| lii i
i - -- i in i ss|z,s/ in
iss|,ss si r| lii i i -i - li
n r | ; lii ii lr| | lnli ssr i i lii ni r
i ; -| i rzzszs ni r | ;|l - r -nni r
l lii i rzs - li n r | ( r)
198C- 2/ 90 to 198C-2/99
Question:- Is this a copy of that very 'Epigraphia Indica'
you have referred to above ?
Answer:- Yes, Sir. Photographs of the aforesaid
inscriptions are published on this very paper no. 198 C
2/95. The text and translation of the first inscription is
published on paper no. 198 C-2/96. Paper no. 198 C-2/97
carries the text and translation of the second inscription
and paper nos. 198 C 2/97 & 198 C 1/98 carry the text
and translation of the third inscription. These inscriptions
date back to the reign of Babur. These inscriptions have
935
th
year of the Hizri calendar written on them which
comes to be 1528 29 AD. That is why I have the
impression that these inscriptions were written in 1528.
(E.T.C.)
1548
- ; in ni r-n r l liln i rzs ; -| -
-l- - ii ni ii,( zrr)
I do agree that the disputed structure was built a
mosque in 1528 AD, (E.T.C)
i - i i r| ni, l~ ilni
ii i| ini i (-| i| n) ; i- i i- li, ii n
i -| i| i i i i il | i ii ri
ni| i i ii ii | n i i i; ~ i r|
l-ni r | i| -l- ni-| i i ii -|i| i i i
ii| i i il i i | i-i r ,
n r -i ln i | r , r - r| ni ni r| ; i
- -i i -r- i i n| l i i i r ,
i i | i n r i , i -i i i ni r l i
;- i l i i i i - ssr l r | i i n rzs ; o |
l nl i | r ; r | l | l i i i - l -i i i
-r| i i l nl i r| l -n| r , l -ni r | -
| -n r i- - -i c i- n|
-i r - ssr l r| i s l n- rzs ; o -i i r | ;|
-i c - n| -i r - ssc l r| i / l n-
rzs ; o -i i r | ; nii i ssr lr| i i n-n
rzs n i rini| - -i c li i
i i - - s l n- rzs i n l n- rzs n
i i i l -ni r | ii-i - s ln- rzs ; o /
ln- rzs n li - l| i| - l i lni i i i ;
~i r| l-ni r | ( ssr)
Babar himself did not go to Ayodhya and instead
Baqi Shagaval (Mir Baqi), along with other commanders,
completed this task i.e. occupied Ayodhya and established
the administration and thereafter Babar proceeded towards
Gwalior after handing over charge of Awadh to Mir Baqi.
No reference is found about Babars re-visit to Ayodhya.
The incident of construction of Babri mosque is subsequent
1549
to the incident of Babar proceeding towards Gwalior after
making Mir Baqi in-charge of Awadh, but I cannot tell as
to how much later. The sole and the most important
evidence in this behalf are the three inscriptions,
believed to be fixed in the Babri structure, and two of
these inscriptions are dated 935 Hizri or 1528 AD. The
month and date of construction is not found in any
inscription, and only the year is found. At serial no. 6 of
first column at page 114 of my book, I have taken three
Moharram 935 Hizri to be 18
th
September, 1528. At this
very serial no. 6 I have taken three Moharram 936 Hizri
to be 7
th
September, 1529. As per this calculation, the 935
Hizri year must have continued till August, 1529.
According to the details of my serial no. 6, the Babarnama
contains complete descriptions from 18
th
September,
1528 to 7
th
September, 1529. The Babarnama does not
contain any reference of demolition of any temple between
18
th
September, 1528 to 7
th
September, 1529. (E.T.C)
1385. OPW 11 Dr. Satish Chandra Mittal in his cross
examination has said:
i | -l - rzs - | i | | - i
li i| n l- i i - i i l- c/
i | | - l r ii, l - ; -l- l-i i
| ini | i|| r ini -|i| i | i|| i
i -|i| i| -l- | ni-| i; i|| ( 18-19)
Babri mosque was built in the year 1528. At that
time, Babar was alive. According to the gazetteer, Babar
had camped near Ayodhya at distance of about 6-7 kose
(one kose being equal to two miles) at the time when he had
given the command for construction of this mosque. He had
given this command to Mir Baqi, and thereafter Mir Baqi
1550
had got Babri mosque constructed. (E.T.C)
- ri- i/ - i in
io/|,os o i i li r, r lni
- i i r| r , in r in i nn| lii ni
r | - n r r| -i - r l l, l l-i -i- ni-| -il-
lri sss - | -n lr-- | -|l-| -i i n i|
-- l-l-- i ; -- ; li i~ -z li| r , i i - nin
i i r| i | -i - ni -| -i l - ; i i n
- l i ; -i i i ni n i n i | . .
- n l l -i -i - ni -| -i l - ;l nri i r|
i , n ,ii li| -n i lnril l- -r- i
-ii ini r | -i- ni-| -il- | -n - ; in i
rii li r l i rzs - i--il- -l lni |
-ii -l- i l-i i li ii| . . . . .- ii
i/ - i ,ii -l lni -l- l-i i i i i
-i- ni -| -il- ,ii llin lni l i n
-o/|,os iiiln r i i i i i| - ;|
lni ri li r| ( zcz/)
The paper nos. 107C-1/109 to 110, mentioned by
me in para-17 of my affidavit, are not the references of the
pages of that book and possibly this paper number has
been mentioned inadvertently. I do not know whether the
famous British surveyor Montgomery Martin, who wrote
the book History, Antiquities, Topography, Statistics of
East India Vol.-II in the year 1838, was posted in Awadh
or elsewhere. In those days, many surveyors like
Montgomery Martin were posted at many places in India
as surveyor. ... The British surveyor Montgomery Martin
was basically not a historian, but the book written by him
is considered important from historical point of view. In
this book of his, Montgomery Martin has referred that in
1551
the yaer 1528 Babar had demolished Ramjanmbhumi
temple and built a mosque at that very place. ... The
contention in para-17 of my affidavit regarding demolition
of temple by Babar and building of mosque in its place, is
based on the book written by Montgomery Martin, whose
excerpt is at page 107C-1/109, and my statement of the day
is also based on that very book. (E.T.C)
1386. O.P.W.12 Kaushal Kishor Mishra in his cross
examination has said:
-| -- ln r n s| r| r| i s i -| -- ln
-i ri n; r | ( )
Now my memory is not very good. My memory has
weakened for five-six years. (E.T.C.)
; - l i -| i| i- iln n ii ii
i -l- i l-i i ii ii| -|i| - - n - i-
i iln i| r -l- ln i i r -|i|
i| ;| ii| - lni ii | i i| l - n --i
r| r| ( ss)
This temple was demolished and a mosque was
erected in its place by a commander called Mir Baqi. Mir
Baqi was at that time commander of Emperor Babur. How
many years ago this mosque had been constructed, was
known to my father and grandfather; but I do not have any
recollection of it. (E.T.C.)
1387. Most of the above witnesses are not experts yet what
discern undoubtedly that everybody's impression and opinion
about the period of construction is based on inscriptions and
nothing else. Therefore, scrutiny and study on inscription
become vital.
1388. The written material which throws some light on this
aspect consists of Gazetteers (published from time to time);
1552
settlement and survey reports; History books and certain other
books pertaining to the disputed site/building though strictly
speaking not written by well known historians but those persons
claim to have collected information on the basis of their own
inquiry or investigation etc. or had acquired knowledge in the
capacity in which they were working or otherwise or due to the
interest generated in the matter after dispute spread
countrywide. We would place on record what has been said in
such published material and also consider their credibility etc.
simultaneously.
Gazetteers-Settlement/Survey Reports:
1389. 'Gazetteers', mostly published in 19
th
and 20
th
century during the pre-independence period, and, one after
independence, published under the auspices of U.P. Government
and another by the Government of India are the documents
heavily relied in these cases. It is not in dispute that 'Gazetteers'
are not the documents published under some statutory provision.
In order to understand their evidenciary value and authority we
have to first consider what 'Gazetteer' means.
1390. Learned counsels have placed before us a printout
taken from internet from the site Wikipedia, the free
encyclopedia under the heading Gazetteer. It says that a
'gazetteer' is a geographical dictionary or directory, an important
reference for information about places and place names, used in
conjunction with a map or a full Atlas. It geographically
contains information concerning the geographical makeup of a
country, regions or continent as well as the social statistics and
physical features such as mountains, waterways, or roads.
Examples of information provided by gazetteers include the
location of places, dimensions of physical features, population,
1553
literacy rate, etc. The Oxford Dictionary defines the
gazetteer as a geographical index or dictionary. It refers to a
document published by British Historian Laurence Echard in
1693 bears the title Gazetteer's or Newman's Interpreter: Being
a Geographical Index. Echard wrote that the title gazetteers
was suggested to him by a very eminent person whose name
was not disclosed. The next part was published by Echard in
1704 as the Gazetteer simply. This is considered to be the
introduction by the word gazetteer into the English language. It
is said that since 18
th
century the word gazetteer has been used
interchangeably to define either its traditional maning (i.e., a
geographical dictionary or directory) or a daily news paper such
as London Gazetteer. Tracing the history of gazetteer
Wikipedia, the free encyclopedia says:
Gazetteers of ancient Greece existed since the
Hellenistic era. The first known gazetteer of China
appeared by the 1st century, and with the age of print
media in China by the 9th century, the Chinese gentry
became invested in producing gazetteers for their local
areas as a source of information as well as local pride.
Although existent only in fragments, the geographer
Stephanus of Byzantium wrote a geographical dictionary in
the 6th century which influenced later European compilers
of gazetteers by the 16th century. Modern gazetteers can be
found in reference sections of most libraries as well as on
the Web.
In his journal article "Alexander and the Ganges"
(1923), the 20th century historian W.W. Tarn calls a list
and description of satrapies of Alexander's Empire written
between 324 and 323 BC as an ancient gazetteer. Tarn
1554
notes that the document is dated no later than June 323
BC, since it features Babylon as not yet partitioned by
Alexander's generals. It was revised by the Greek historian
Diodorus Siculus in the 1st century BC. In the 1st century
BC, Dionysius of Halicarnassus mentioned the chronicle-
type format of the writing of the logographers in the age
before the founder of the Greek historiographic tradition,
Herodotus (i.e. before the 480s BC), saying "they did not
write connected accounts but instead broke them up
according to peoples and cities, treating each separately."
Historian Truesdell S. Brown asserts that what Dionysius'
describes in this quote about the logographers should be
categorized not as a true "history" but rather as a
gazetteer. While discussing the Greek conception of the
river delta in ancient Greek literature, Francis Celoria
notes that both Ptolemy and Pausanias of the 2nd century
AD provided gazetteer information on geographical terms.
Perhaps predating Greek gazetteers were those made
in ancient Egypt. Although she does not specifically label
the document as a gazetteer, Penelope Wilson (PhD,
Lecturer in the Department of Archaeology at Durham
University) describes an ancient Egyptian papyrus found at
the site of Tanis, Egypt (a city founded during the
Twentieth dynasty of Egypt) which provides the following
for each administrative area of Egypt at the time.
The Domesday Book initiated by William I of
England in 1086 was a government survey on all the
administrative counties of England; it was used to assess
the properties of farmsteads and landholders in order to
tax them sufficiently. In the survey, numerous English
1555
castles were listed; scholars debate on exactly how many
were actually referenced in the book. However, the
Domesday Book does detail the fact that out of 3,558
registered houses destroyed in 112 different boroughs
listed, 410 of these destroyed houses were the direct result
of castle construction and expansion. In 1316, the Nomina
Villarum survey was initiated by Edward II of England; it
was essentially a list of all the administrative subdivisions
throughout England which could be utilized by the state in
order to assess how much military troops could be
conscripted and summoned from each region. The
Speculum Britanniae (1596) of the Tudor era English
cartographer and topographer John Norden (15481625)
had an alphabetical list of places throughout England with
headings showing their administrative hundreds and
referenced to attached maps. Englishman John Speed's
Theatre of the Empire of Great Britaine published in 1611
provided gazetteers for counties throughout England,
which included illustrative maps, short local histories, a
list of administrative hundreds, an index of parishes, and
the coordinates of longitude and latitude for county towns.
Starting in 1662, the Hearth Tax Returns with attached
maps of local areas were compiled by individual parishes
throughout England while a duplicate of their records were
sent to the central government offices of the Exchequer. To
supplement his 'new large Map of England' from 1677, the
English cartographer John Adams compiled the extensive
gazetteer "Index Villaris" in 1680 that had some 24,000
places listed with geographical coordinates coinciding with
the map. The "Geographical Dictionary" of Edmund Bohun
1556
was published in London in 1688, comprising 806 pages
with some 8,500 entries. In his work, Edmund Bohun
attributed the first known Western geographical dictionary
to geographer Stephanus of Byzantium (fl. 6th century)
while also noting influence in his work from the Thesaurus
Geographicus (1587) by the Belgian cartographer
Abraham Ortelius (15271598), but stated that Ortelius'
work dealt largely with ancient geography and not up-to-
date information. Only fragments of Stephanus'
geographical work Ethnica () have survived and
were first examined by the Italian printer Aldus Manutius
in his work of 1502.
The Italian monk Phillippus Ferrarrius (d. 1626)
published his geographical dictionary "Epitome
Geographicus in Quattuor Libros Divisum" in the Swiss
city of Zurich in 1605. He divided this work into overhead
topics of cities, rivers, mountains, and lakes and swamps.
All placenames, given in Latin, were arranged in
alphabetical order for each overhead division by
geographic type;. A year after his death, his "Lexicon
Geographicum" was published, which contained more than
9,000 different entries for geographic places. This was an
improvement over Ortelius' work, since it included modern
placenames and places discovered since the time of
Ortelius.
Pierre Duval (16181683), a nephew of the French
cartographer Nicolas Sanson, wrote various geographical
dictionaries. These include a dictionary on the abbeys of
France, a dictionary on ancient sites of the Assyrians,
Persians, Greeks, and Romans with their modern
1557
equivalent names, and a work published in Paris in 1651
that was both the first universal and vernacular
geographical dictionary of Europe. With the gradual
expansion of Laurence Echard's (d. 1730) gazetteer of
1693, it too became a universal geographical dictionary
that was translated into Spanish in 1750, into French in
1809, and into Italian in 1810.
Following the American Revolutionary War, United
States clergyman and historian Jeremy Belknap and
Postmaster General Ebenezer Hazard intended to create
the first post-revolutionary geographical works and
gazetteers, but they were anticipated by the clergyman and
geographer Jedidiah Morse with his Geography Made
Easy in 1784. However, Morse was unable to finish the
gazetteer in time for his 1784 geography and postponed it.
Yet his delay to publish it lasted too long, as it was Joseph
Scott in 1795 who published the first post-revolutionary
American gazetteer, his Gazetteer of the United States.
With the aid of Noah Webster and Rev. Samuel Austin,
Morse finally published his gazetteer The American
Universal Geography in 1797. However, Morse's gazetteer
did not receive distinction by literary critics, as gazetteers
were deemed as belonging to a lower literary class. The
reviewer of Joseph Scott's 1795 gazetteer commented that
it was "little more than medleys of politics, history and
miscellaneous remarks on the manners, languages and arts
of different nations, arranged in the order in which the
territories stand on the map." Nevertheless, in 1802 Morse
followed up his original work by co-publishing A New
Gazetteer of the Eastern Continent with Rev. Elijah Parish,
1558
the latter of whom Ralph H. Brown asserts did the "lion's
share of the work in compiling it."
1391. In 19
th
Century it is said that gazetteers were widely
popular in Britain with publishers such as Fullarton, Mackenzie,
Chambers and W & A.K. Johnston, many of whom were
Scottish, meeting public demand for information on an
expanding Empire.
1392. The above discussion gives us an idea and broad feature
of documents published and termed as Gazetteer. There is
distinction between Gazette and Gazetteer. The British
Government enacted Official Gazette Act, 1863 (Act No.
XXXI of 1863) and published various Gazettes thereunder. The
Gazetteer, as said about is not founded on a statute but being a
document published under the authority or auspices of the
Government, deserve much more reliability and confidence. It
constitute an important source of historical and other
informations in general and most authenticated data about the
then existing affairs.
1393. The extent to which informations contained in
Gazetters can be believed, relied and considered has been
subject matter of Courts time and again wherein the information
contained in the Gazetters has also been utilized in one or the
other manner. Some of such cases may be referred as under. It
appears that the consensus of the judicial opinion is that
information contained in a Gazetteer can be considered but
carrectness thereof may need corrorroboration. It all depend on
the nature of dispute in every case.
1394. In Fulbati Kumari Vs. Maheshwari Prasad Singh
AIR 1923 Patna 453 a Division Bench of Patna High Court
relied upon the Bengal District Gazetteer, Volume XVII in order
1559
to gather some information about what happened at Dumri when
Captain Brown took over charge of the operations in the jungle
terry tracts in 1774.
1395. In Sukhdev Singh Vs. Maharaja Bahadur of
Gidhaur AIR 1951 SC 288 Bengal District Gazetteer, Vol.
XVII was referred and in para 10 the Apex Court held:
The statement in the District Gazetteer is not necessarily
conclusive, but the Gazetteer is an official document of
some value, as it is compiled by experienced officials with
great care after obtaining the facts from official records.
1396. In Gopal Krishnaji Ketkar Vs. Mahomed Jaffar
Hussein AIR 1954 SC 5 a dispute regarding management of a
Darga known as Haji Malang came to be considered before the
Apex Court. The Darga had two tomb, one of a Hindu and
another of Muslim saint. The Court referred to the Gazetteer of
Bombay to find out the history which is said to have lost an
antiquity and from the gazetteer it appears that a Muslim saint
came to India as an Urban missionary in 13
th
century and after
his death, he was buried in the said Darga. There was another
tomb called Mayi's tomb where the body of a Hindu Raja's
daughter treated by Bawa Malang as his daughter was buried. In
the peculiar facts and circumstances of the case, the Apex Court
observed that such matter cannot be governed either by Hindu
or Muslim law but should be governed by its own special
customs or by general law of public religious and charitable
trust.
1397. In Chhote Khan & others Vs. Mal Khan & others
AIR 1954 SC 575, the Court referred to Gazetteer Gurgaon
District (1910) with respect to the properties owned by Meos of
Ferozepore Tehsil and others villages in Gurgaon. It also
1560
referres to the settlement record of 1877 observing that it is an
important document.
1398. In Biswambhar Singh & others Vs. State of Orissa
& another AIR 1954 SC 139, the Court referred to Hunter's
Imperial Gazetter, Volume 4, page 478 which mentions certain
facts about the origin of Bhuyans as also the Settlement Report
of 1907-1911.
1399. In Commissioner of Income-tax Vs. Sri
Ramakrishna Deo AIR 1959 SC 239, the Court referred to the
District Gazetteer, Vishakhapatnam, 1907 in para 3 of its
judgment.
1400. In State of Bihar & others Vs. Bhabapritananda
Ojha AIR 1959 SC 1073, the Court referred to Bihar District
Gazetteer relating to Santal Parganas, 1938.
1401. In Swami Motor Transports (P) Ltd. & Anr. Vs.
Sri Sankaraswamigal Mutt & Anr. AIR 1963 SC 864 the
Court resorted to rely on Madras District Gazetteers, Madurai
in respect to certain statistical data published therein in support
of the claim of the State observing that this is the information
furnished from authorized Government publication.
1402. In Mahant Shri Srinivasa Ramanuj Das Vs.
Surayan Dass & Anr. AIR 1967 SC 256 the Court said:
These statements in the Gazetteer are not relied on as
evidence of title but as providing historical material and
the practice followed by the Math and its head. The
Gazetteer can be consulted on matters of public history."
1403. In Laxman Siddappa Naik vs. Kattimani
Chandappa Jampanna and others AIR 1968 SC 929 the Apex
Court approved the consultation of Bombay Karnatak Gazetteer
of 1893 and certain other similar documents to find out the
1561
distinguishing customs and manners of different tribes.
1404. Sri R.L.Verma, however, submits that in a suit
where the question of title of temple or property is involved, it
cannot be said to be a question of history and therefore, neither
the Gazetteers nor the report of Archaeological Survey etc. can
be an appropriate book of reference for deciding such a
controversy and placed reliance on Farzand Ali Vs. Zafar Ali
46 IC 119 where it is observed:
We are inclined to think that the use of the
historical works to establish title to the property cannot be
justified on the strength of Section 57 of the Indian
Evidence Act. The question of title between the trustee of a
mosque, though an old and historical institution, and a
private person, cannot, in our opinion, be deemed to be a
'matter of public history' within the meaning of the said
section."
1405. The submission, in our view, is totally misconceived
and travels much beyond the point for which the various copies
of gazetteers have been filed before us by the parties and in fact
some observations therefrom are also relied by Sri Verma. For
the purpose of historical events and fact as they were centuries
ago, the manner in which they have taken are detailed in the
documents published under the authority of the then
Government in the form of Gazetteers.
1406. Mahant Shri Srinivasa Ramanuj Das (supra)
dictum has been followed in Yadarao Dajiba Shrawane (Dead)
Vs. Nanilal Harakchand Shah (Dead) & Ors. 2002 (6) SCC
404.
1407. The first gazetteer in respect to Indian sub-continent
came to be published in 1828 under the title East India
1562
Gazetteer by Walter Hamilton (second edition reprint 1993
by Low Price Publications, Delhi) containing particulars and
descriptions of the Empires, Kingdoms, Principalities,
Provinces, Cities, Towns, Districts, Fortresses, harbours, rivers,
lakes and, C. of Hindostan and the adjacent Countries, India
beyond the Ganges and the eastern Archipelago.
1408. Hamilton's "Gazetter" of 1828 on page 353 under
the heading 'Oude' gives following information about Ayodhya :
"Pilgrims resort to this vicinity, where the remains of the
ancient city of Oude, and capital of the great Rama, are
still to be seen; but whatever may have been its former
magnificence it now exhibits nothing but a shapeless mass
of ruins. The modern town extends a considerable way
along the banks of the Goggra, adjoining Fyzabad, and is
tolerably well peopled; but inland it is a mass of rubbish
and jungle, among which are the reputed site of temples
dedicated to Rama, Seeta, his wife, Lakshman, his
general, and Hanimaun (a large monkey), his prime
minister. The religious mendicants who perform the
pilgrimage to Oude are chiefly of the Ramata sect, who
walk round the temples and idols, bathe in the holy pools,
and perform the customary ceremonies.
1409. Thereafter Robert Montgomery Martin, for the first
time sought to contradict local belief or tradition about the
person who made construction by referring to an inscription on
the wall of the disputed building according to which it was the
work of the conqueror Babar falsifying the local tradition of its
construction by Aurangzabe in his work "The History,
Antiquities, Topography and Statistics of Eastern India"
(1838 AD) (Ex. 20, Suit 5-Paper No.107C1/109-110). The copy
1563
of the book in all 6 volumes available to the Court is the first
Indian reprint 1976 by Cosmo Publications, Delhi. The details
of inscription referred to in the above passage have not been
given. It says at page 334/335, Vol.II, as under:
".... if these temples ever existed, not the smallest trace of
them remains to enable us to judge of the period when they
were built; and the destruction is very generally attributed
by the Hindus to the furious zeal of Aurungzebe, to whom
also is imputed the overthrow of the temples in Benares
and Mathura. What may have been the case in the two
latter, I shall not now take upon myself to say, but with
respect to Ayodhya the tradition seems very ill founded.
The bigot by whom the temples were destroyed, is said to
have erected mosques on the situations of the most
remarkable temples; but the mosque at Ayodhya, which is
by far the most entire, and which has every appearance of
being the most modern, is ascertained by an inscription on
its walls (of which a copy is given) to have been built by
Babur, five generations before Aurungzebe."
1410. Edward Thornton in A Gazetteer of the
Territories under the Government of the East-India
Company and of the native States on the Continent of India,
first published in 1858 (reproduced in 1993) by Low Price
Publications, Delhi (Book No. 10) on page 739 (Paper
No.107C1-10 i.e. Ex.5 Suit 5) under the heading Oudh
observed as under:
According to native tradition, they were demolished
by Aurungzebe, who built a mosque on part of the site. The
falsehood of the tradition is, however, proved by an
inscription on the wall of the mosque, attributing the work
1564
to the conqueror Baber, from whom Aurungzabe was fifth
in descent. The mosque is embellished with fourteen
columns of only five or six feet in height, but of very
elaborate and tasteful workmanship, said to have been
taken from the ruins of the Hindoo fanes . . . . . (emphasis
added)
1411. We do not find from the above Gazetteer whether
Thornton himself had viewed the alleged inscription, whether
there was only one inscription or more than one and whether
Thornton was capable of himself reading Persian/Arabic or the
said information is based on secondary evidence, i.e.,
information he might have received from somebody else whose
authenticity is also not known. To us it appear that the above
observations are founded on what has been noticed by Robert
Montgomery Martin in The History, Antiquities, Topography
and Statistics of Eastern India by Robort Montgomry
Martin (Vol-II) (first published in 1838 AD) (Supra) (Ex. 20,
Suit-5-Paper No. 107 C1/109-110) where referring to the survey
made by the Dr. Buchanan, Martin referred the inscription and
contradicted local belief and tradition of demolition by
Aurangzeb and said that it must have been the work of Babar.
1412. However, from the words an inscription, to us it
appears that according to his information there existed only one
inscription on the wall of the mosque which attributed the work
to Emperor Babar.
1413. Then comes P. Carnegy's A Historical Sketch of
Tahsil Fyzabad, Zillah Fyzabad (hereinafter referred to as
P. Carnegy's Historical Sketch). He was an Officiating
Commissioner and Settlement Officer at Faizabad and in 1967
prepared the said report which was published in 1870. Copies
1565
of frontispiece, pages 5, 6, 7, 19, 20 and 21 have been filed as
paper No.107C1/17-23 i.e. Ex.49, Suit 5 (Register 20, page 35-
47). Appendix-A containing the list of sacred places in and
about Ajudhia has been filed as Ex. A-10 (Suit4) (Register 16,
pages 67 to 78). With respect to construction of the disputed
building, on page 20 and 21 of the book, (Paper No.107C1/22-
23), P. Carnegy has said:
The Janamasthan 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 wilderness. These
were the Janamasthan, 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.
Babar's mosque.- According to Leyden's memoirs of
Babar that Emperor encamped at the junction of the Serwa
and Gogra rivers two or three kos east from Ajudhia, on
the 28
th
March1528, and there he halted 7 or 8 days setting
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
1566
dedicated to the glory of that Emperor.
1414. The reference of inscriptions in Carnegy's Historical
Sketch is also at page 27, Section VI under the heading
Buildings at Serial Item 5 which states as under:
Babar's mosque with stone inscriptions in Ajudhia, date
A.D. 1528, and stone columns of infinitely greater
antiquity.
1415. Here Carnegy has referred two inscriptions on the
disputed building to infer that the same was constructed in 935
Hizra (corresponding with 1528 AD). He has also not said
anything further. He also gave no details or the text of the
alleged inscriptions.
1416. In Gazetteer of Oudh by Mr. W.C. Benett, C.S.,
Assistant Commissioner (1877) (Book No. 11), the factum of
the construction of disputed building is given on page 6/7 which
is a virtual reproduction of what is said in P. Carnegy's
Historical Sketch (supra) as evident from the following:
"The Janamasthan and other temples.--It is locally
affirmed that at the Muhammadan conquest there were
three important Hindu shrines, with but few devotees
attached, at Ajodhya, which was then little other than a
wilderness. These were the "Janamasthan," the
"Swargaddwar mandir" also known as "Ram Darbar,"
"Treta-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 to 1707; and
on the third, that sovereign or his predecessors built a
mosque, according to the well-known Muhammadan
principle of enforcing their religion on all those whom they
1567
conquered.
Babar's mosque.--According to Leyden's Memoirs of
Babar, that Emperor encamped at the junction of the Serwa
and Gogra rivers two or three kos east from Ajodhya, on
the 28th March 1528, and there he halted seven or eight
days, settling the surrounding country. A well-known
hunting ground is spoken of in that work, seven or eight kos
above Oudh, on the banks of the Sarju. It is remarkable
that in all the copies of Babar's life now known, the
pages that relate to his doings at Ajodhya 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 Ajodhya was then little other than a wilderness, it
must at least have possessed a fine temple in the
Janamasthan; 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-colored
or black stone, called by the natives kasauti (literally
touch-stone slate,) and carved with different devices. To my
thinking these more strongly resemble Buddhist pillars
than those 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." (emphasis
added)
1417. Next is the Gazetteer of the Province of Oudh Vol. I
(three volumes in one) published by Low Price Publications,
Delhi (first published in 1877-78) (reprinted in LPP 1993)
1568
(Book No. 11). Copy of pages No.6 and 7 of the aforesaid
Gazetteer have been filed as Papers No.107C1/25-26 i.e. Ex.7,
Suit-5 (Register 20, Page 51-53). The 'introduction' of the above
gazetteer has been written by Mr. W.C. Benett, C.S., Assistant
Commissioner. Therefore, to us it appears that the above
gazetteer was prepared by or under the supervision of Mr.
Benett who might have been assisted with a number of other
offers contributing write ups on different items. On page
XXXIX, chapter I, Introduction, it says:
The great Afghan captains whom that prince
defeated in Oudh have left no representatives, and the four
pages describing the events which attended his entry to
Ajodhya, where it is possible that the Hindu chiefs rallied
round the centre of their religion, are missing from all the
known copies of his memoirs. The only record remaining
is an ancient mosque, which preserves the invader's
name on the holiest spot of allthe birthplace of
Rama.
1418. Thereafter on page 6/7, under the headings The
Janamasthan and other temples and Babar's mosque it
mentions about the inscriptions at two places in the disputed
building to show the period of construction and the person by
whom it was constructed. It is again a repetition of what was
said in P. Carnegy's Historical Sketch (supra) and there is no
substantial difference therein:
The Janamasthan and other templesIt is locally
affirmed that at the Muhammadan conquest there were
three important Hindu shrines, with but few devotees
attached, at Ajodhya, which was then little other than a
wilderness. These were the Janamasthan the
1569
Swargaddwar mandir also known as Ram Darbar,
Treta-ke-Thakur.
On the first of these the Emperor Babar built the
mosque, which still bears his name, A.D. 1528. On the
second, Aurangzed did the same, A.D. 1658 to 1707; and
on the third, that sovereign or his predecessors built a
mosque, according to the well-known Muhammadan
principle of enforcing their religion on all those whom they
conquered.
Babar's mosqueAccording to Leyden's Memoirs of
Babar, that Emperor encamped at the junction of the Serwa
and Gogra rivers two or three kos east from Ajodhya on
the 28
th
March 1528, and there he halted seven or eight
days, settling the surrounding country. A well-known
hunting ground is spoken of in that work, seven or eight kos
above Oudh, on the banks of the Sarju. It is remarkable
that in all the copies of Babar's life now known, the pages
that relate to his doings at Ajodhya 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.
1419. "Report on the settlement of the Land Revenue of the
Fyzabad District", (Book No. 18) by A.F. Millett, C.S.,
Officiating Settlement Officer, published by North Western
Provinces and Oudh Government press, Allahabad in 1880
(hereinafter referred to as Millet's report, 1880). The book on
the very first page mentions that it contains partly, reports and
notes of P. Carnegy, late Settlement Officer, and J. Woodborn,
late Officiating Settlement Officer. Copies of the frontispiece as
1570
well as page No.218, 231, 235 and 236 have been filed as Paper
No.107C1/27-30A i.e. Ex.8, Suit-5 (Register Vol.20 Pages 55-
62).
1420. Here also reference of the disputed building, the period
of its construction by Emperor Babar is in the same language as
stated in P. Carnegy's Historical Sketch (supra) and there is no
substantial difference in the two except of some addition as is
evident from para 666 and 667, read as under:
666. 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 Ajudhya, which was then little other than a
wilderness. These were the Janmasthan, the
Sargadwar mandir, also known as Ram Darbar, and
Tareta-Ke-Thakur. On the first of these the Emperor
Baber 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
Ramchandar 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 as the place where Rama performed a great
sacrifice, and which he commemorated by setting up there
images of himself and Sita.
667. Babar's mosque.- According to Leyden's
Memoirs of Babar, that emperor encamped at the junction
of the Serwu and Gogra rivers, two or three kos east from
1571
Ajudhya, on the 28
th
March, 1528, and there he halted
seven or eight days, settling the surrounding country. A
well-known hunting-ground is spoken of in that work, seven
or eight kos above Oudh, on the banks of the Sarju. It is
remarkable that in all the copies of Babar's life now known
the pages that relate to his doings at Ajudhya 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.
1421. Next comes Barabanki: A gazetteer being Volume
XLVIII of the District Gazetteer of the United Provinces of
Agra and Oudh compiled and edited by H.R. Nevill, I.C.S.,
printed by F. Luker, Supdt., Government Press, United
Provinces, Allahabad in 1904 (hereinafter referred to as
Nevill's Barabanki Gazetteer 1904). Copy of pages No.168-
169 have been filed as Paper No.107C1/40-41; Ex.52, Suit-5.
He does not refer to any inscription etc. but while describing
Hindu Muslim clash said to have occurred in 1853, he observed:
The cause of the occurrence was one of the numerous
disputes that have sprung up from time to time between the
Hindu priests and the Musalmans of Ajodhya with regard
to the ground on which formerly stood the Janamasthan
temple, which was destroyed by Babar and replaced by a
mosque.
1422. In Fyzabad-a Gazetteer being Vol. XLIII of the
District Gazetteers of the United Provinces of Agra and
Oudh by H.R. Nevill published in 1905 (Book No. 4)
(hereinafter referred to as Fyzabad Gazetteer, 1905), page
173 refers to two inscriptions with the details of their place of
1572
installation:
"Ajodhya is pre-eminently a city of temples, and
apart from these there are but few points of interest in the
place. Not all of these places of worship are connected with
the Hindu religion. There are six Jain shrines which have
been already mentioned in Chapter III in connection with
Jainism in this district; and there are also the Musalman
mosques and tombs. It is locally affirmed that at the time
of the Musalman conquest there were three important
Hindu shrines at Ajodhya and little else. These were the
Janamasthan temple, the Swargaddwar, and the Treta-
ka-Thakur, and each was successively made the object
of attention of different Musalman rulers. The
Janamsthan was in Ramkot and marked the birthplace
of Rama. In 1528 A.D. Babar came to Ajodhya and
halted here for a week. He destroyed the ancient temple
and on its site built a mosque, still known as Babar'
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. Of the authenticity of
the inscriptions there can be no doubt, but no record of the
visit to Ajodhya is to be found in the Musalman historians.
It must have occurred about the time of his expedition to
Bihar." (emphasis added)
1573
The copy of the frontispiece and pages No.172, 173, 171,
175, 176 and 177 have been filed as paper No.107C1/42-48;
Ex.11, Suit-5; Register Vol.20 page 85-97.
1423. Next is Imperial Gazetteer of IndiaProvincial
SeriesUnited Provinces of Agra and Oudh-Vol. II (1908)
(Book No. 16) published by Superintendent of Government
Printing Calcutta, where at page 388-389 (Ex.10 Suit-5; Paper
No.107C1/37-39) it says:
At one corner of a vast mound known as Ramkot,
or the fort of Rama, is the holy spot where the hero was
born. Most of the enclosure is occupied by a mosque
built by Babar from the remains of an old temple, and in
the outer portion a small platform and shrine mark the
birthplace. Close by is a larger temple in which is shown
the cooking-place of Sita, the faithful wife of Rama. A lofty
temple stands on the bank of the Gogra at the place where
Lakshmana bathed; and Hanuman, king of the monkeys, is
worshipped in a large temple in the town, approached by
an immense flight of steps, which bears the name Hanuman
Garhi. Other noticeable temples built during the eighteenth
and nineteenth centuries are the Kanakbhawan, a fine
building erected by a Rani of Tikamgarh, the
Nageshwarnath temple, Darshan Singh's temple, and a
small marble temple built by the present Maharaja,
Ajodhya also contains a number of Jain temples, five of
which were built in the eighteenth century to mark the
birthplaces of the five heirarchs who are said to have been
born at Ajodhya. Besides the mosque of Babar, two
ruined mosques, built by Aurangzeb, stand on the sites
of celebrated Hindu shrines--the Swargadwara, where
1574
Rama's body was cremated, and the Treta-ka-Thakur,
where he sacrificed. (emphasis added)
1424. The above gazetteer only refers the name of Emperor
Babar that he constructed disputed building but neither the
period nor the basis of such information is mentioned.
1425. H.R. Nevill, I.C.S., published another gazetteer in
1928 under the title Fyzabad: A Gazetteer being Vol. XLIII
of the District Gazetteers of the United Provinces of Agra and
Oudh. Copy of the frontispiece and pages no.178, 179, 180
and 181 have been filed as Paper No.107C1/49-53 (Register 20,
pages 99-107). In the preface written by Nevill in February,
1905 he said that in the earlier gazetteer of the province of
Oudh, articles dealing with District Fyzabad and its various
other divisions, towns and villages were taken almost wholly
from the valuable and defuse Settlement Report of Mr. A.F.
Millett, which embodied a large proportion of the remarkable
notes and reports of Mr. Patrick Carnegy and the late Sri John
Woodburn. These contain much that is now obsolete and still
more of a purely traditional and speculative character. After
collecting fresh materiel he found the necessity of publication of
the said gazetteer. Chapter V deals with History. For the
present purpose we are confining to that part of the Gazetteer
which deals with the period of construction of the disputed
structure. On pages 151-152 the facts about the first Muslim
invasion of Oudh is mentioned as under:
The first Musalman invasion of Oudh was,
according to the popular tradition, that of Saiyid Salar
Masaud. The Mirat-i-Masaudi states that the youthful
invader went from Multan to Ajodhya, where, after taking
the city without a struggle, he remained hunting for some
1575
time and then set out for Delhi in 1030 A.D. The route
taken is remarkable and the story must be confused in some
manner. There is no mention of his passing through
Ajodhya on his march from Satrikh to Bahraich, where he
met his death; but popular legend steps in to fill the gap.
1426. The above narration is sought to be supported by
referring to the History of India-As told by its own
Historians by Sir H.M. Elliot and John Dowson, Vol. II, page
531. We have with us all the eight volumes of the book of Elliot
and Dowson which was first published in 1866-1877 and
reprinted in 1990, 1996, 2001 and 2008. In the appendix
Chapter III which starts from page 528 of Vol. II it appears that
Salar Masud son of Sultan Mahmud Subuktagin came to India
by crossing the river Indus. Having conquest Multan he led his
army against 'Ajudhan'. A few lines from page 530-531 of
Elliot and Dowson's book are as under:
The rainy season had now set in, so they remained
at Multan the next four months. After the rains, Mas'ud led
his army against Ajudhan. Although, in those days, that
place and its vicinity was thickly peopled, it was subdued
without a struggle. Mas'ud was delighted with the climate
of Ajudhan, and as, moreover, it was a good sporting
country, he remained there till the end of the following
rains, when he set off for Delhi.
1427. On page 530, footnote, the authors (Elliot and Dowson)
have said:
Ajudha or Ayodhya is the old form of the name
Oudh. The scene of Mas'ud's later exploits is laid in the
neighbourhood of Oudh.
1428. This narration claims to be an English translation of
1576
Mir-at-i-Masaudi written by Abdu-r Rahman Chishti. On page
513 the editor of the book History of India has mentioned
about the author and the book Mir-at-i-Masaudi as well the
following facts in order to enhance the degree of reliability on
the aforesaid work in respect to life story of Salar Masaud:
This is professedly a life of Mas'ud the Ghaznivide,
and finds an appropriate place here after the story books.
The author of this extraordinary work was by name' Abdu-r
Rahman Chirsti. He explains the motives which impelled
him to its composition, and the sources of his information
after the following manner: The history of the King of
Martyrs, Salar Mas'ud, the facts of his birth, of his coming
to Hindustan, and of his martyrdom, are told by different
men in various ways, which have not found a place in any
historical work of repute. The writer had long endeavoured
to ascertain the real facts; and, after much research he
obtained possession of an old book written by Mulla
Muhammad Ghaznawi. This man was servant of Sultan
Mahmud Subuktigin. He was also in the service of Salar
Sahu, and of the Prince of Martyrs, whom he survived. The
writer perused this old book from beginning to end with the
greatest pleasure, and the doubts which he had entertained
were dispelled. The book was very long, it entered into
details about the wars of Sultan Mahmud, and Salar Sahu,
mentioning incidentally here and there the King of
Martyrs, and closing with an account of his martyrdom.
Several of the beloved friends and attendants of the Martyr
Sultan, in the abodes of the blessed, have urged the writer
to the task which he has undertaken; but no one has made
the same demand on behalf of Sultan Mahmud. It therefore
1577
seemed expedient to him that he should select and commit
to writing all that related to the Martyr King. He would
not, however, have been able to succeed, even in this,
without the directions he graciously received from the
spirit of the departed. When he had set about his selection,
and had engaged earnestly in the work, one night the spirit
of the deceased martyr appeared to the writer in a vision,
and most condescendingly expressed, with his blessed
tongue, his approval of the work. Being thus graciously
honoured, the author humbly replied that he had begun the
work, and begged for assistance wherever his narration
might be too high, or too low, too short, or too long. The
spirit, with great affability, directed the author to write,
and that he would attend to him and assist him. The present
work is the result, to which the author has given the name
Mir-at-i Mas'udi. May the reader of it also be (mas'ud)
blessed. This is the author's prayer. The biography of the
King of Martyrs having been derived from the aforesaid
history, is here related in five chapters (dastans). Sundry
incidents, and miraculous statements, which have been
found in trustworthy books, have been selected, and, after
being verified by oral communications with the author's
spiritual visitors, have been inserted in the present work.
1429. The editor of History of India thereafter has termed
the book as a historical romance and says that the book mainly
seems to rest on the last word Tawarikh-i-Mahmudi of Mulla
Muhammad Ghaznawi but at places it is difficult to rely on the
narration. We do not find it expedient to go further except to
point out that in all the subsequent Gazetteers, this history of
invasion of Ayodhya by Syed Salar Masud has been followed
1578
referring to Elliot and Dowson's History of India Vol. II page
530/531 where the learned authors got confused by identifying
Ajudhan as Ayodhya though the two are different places.
Ajudhan was a place in Punjab while Ayodhay is much
far therefrom. This mistake unfortunately has continued in a lot
of History books also which have been published until recently.
1430. Dr. T.P. Verma, Historian and author of the book
Ayodhya Ka Itihas Evam Puratatva (Exhibit 3-Suit 5)
(Book No. 141) who has also written the same fact at page
110/111 in his above titled book, in his cross examination has
admitted this error. He admits that Salar Masud never came
to Ayodhya and he has wrongly mentioned the same in his
book as is evident from the following:
; in | -iii - r l | ini| - i i -
- -ii | ii| r| rin|| ii - l lii|
ii l-- - osz ; -| | ii - i r ri n | - li
i i | i| -l- r| -l- i|, i i| -l-
r| in| i|| ...s| / | ini| | - ii | nii
iin i iri - ri n| i|, i i | ii | r|
rin|| - ii i- i i ; ir r| ii| ... l-in
- | - o z iii i- l r n r r| li ni r
l ii - - ii i ii| ( s/ss)
There is least probability that Muslim populace
may have existed in Ayodhya in the 11
th
century. Salar
Masoods army officer Khwaja Miththe may have visited
Ayodhya around 1032 AD. In my view, the oldest mosque
in Ayodhya was the same mosque, which was called Babri
mosque ... Ayodhya was considered to be a major city of
India between 13
th
to 17
th
century, which was bigger than
Ayodhya of today. At that time there was no city named
Faizabad. ... The Mirate-Masoodi contains names of 10-12
1579
kings, but it has not been given as to who was the king at
that time. (E.T.C)
nir | -n i i oi oo r s rs
l,n| i- i i ri l r i l ;
ni (i n ii i i) - i ii ii, i nn r ,r|
r| r , i i i ; i -|in- | - r| l-ni r|
-|in- | - ni - i i | in r| n| r, l
r ni, i n i i i r r in r| r| r| ni
(nli) ii i ii | | - l-in -ii i i- r
i i i - ni r | l| | n -i ii ro -|
li rin|| .... i - i ni- ni ii r i nli
l~ ; - i ni- - i i i r | ( sssro)
After looking at second column of page 158 of his
book, exhibit O.O.S 5-3, the witness stated that the
sentence reading as prior to this he had camped at
Satrakh (Saket or Ayodhya) , is wrong and is not correct
and no such reference is found in Mirat-e-masoodi. The
Mirat-e-masoodi mentions about camping at Satrakh, but it
is not correct that this Satrakh is Saket or Ayodhya.
Satrakh (Satrikh) is a place situated between Faizabad and
Barabanki, which falls in Awadh area and whose distance
would be more than 50 miles from the present Ayodhya. ...
By area, I neither mean Ayodhya nor Satrikh and instead I
mean the complete Awadh zone. (E.T.C)
-|in - | - ii - iii i | in r|
r| n| r r - -|i i r l ; in | -iii
i| i| | r ; r l li | l| -i| - i l- -l
i iln r i; ri i l i r| - ii| r ni i r l
r -i n | - ii - l lii| ii l-- - |
ri | in r| r| ( sro)
The Mirat-e-masoodi nowhere mentions about
1580
Salar Masood visiting Ayodhya. I have admitted this, but
this probability still exists that certain group of his soldier
may have caused damage to Janmbhumi temple because I
have stated a short while ago that the existence of the
grave of Khwaja Miththe, an army officer of Salar
Masood, has been claimed at Hanumangarhi. (E.T.C)
i i l -- - | i i - ri i i
i i - l l i i | ri | i n
-| i n - | - r| i n| r | srr - lri ilin
r -i n | i ;lnri i- -n l i -- l r r,
; in i rii | -n - li r i ri r l ii
l-- - | in i ; ii ni ii ;| iii -
ii - - ii i -i | in i -li
ilnn -n i - lii r | - | -n i ioi oo
rs - -- lr | -n c r -i n | ;lnri i rii
r| li r i r| - | -n - ii l-- - ri
i rii li r| ( sr)
The Mirat-e-masoodi neither mentions about
existence of the grave of Khwaja Miththe at Ayodhya nor
about he being an army officer of Salaar Masood. This fact
has been referred in the book titled Hanumangarhi Ka
Itihas, published in 1955 from Bihar and written by
Amartya Singh, and it has been mentioned that the fact of
Khwaja Miththes grave had also been made an issue. On
this basis, I have written about Ayodhyas invasion by the
army of Masood and the destruction of its temples. In my
book, exhibit O.O.S 5-3, I have neither referred to Amartya
Singhs book Hanumangarhi Ka Itihas nor have I
referred about existence of grave of Khwaja
Miththe.(E.T.C)
- ri l -|in- | i ;lnri | -n i i
1581
r| in r | ; lr--i l i -i i lnril i ri ni
r l- n ~ii i i ~ i li ni r , i
;l- i r| r | ( sr)
Stated on his own that the Mirat-e-masoodi is not
recognized as a history book. It is said to be historical
romance or historical novel, in which facts and
imaginations have been used liberally, which is so claimed
by Elliot and Dawson. (E.T.C)
; - - o r | | n| l-i| - ;
- | nr r-n r| r | ... nir | -n - /c
- o z | | n| l-i| i- iii ii -
i -i nin in ii i i i ri l -
; i | r-n r| r | ( srrsrc)
At present, I do not completely agree with the
comment contained below serial no.5 of this page. . . . . . . .
. . . . .After looking at part of the first sentence of the
comment under serial no.21 of page 176 of his book
reading as after about seven decades of invasion of Salar
Masood, the witness stated that now I do not agree with
this as well. (E.T.C)
1431. Now coming back to Fyzabad Gazetteer 1928
(supra) page 155, it mentions:
In 1528 Babar built the mosque at Ajudhya on the
traditional spot where Rama was born.
1432. Again in the later part a directory is appended and
deals with Ayodhya at page 179/180, it says:
It is locally affirmed that at the time of the
Musalman conquest there were three important Hindu
shrines at Ajodhya and little else. There were the
Janamsthan temple, the Swargaddwar and the Treta-ka-
Thakur, and each was successively made the object of
1582
attention of different Musalman rulers. The Janamasthan
was in Ramkot and marked the birthplace of Rama. In
1528 A.D. Babar came to Ajodhya 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
Hiji. Of the authenticity of the inscriptions there can be
no doubt, but no record of the visit to Ahodhya is to be
found in the Musalman historians. It must have occurred
about the time of his expedition to Bihar.
1433. Here also Nevill in the footnote has placed reliance
on Elliot and Dowson's History of India Vol. 4 page 283
which is english translation of Tuzak-I Babari which is said to
be Leyden and Erskine's translation as per the preface of the
book. We have gone through the entire page 283 of the said
book but do not find any fact mentioned about the construction
of disputed site or building mentioned therein.
1434. After independence under the authority of
Government of Uttar Pradesh (Revenue Department) District
Gazetteers of Uttar Pradesh in the revised form were published.
The "Uttar Pradesh District Gazetteers-Faizabad" by Smt.
Esha Basanti Joshi (Book No. 17) was published in 1960 printed
at the Indian Press (Private) Ltd., Allahabad. Copy of the
1583
frontispiece and pages No.34, 36, 46, 47, 352 and 354 have been
filed as paper No.107C1/54-61 i.e. Ex.13, Suit-5 (Register 20,
pages 109-123). With reference to the construction of disputed
building by Babar and the period it says:
The Janmasthan was in Ramkot and marked the
birthplace of Rama. It seems that in 1528 A.D. Babur
visited Ayodhya and under his orders this ancient temple
was destroyed and on the site was built what came to be
known as Babur's mosque. The material of the old temple
was largely employed in building the mosque and a few of
the original columns are still in good preservations; they
are of cloe grained black stone (kasauti) bearing various
Hindu bas-reliefs (see Plate I), the outer beam of the main
structure being of sandal wood. The height of the columns
is seven to eight feet, the shape of the base, the middle
section and the capital is square, the rest being round or
octagonal. There are two inscriptions in Persian, one on
the outside and the other on the pulpit bearing the date
935 Hijri.
1435. Broadly, we find and in fact it is even admitted by Sri
Jilani that the sole basis for determining the period of
construction of the disputed building and to co-relate it with
Emperor Babar is/are the inscription(s) said to be installed in the
disputed building referred to in certain Gazetteers etc. The text
of these inscriptions have been given in different books which
needs threadbare scrutiny to find out whether the disputed
building was constructed in 1528 by or under the order of
Emperor Babar is correct or not.
1436. The first document which has reproduced the text of
said inscription(s) is the publication of Archaeological Survey
1584
of India titled as The Sharqi Architecture of Jaunpur; with
notes on Zafarabad, Sahet-Mahet and Other Places in the
North-Western Provinces and Oudh by A. Fuhrer; Original
edition 1889 (reprinted in 1994) by the Director General
Archaeological Survey of India, New Delhi (hereinafter referred
to as Fuhrer's Report). This is edited by Z.A.Desai. Chapter-
X thereof refers to the inscriptions i.e., no. XL; XLI; XLII found
at Ayodhya and is supported with the inscriptions found by
Fuhrer at Ayodhya. It says that there were three inscriptions
wherefrom he (Fuhrer) formed the opinion that the said building
was constructed at Ayodhya in A.H. 930, or A.D. 1523, by Mir
Khan, on the very spot where the old temple Janam Asthanam
of Ramachandra was standing.
1437. The inscription No. XL was over the central mihrab,
written in Arabic characters and gives twice the Kalimah as
under:

There is no god but Allah, Muhammad is His Prophet.
(English Translation by the Author)
1438. Inscription No. XLI was found on the mimbar (right
hand side of the disputed building) written in Persian poetry,
the metre being Ramal, in six lines:






. -ii i i ri
ii l i ii n ;i
z. li i iii i
1585
-| in lii -| ii
s. -i r-ii i ili
i irli -|i -i
(Hindi Transliteration)
. l - i- i iii i iii -r i
ii|
z. i i iii ii iii i -| ii |
s. i i -ii i i| i n i i - i-
lln r |
(Hindi Translation)
1. By order of Babar, the kind of the world,
2. This firmament-like, lofty,
3. Strong building was erected.
4. By the auspicious noble Mir Khan.
5. May ever remain such a foundation,
6. And such a king of the world.
(English Translation by the Author)
1439. Inscription XLII was found above the entrance door
of the disputed building written in Persian poetry, the metre
being Ramal in ten lines. He further says that some characters of
the second and whole third lines are completely defaced:










1586

ll-~ilr r-il r|-

. i- i l................................
iil - i i|
z. ...................................................
.....................................................
s. i iirir -ir |-
-| i l-i ii-i|
. i r n -| - -
l iii i ni n i|
r. li -r | ni|i - -
r | lrn i|
c. i ii r ri i iir ii
li n ni n l ni|
/. ii ri i n i
i nn| i-i|
s. - i| nn n| - i
| -l- lri r-n i|
ri lnn -ni|i l n -l- i n r| ;
nr ~ir ni| - r
(Hindi Transliteration by Court)
. r-n| i- i ..................... -l-nni i - ,ii
- ni r|
z. ................................
s. l i i l, - i- li l-n- i| l ni
i iri r|
. iir| i i lii i r i i ii (|| iii
| ili) i i iii i ,n| n (|| iii |
ili) r|
r. i- ; -r (nri ii n -l-) iii | i i l nl i
sso l r| n| n i|
c. ! i i i iiir ii i ni, lri, ii i
1587
| i| r
/. i - i- i - li i | ii ni r i
ni l-n| r
s. ii i iri i i i ii i ; -l- l
i iii i ii r|
lnli i r lni i -l- i li l n i- nr ~ir ni|
- i ll ,ii lii ni|
(Hindi Translation by Court)
1. In the name of God, the merciful, the element.
2. In the name of him who ...; may God perpetually
keep him in the world.
3. ........
4. Such a sovereign who is famous in the world, and in
person of delight for the world.
5. In his presence one of the grandees who is another
king of Turkey and China.
6. Laid this religious foundation in the auspicious
Hijra 930.
7. O God ! May always remain the crown, throne and
life with the king.
8. May Babar always pour the flowers of happiness;
may remain successful.
9. His counsellor and minister who is the founder of
this fort masjid.
10. This poetry, giving the date and eulogy, was written
by the lazy writer and poor servant Fath-allah-Ghorl,
composer.
(English Translation by Author)
1440. After referring the aforesaid inscriptions and text,
Fuhrer on page 68, Chapter X has made the following
observations:
1588
The old temple of Ramachandra at Janamasthanam must
have been a very fine one, for may of its columns have been
used by the Musalmans in the construction of Babar's
masjid. These are of strong, close-grained, dark-coloured
or black stone, called by the natives kasauti, touch-stone
slate, and carved with different devices. They are from
seven to eight feet long, square at the base, centre and
capital, and round or octagonal intermediately.
1441. The second extremely relied work is "Babur-
Nama" by A.S. Beveridge (first published in 1921) (reprinted
in LPP 1989, 1997, 2000), two volumes in a single bound book
(Book No. 6). Besides the book itself, extract of some of the
pages of the said book (of different editions) have also been
filed by the parties which are exhibits as under:
(i) Paper No. 78 A-2/ 21-24 (Ex. J5, Suit-4) (Register
Volume 13, page 39-45)
(ii) Paper No. 87 B-1/ 7 (Ex. J8, Suit-4)
(iii) Paper No. 87 B-1/ 8 (Ex. J9, Suit-4)
(iv) Paper No. C2-163/ 1-2 (Ex. J13, Suit-4) (Register
Vol. 34 page no. 73-74)
(v) Paper No. 43A1/ 22-24 (Ex. T3, Suit-4) (Register
Vol. 18 page 45-49)
(vi) Paper No. C2-156/ 1-5 (Ex. Q2, Suit-5) (Register
Vol. 34 page 37-45)
(vii) Paper No. 107C1/ 71-74 (Ex.16, Suit-5) (Register
20 page 145-159)
1442. Appendix U at page LXXVII, LXXVIII and LXXIX
refers to two such inscriptions, one inside the mosque and
another outside the mosque. Photocopy of the aforesaid pages of
Appendix U have been placed on record as Exhibit T3 (Suit-4)
1589
(Paper No. 43A-1/22-24), (Register 18 page 45-49). It appears
from Appendix U that she got the text of the two inscriptions
through the Deputy Commissioner of Fyzabad on an enquiry
made by her husband about two inscriptions mentioned by
several Gazetteers said to be existed on the Babar mosque at
Ayodhya. However, at the bottom, note 2, she says that while
reproducing the text a few slight changes in the turm of
expression have been made for clearness sake. The text of the
inscription inside the mosque as quoted in Babar-Nama by
A.S. Beveridge is as under:






() - iir i l i, li;-n iii n
- i| |
(z) li -rn li i -| in lii -| i |
(s) i i| i li;i i i n n- i
i|
(Hindi Transliteration by Court)
. - i- i iii i li i | ;-in r i
iii -r i l-| r |
z. iii i -| i | lni n ; -ii |
iii lii i||
s. ; iii i i l i i | (iin ii; ) r| n -i
r i -- r i i i | (r ii ii-i i|
r )
(Hindi Translation by Court)
(1) By the command of the Emperor Babur whose justice
1590
is an edifice reaching up to the very height of the heavens.
(2) The good-hearted Mir Baqi built this alighting place
of angles.
(3) It will remain an everlasting bounty, and (hence) the
date of its erection became manifest from my words: It will
remain an everlasting bounty. (E.T.C.)
1443. The text of the inscription outside the mosque
quoted in Beveridge's "Babar-Nama" is as under:



. i- il ii r-n
l iil -i i- i-i|
z. - -ni i nii
l lii ri|
s. ii ri i
l i i n|n| i-i|
(Hindi Transliteration)
. i- i -ri l,-i r i i i i
--i -ii | - n r
z. | i i i -i r-- - -ni ~~iri lr ~-
ri i i i i li i r|
s. i i r i i i - i r l r
- i- r |
(Hindi Translation)
1. In the name of One who is Great (and) Wise (and) who
is Creator of the whole world and is free from the bondage
of space.
2. After His praise, peace and blessings be on Prophet
Muhammad, who is the head of all the Prophets in both the
worlds.
1591
3. In the world, it is widely talked about Qalandar Babur
that he is a successful emperor. (E.T.C.)
1444. With respect to the second inscription that is outside
the mosque, the Beveridge said that it is incomplete.
1445. The third set of text of inscription we are confronted
with, is that published in "Epigraphia Indica-Arabic &
Persian Supplement (In continuation of Epigraphia Indo-
Moslemica) 1964 and 1965" reprinted 1987 published by the
Director General Archaeological Survey of India, New Delhi.
On page 49, the chapter begins with the heading Inscriptions of
Emperor Babur said to be written by the Late Maulvi M.
Ashraf Husain and edited by Z.A.Desai. Editor's note in the
aforesaid Chapter is of some importance:
A rough draft of this article by the author, who was my
predecessor, was found among sundry papers in my office.
At the time of his retirement in 1953, he had left a note
saying that it might be published after revision by his
successor. Consequently, the same is published here after
incorporation of fresh material and references and also,
extensive revision and editing. The readings have been also
checked, corrected and supplemented with the help of my
colleague, Mr. S.A.Rahim, Epigraphical Assistant,-Editor.
1446. On page 58 under sub-chapter VIII-X, "Inscriptions
Dated A.H. 935, from Ajodhya", the author has referred to three
inscriptions said to have existed at Babur's mosque. The author's
comments about those inscriptions are:
These three records are from Ajyodhya, in Fyzabad
district of Uttar Pradesh. Ajodhya, called Ayodhya in
ancient works, is a place of great antiquity. It was the
earliest capital of the kingdom of Kosala in the later Vedic
1592
period, which may be traced down to 600 B.C. In the fifth
and sixth centuries after Christ, the Gupta dynasty ruled
over it and called it Saket, by which name it is also known
in the Ramayana. From the seventh century onwards, a
period of neglect ensued and according to Muslim
historians, parties enjoyed hunting in its vicinity.
The chief fame of Ajodhya lies in its being the birth-
place of Sri Rama, the deified son of Raja Dasaratha and
hero of the Ramayana. At the Muslim conquest, three
important temples are reported to have existed here, viz.
Janmasthana or birth-place Temple, the Treta-ki-Thakur or
the place where Sri Rama performed a great sacrifice in
commemoration of which he set up images of himself and
his wife Sita, and the Svargadvaram or Rama-Darbar,
which is believed to be the place where he was cremated.
The second and third are popularly believed to have been
pulled down by Aurangzeb, and on the site of the first the
present Baburi mosque is stated to have been built. The
supposition is apparently anachronistic inasmuch as
Aurangzeb was born about a century after A.H. 935, the
date of Babur's record, and so the demolition could not
have taken place so late.
The Baburi-Masjid, which commands a picturesque
view from the riverside, was constructed according to
A.Fuhrer in A.H. 930 (1523-24 A.D.) but his chronology,
based upon incorrect readings of inscriptions supplied to
him, is erroneous. Babur defeated Ibrahim Lodi only in
A.H. 933 (1526 A.D.), and moreover, the year of
construction, recorded in two of the three inscriptions
studied below, is clearly A.H. 935 (1528-29 A.D.). Again, it
1593
was not built by Mir Khan as stated by him. The order for
building the mosque seems to have been issued during
Babur's stay at Ajodhya in A.H. 934 (1527-28 A.D.), but
no mention of its completion is made in the Babur Nama.
However, it may be remembered that his diary for the year
A.H. 934 (1527-28 A.D.) breaks off abruptly, and throws
the reader into the dark in regard to the account of Oudh.
The mosque consists of three compartments, each
crowned by a dome. The squinch-arches and stalactite
pendentives turn each aisle of the prayer-chamber into a
squarish room. The drums of the domes inside were
originally relieved by arched recesses, and the central
dome was embellished with ornamental incised plaster
discs, but the present domes were only reconstructed in
the thirties of this century and are devoid of any original
features.
The mosque contains a number of inscriptions. On
the eastern facade is a chhajja, below which appears a
Quranic text and above, an inscription in Persian verse.
On the central mihrab are carved religious texts such as
the Kalima (First Creed), etc. On the southern face of the
pulpit was previously fixed a stone slab bearing a Persian
inscription in verse. There was also another inscription in
Persian verse built up into the right hand side wall of the
pulpit. Of these, the last-mentioned two epigraphs have
disappeared. They were reportedly destroyed in the
communal vandalism in 1934 A.D., but luckily, I
managed to secure an inked rubbing of one of them
from Sayyid Badru'l Hasan of Fyzabad. The present
inscription, restored by the Muslim community, is not only
1594
in inlaid Nasta'liq characters, but is also slightly different
from the original, owing perhaps to the incompetence of
the restorers in deciphering it properly.
The readings and translations of the historical
epigraphs mentioned above, except in the case of one, were
published by Fuhrer and Mrs. Beveridge, but their
readings are so incomplete, inaccurate and different from
the text that their inclusion in this article is not only
desirable but also imperative.
The epigraph studied below was inscribed on a slab
of stone measuring about 68 by 48 cm., which was built up
into the southern side of the pulpit of the mosque, but is
now lost, as stated above. It is edited here from the
estampage obtained from Sayyid Badru'l Hasan of
Fyzabad. Its three-line text consists of six verses in
Persian, inscribed in ordinary Naskh characters within
floral borders. It records the construction of the mosque by
Mir Baqi under orders from emperor Babur and gives the
year A.H. 935 (1528-29 A.D.) in a chronogram.
1447. The inscriptions found at the southern side of the
pulpit of the mosque is said to be found inscribed on a slab of
stone measuring about 68 by 48 cm. He says that the original is
lost. The quoted inscription is one edited from the estampage
obtained from Sayyid Badru'l Hasan of Fyzabad. Further
explanation at note 4 at the bottom at page 59 given by author is
as under:
It may be argued that since this epigraph is not quoted in
Fuhrer's SAJ, the slab had already disappeared before he
wrote. But that is not the case, since the tablet was found
there in 1906-07 A.D. by Maulavi M. Shuhaib of the office
1595
of the Archaeological Surveyor, Northern Circle, Agra
(Annual Progress Report of the Office of the
Archaeological Surveyor, Northern Circle, Agra, for 1906-
07.Appendix-D
1448. The first inscription's text which author has
mentioned at plate XVII (b) is as under:



() - iir i l i,
li; -n iii n - i| |
(z) li r ; -rn li i
-| in lii -| i|
(s) i i | i li;i,
i i n n- i i|
(Hindi Transliteration)
. - i- i iii i li i | ;-in r i
iii -r i l-| r |
z. iii i -| i | lni n -ii | iii
lii i||
s. r i i| ( r ii ii ii-i) r i
iii i i -- r i - ri i i ||
(Hindi Transliteration)
(1) By the order of king Babur whose justice is an
edifice, meeting the palace of the sky (i.e. as high as the
sky).
(2) This descending place of the angels was built by the
fortunate noble Mir Baqi.
(3) It will remain an everlasting bounty, and (hence) the
date of its erection became manifest from my words: It will
remain an everlasting bounty.
1596
(English Translation by Author)
1449. The Fuhrers inscription no. XLI which he mentions
that the same was found inside the mosque on the mimbar (right
hand side of the disputed building) has been turmed as second
inscription by Maulvi F. Ashraf Hussain. It consists of three
couplets arranged in six lines. He (Hussain) clearly admits non
existence of the said inscription by observing the epigraphical
Tablet which was built up into right hand side wall of the pulpit,
does not exist now, and, therefore, the text of the inscription is
quoted here from Furhers work, for the same reason, its
illustration could not be given. Sri Husain/Desai however, did
not agree to the reading of the inscription by Fuhrer and
observed that Furhers reading does not appear free from
mistakes.
1450. About the third inscription, on page 60/61 of the
book, the author has given narration as follows:
The third record of Babur in the Ajodhya mosque,
comprising a fragment of eight Persian verses of mediocre
quality and a colophon, appears over the central entrances
to the prayer-chamber above the chajja. The four-line text
is executed in fairly good Naskh characters in relief amidst
floral borders, on a slab measuring about 2 m. by 55 cm.
The text is fairly well preserved, and Fuhrer must have
been misinformed to affirm that 'a few characters of the
second and the whole third lines are completely defaced'.
The purport of the record is the same as that of the
previous epigraphs, but here an additional edifice is also
mentioned : In verse six, in line three, a fort-wall (hisar) is
said to have been built along with the mosque in A.H. 935
(1528-29 A.D.), by Mir Baqu, who is here called the second
1597
Asaf and councillor of the state.
1451. The text of the third inscription is as under :











. - -ni i ii
l li i ri|
z. ii ri i
l i i n|n| i-i|
s. i i r n li ln ni
-| i l-i i-i|
. i rn -| - -
l i-i -| i | i- i|
r. - i| nn n| - i
| -l-i lri r-n i|
c. i ii ri i;i ii
l li n ni ni l ni|
/. li r | ni| i --
l r | lii|
n--n ri -nir| in -r l n ~ir rir i-n
; r| nr ~ir -ir-- ni||
(Hindi Transliteration)
. (i i) | ii i -ir-- - -ni ~i~iri lr
1598
~- ri i li i i li - r |
z. i i i i i - r l r - i- r |
s. r i - i- r l l ini ii l in li,
iii -i | i i| - li|
. iir| i i lii i r li i- -| i| r
l,n| il (il ili ini r)
r. ii i iri i i i ii i ; -l-
i l i iii i ii r |
c. ! i i i - i ni, l ri, ii i | i |
r |
/. ; n ; ;-in | li | i i lnli | lii| ssr
r |
(Hindi Translation)
(1) In the name of Allah, the Beneficent, the Merciful.
And in Him is my trust.
(2) In the name of One who is Wise, Great (and) Creator
of all the universe (and) is spaceless.
After His praise, blessings be upon the Chosen one (i.e. the
Prophet), who is the head of prophets and best in the
world.
The Qalandar-like (i.e. truthful) Babur has become
celebrated (lit. a story) in the world, since (in his time) the
world has achieved prosperity.
(3) (He is) such (an emperor) as has embraced (i.e.
conquered) all the seven climes of the world in the manner
of the sky.
In his court, there was a magnificent noble, named Mir
Baqi the second Asaf, councillor of his government and
administrator of his kingdom, who is the founder of this
mosque and fort-wall.
(4) O God, may he live for ever in this world, with fortune
1599
and life and crown and throne. The time of the building is
this auspicious date, of which the indication is nine
hundred (and) thirty five (A.H. 935=1528-29 A.D.).
Completed was this praise of God, of Prophet and of
king. May Allah illumine his proof. Written by the weak
writer and humble creature, Eathu'llah Muhammad
Ghori.
(English Translation by Author)
1452. PW-15, Sushil Srivastava in his book The
Disputed Mosque-A Historical Enquiry published in 1991 by
Vistaar Publications, New Delhi has also given text of two
inscriptions at page 86 of the book which are as under:
(A) Inscription above the pulpit inside the mosque






- iir i l i,
li-n ni ii n - i||
li ; - rn li ,
-| in lii -| i||
i i|! i i lii,
i i l n n- i i||
(Hindi Transliteration by Author)
iir i iii i li i,
| -in r i iii | +i; n r n| r|
l-i i ii ; llni n -ii i ,
i iiii| -|, -| i| ,
i i| (r ii n n r) i l-i i i i
1600
r.
r -- ri ni i - r l r ii n n r |
(Hindi Transliteration by Author)
(1) By the order of king Babar whose justice is an edifice
meeting the pace of sky (i.e. as high as the sky).
(2) this descending place of the angels was built by the
fortunate noble Mir Baqi.
(3) it will remain an everlasting bounty and (hence) the
date of its erection became manifest from my words: it will
remain an everlasting bounty. (English Translation by
Author)
(B) Inscription at the entrance of the mosque i.e. the
outer inscription






i- il ii r-n
l iil -i i- i-i|
- -ni i nii
l li i ri|
ii ri i
l i i n|n| i-i|
(Hindi Transliteration)
. i- i -ri l,-i r i i i i
-i -ii | - n r
z. | i i i -i r-- - -ni ~~iri lr ~-
ri i i i ri - li i r |
s. i i i i - r i i - - i- r i
1601
r |
(Hindi Translation)
1. In the name of One who is Great (and) Wise (and) who
is Creator of the whole world and is free from the bondage
of space.
2. After His praise, peace and blessings be on Prophet
Muhammad, who is the head of all the Prophets in both the
worlds.
3. The world has the house of Qalandar Babur, who has
been a successful emperor in the world. (E.T.C.)
1453. The text of two inscriptions has also been given in
Appendix Gha on page 659 and 660, Mugalkalin Bharat-
Babar (1526-1530 AD)" translated by Syed Athar Abbas Rizvi
(first published in 1960 and in 2010 published for first time by
Rajkamal Prakashan Pvt. Ltd., New Delhi). The photocopy of
Appendix D (Parishisht Gha) page 659 and 660 of the above
book along with its title page has been filed as Exhibit 91 (Suit-
4) (Register 16, Pages 164-166) and the same reads as under:

(A)





- iir i l i,
li -n ni ii n - i||
li ; - rn li ,
-| in lii -| i||
i i|! i i lii,
i i l n n- i i||
1602
(Hindi Transliteration by Author)
iir i iii i li i,
| -in r i iii | +i; n r n| r|
l-i i ii ; llni n -ii i ,
i iiii| -|, -| i| ,
i i| (r ii n n r) i l-i i i i
r.
r -- ri ni i - r l r ii n n r |
(Hindi Translation by Author)
(1) By the order of king Babar whose justice is an edifice
meeting the pace of sky (i.e. as high as the sky).
(2) This descending place of the angels was built by the
fortunate noble Mir Baqi.
(3)It will remain an everlasting bounty and (hence) the date
of its erection became manifest from my words: it will
remain an everlasting bounty. (E.T.C.)
(B)





i- il ii r-n ,
l iil -i i- i -i||
- -ni i ni;i,
l l-i i ri||
ii ri i ,
l i i nn| i-i||
(Hindi Transliteration by Author)
i- i l -ri ni| r ,
i --n i i -i i li i i r|
1603
| -n ln in - -ni ,
i i i i i li i r|
i - i r l i ,
i - ni in r ; |
(Hindi Translation by Author)
In His name who is all wisdom,
Who is creator of the entire universe and who is abodeless.
After His praise peace be on Prophet Mohammad,
Who is the head of all the Prophets in both the worlds.
It is the talk of the world that Qalandar Babur,
Attained success with the movement of the time-wheel.
(E.T.C.)
1454. In another book titled as Babar by Dr. Radhey
Shyam, first published in 1978 by Janaki Prakashan Allahabad,
the text of three inscriptions at the building in dispute in
Appendix VI, Item VIII-X at pages 505 and 506 is given as
under :
(A)





- iir i l i,
li-n i ii n - i||
li ; - rn li ,
-| in lii -| i||
i i|! i i lii,
i i l n n- i i||
(Hindi Transliteration)
iir i iii i li i,
1604
| -in r i iii | +i; n r n| r|
l-i i ii ; llni n -ii i ,
i iiii| -|, -| i| ,
i i| (r ii n n r) i l-i i i i
r.
r -- ri ni i - r l r ii n n r |
(Hindi Translation)
(1) By the order of king Babar whose justice is an edifice
meeting the pace of sky (i.e. as high as the sky).
(2) This descending place of the angels was built by the
fortunate noble Mir Baqi.
(3) It will remain an everlasting bounty and (hence) the
date of its erection became manifest from my words: it will
remain an everlasting bounty.
(English Translation by Author)
(B)





. -ii i i ri
i l i ii n ;i
z. li i ; iii i
-| in lii -| ii
s. -i r r-ii | ili
i irli -|i -i
(Hindi Transliteration)
. l - i- i iii i iii -r -i|
z. ; i i iii ii iii i -| ii |
s. i i -ii i | i n i i - i- lln
1605
r |
(Hindi Translation)
(1) Under the commands of Babar, emperor of the world,
a sky-like palace
(2) (that is to say) this strong house of God was founded by
the fortunate noble Nawab Mir Khan
(3)May ever remain such a founder of edifice, and such a
king of the world and age. (E.T.C)
(C)










() ll-~ilr r-il r|- l n|
(z) i- il + ii-n l iil -i i-
i-i|
- -ni i ii l li i ri|
ii ri i l i i n|n| i-i|
(s) i i r n li ln ni -| i l-i
i-i|
i r n -| - - l i-i -| i| i- i|
- i| nn n| - i | -l-i lri r-n i|
() i ii ri i;i ii l li n ni ni lni|
li r | ni|i -- l r | lii|
n--n ri -nir| in -r l n ~ir rir i-n
1606
;
r| r ~ir -ir-- ni||
(Hindi Transliteration)
~ir i- i -n ii- i ii r , i
ii
. i- i -ri l,-i r i i i i -i
-ii | - n r
z. | i i i -i r-- - -ni ~~iri lr ~-
ri i li i i i - ln r |
s. i i i i i - i r l r
- i- r i r |
. r i - i- r l l ini ii l in li,
| i i| iii -i - li|
r. iir| i i lii i r li i- -| i|
l,n| il r
c. ii i iri i i i ii i ; -l-
i l i liili ii r|
/. ! i i i - i ni, l ri, ii i | i |
r |
s. ; n ; ;-in | li | i i lnli | lii| ssr
r |
(Hindi Translation)
In the name of Allah, the Beneficent, the merciful,
and in Him is my trust.
(1) In the name of One who is Wise, Great and Creator of
all the universe and is spaceless.
(2) After he praise, blessing be upon the Choosen one (i.e.
the Prophet) who is the head of the Prophets and best in
the world.
(3) The Qalandar like Babar has attained fame in the
whole world to the effect that he has been a successful
1607
emperor.
(4) He is such an emperor as has conquered all the seven
climes of the world and also captured the earth as in case
of sky.
(5) In that royal court there was a magnificent noble
named Mir Baqi, the second Asaf.
(6) (He is) councillor of the Government and administrator
of his kingdom, who is the founder of this mosque and fort-
wall.
(7) O! God, may he live for ever in this world, with crown
and throne and fortune and life.
(8) The time of this building of this age is this auspicious
date, of which the indication is 935. (E.T.C.)
1455. From perusal of the text of the inscription said to be
found inside the mosque i.e., the 6-lines inscription it is evident
that the text quoted by Fuhrer, Beveridge and Maulvi F. Ashraf
Hussain has apparent and demonstrable differences. The first
line of the text by the three reads as under:
-ii i i ri (Fuhrer)
- iir i l i, (Beveridge)
- iir i l i, (Maulvi F. Ashraf Hussain)
1456. Similarly, we find difference in line 2 which is
demonstrated as under:
i i l i ii n ;i (Fuhrer)
li;-n iii n - i| | (Beveridge)
li;-n iii n - i| | (Maulvi F. Ashraf Hussain)
1457. The third line is also not the same.
li i i i i i (Fuhrer)
li -rn li i (Beveridge)
li r ; -rn li i (Maulvi F. Ashraf Hussain)
1608
1458. The fourth line of Fuhrer is different than what is
contained in Beveridge and Maulvi Ashraf Hussain as is evident
from the following:
-| in lii -| ii (Fuhrer)
-| in lii -| i | (Beveridge)
-| in lii -| i | (Maulvi F. Ashraf Hussain)
1459. Fifth line of all the three is different as demonstrated
below:
-i r- i i i i l i (Fuhrer)
i i | l ni| i -l-, (Beveridge)
i i | i li;i, (Maulvi F. Ashraf Hussain)
1460. Sixth line of Beveridge and Maulvi F. Ashraf
Hussain is the same but different from Fuhrer as seen below:
i i rl i -| i -i (Fuhrer)
i i n n- i i | (Beveridge)
i i n n- i i | (Maulvi F.Ashraf Hussain)
1461. The next inscription which according to Fuhrer was
a ten-line Persian poetry, Beveridge could get only three lines
thereof and termed incomplete, Maulvi M.Ashraf Husain
however found complete and running in about 10/11 lines. The
distinction therein are:
Line-1 ll-~ilr r-il r|- (Fuhrer)
No such line is found in Beveridges text.
ll-~ilr r-il r|- lr| ln|
(Maulvi F. Ashraf Hussain)
Line-2 i- i l.............................. (Fuhrer)
i- il ii r-n (Beveridge)
i- i l + ii-n
(Maulvi F.Ashraf Hussain)
Line-3 iil - i i| (Fuhrer)
1609
l iil -i i- i-i| (Beveridge)
l iil -i i- i-i|
(Maulvi F.Ashraf Hussain)
Line- 4: completely defaced in the text of Furher but
Beveridge and Maulvi F.Ashraf have given the following
text:
- -ni i ni i (Beveridge)
- -ni i ii (Maulvi F.Ashraf
Hussain)
Line-5 : Completely defaced in Furhers text but in
Beveridges and Maulvi F.Ashrafs text it is quoted as
under:
l lii ri| (Beveridge)
l li i ri| (Maulvi F.Ashraf
Hussain)
Line-6 : Completely defaced in Furhers text but in
Beveridges and Maulvi F.Ashrafs text it is quoted as
under:
ii ri i (Beveridge)
ii ri i (Maulvi F.Ashraf Hussain)
Line-7 : Completely defaced in Furhers text but in
Beveridges and Maulvi F.Ashrafs text it is quoted as
under:
l i i n|n| i-i| (Beveridge)
l i i n|n| i-i| (Maulvi F.Ashraf Hussain)
1462. After Line-7 Beveridge does not give any further
text but has given remark that the inscription was incomplete
but Furher and Maulvi F.Ashraf Husain have given the
following text:
Line-8 i i i r i r -i r | - (Fuhrer)
1610
i i r n li ln ni
(Maulvi F.Ashraf Hussain)
Line-9 -| i l i i i i -i | (Fuhrer)
-| i l-i i-i| (Maulvi F.Ashraf
Hussain)
Line-10 i r n -| - - (Fuhrer)
i r n -| - - (Maulvi F.Ashraf Hussain)
Line-11 l i i i i ni n i | (Fuhrer)
l i -i -| i | i - i|
(Maulvi F.Ashraf Hussain)
Line-12 ............................... (Fuhrer)
- i| nn n| - i (Maulvi F.Ashraf
Hussain)
Line-13 ............................... (Fuhrer)
| -l-i lri r-n i|
(Maulvi F.Ashraf Hussain)
Line-14 ............................... (Fuhrer)
i ii ri i;i ii (Maulvi F.Ashraf
Hussain)
Line-15 ............................... (Fuhrer)
l li n ni ni l ni|
(Maulvi F.Ashraf Hussain)
Line-16 li -r | ni| i -- (Fuhrer)
li r | ni| i --
(Maulvi F.Ashraf Hussain)
Line-17 r | l rn i | (Fuhrer)
l r | l i i |
(Maulvi F.Ashraf Hussain)
Line-18 ............................... (Fuhrer)
n--n ri-ni r| in -r l n ~ir
1611
rir i-n ; r| nr ~ir -ir--
ni|| (Maulvi F.Ashraf Hussain)
1463. We are extremely perturbed by the manner in which
Ashraf Husain/Desai have tried to give an impeccable authority
to the texts of the alleged inscriptions which they claim to have
existed on the disputed building though repeatedly said that the
original text has disappeared. The fallacy and complete
misrepresentation on the part of author in trying to give colour
of truth to this text is writ large from a bare reading of the write
up. We are really at pains to find that such blatant fallacious
kind of material has been allowed to be published in a book
published under the authority of ASI, Government of India,
without caring about its accuracy, correctness and genuineness
of the subject. We have already given write up of Ashraf
Husain. Firstly, he said that the mistake was committed in
number of inscriptions. He claims that on the eastern faade is a
Chhajja below which appears a Quranic text and above thereto
an inscription in Persian verse. Then he says that on the central
mehrab are carved religious text such as Kalma (First creed),
etc. Then he says that on the southern face of the pulpit
previously there affixed a stone slab bearing a Persian
inscription in verse and another inscription in Persian verse was
built up into right hand side wall of the pulpit. Both these
inscriptions i.e., the one claimed to be on the southern face of
the pulpit and the other on the right hand side wall of the pulpit
are said to be non-available by observing of these the last
mentioned two epigraphs have disappeared. The time of
disappearance according to Maulvi Ashraf Husain was 1934
A.D. when a communal riot took place at Ayodhya. However,
he claimed to have got an inked rubbing on one of the two
1612
inscriptions from Syed Badrul Hasan of Faizabad. The
whereabouts of Syed Badrul Hasan , who he was, what was his
status, in what way and manner he could get that ink rubbing of
the said inscription and what is the authenticity to believe it to
be correct when original text of the inscription are not known.
There is nothing to co-relate the text he got as the correct text of
the inscription found in the disputed building claimed to have
lost in 1934.
1464. He also admits that the existing inscription which was
restored by Muslim community was 'inlaid nastaliq' character
but simultaneously says that the restored inscription is slightly
different from the original and this distinction he attributes
perhaps to the incompetence of the restorer in deciphering it
properly. When the original was already lost and there was
nothing to verify the text of restored inscription with the
original, neither the restored one can be relied upon nor it is
understandable as to how he could have any occasion to
compare the restored one with the alleged nonest/lost original
one. It appears that the text which he got from Syed Badrul
Hasan of Faizabad treated by him to be correct and taking it as
the original text he has proceeded accordingly. It is also
interesting to note that in the footnote realising this difficulty at
item no.4, he has said that this tablet was found in 1906-07 A.D.
by Maulvi M. Suhaib of the office of Regional Archaeological
Surveyor, Northern Survey (Annual progress report of the
office of Archaeological Surveyor, Northern Survey Agra for
1906-1907), Appendix D). We however, find it difficult to
understand this reference if the inscription was fixed on the wall
of the disputed building, the question of finding tablet by
Maulvi M.Ashraf Husain does not arise. If what he intends to
1613
suggest is that the inscription was noticed by Maulvi M. Suhaib
in 1906-07 and he has made some reference in the annual
progress report of 1906-1907, the text of the inscription if was
published in the said report, the author ought to have taken
material from such report and not from a stranger namely Syed
Badrul Hasan of Faizabad whose credentials and authenticity is
unknown and whether any such person actually existed or not,
even this is doubtful, as has been argued by Sri Mishra and we
find substance therein.
1465. The matter does not rest here. Ashraf Husain has
critically commented upon the reading of one or two
inscriptions as published by Fuhrer and Beveridge stating that
....their readings are so incomplete, inaccurate and different
from the text that their inclusion in this article is not only
desirable but also imperative.
1466. Once the alleged two inscriptions are lost and one of
such inscriptions according to Sri Husain was found by Fuhrer
who has published its text, without having either the inscription
itself with him (Husain) or the authenticated stampage of the
text of such inscription, how there could be any occasion for
Husain to claim that the text given by Fuhrer is incorrect.
Similarly, he also could not have any occasion to compare that
text with that of Beveridge. Admittedly, the date of publication
of such inscription by Fuhrer and A.S. Beveridge is before the
date of disappearance i.e. 1934 as alleged by Ashraf Hussain.
Therefore, so far as Fuhrer and Beveridge are concerned they
could have an occasion to peruse the inscription that was
installed before 1934 but so far as Maulvi M. Ahsraf Husain is
concerned, this occasion in his own words, could not have
arisen. The text, description and whatever had been set up by
1614
Ashraf Husain in respect of the above inscription is unbelievable
and lacks trustworthiness. We are constrained to observe at this
stage that in the matter of historical events and that too, when it
bears a religious importance and the matter has also seen serious
disputes between two communities, the persons who are
connected with history etc. must behave responsibly and before
making any write up, should check up, cross check and verify
very carefully what they are writing since the consequences of
their write up may be dangerous and irreparable.
1467. We move on to one more aspect. Even the text of the
inscription which Ashraf Husain has given in plate 17(b), he
says that the same is not what was printed in the existing
inscription as restored by Muslim community after 1934 riots
but the same is an added version from the stampage obtained
from Syed Badrul Hasan of Faizabad. At this stage, we are
unable to compare even the restored text of the inscription as the
same is not available and Maulvi M. Ashraf Hussain instead of
giving the existing text as it is of the restored inscription has
changed it according to his whims and caprices.
1468. Coming to the authenticity of the text of the two
inscriptions given by Beveridge, we find that she herself had
neither read the said texts nor visited Ayodhya at any point of
time. She claims to have received copy of the text through some
correspondence made by her husband, Henry Beveridge, an
I.C.S. Officer in British India Government.
1469. The text of two inscriptions are the copy which she
claims to have received from Deputy Commissioner of Faizabad
on an inquiry made by her husband. In this regard at page 656,
foot note 3 at the bottom she has said:
that he spent a few days near Aud (Ajodhya) to settle its
1615
affairs. The D.G. Of Fyzbaa (H.E. Nevill) p.173 says In
1528 AD, Babur came to Ajodhya (Aud) and halted a week.
The destroyed the ancient temple (marking the birth-place
of Rama) and on its site built a mosque, still known as
Baburs Mosque..... It has two inscriptions, one on the
outside, one on the pulpit; both are in Persian; and bear
the date 935 AH. This date may be that of the competition
of the building.--(Corrigendum:-On f.339 n. 1, I have too
narrowly restricted the use of the name Sarju. Babur used
it to describe what the maps of Arrowsmith and Johnson
shew, and not only what the Gazetteer of India Map of the
United Provinces does,. It applies to the Sarda (f.339) as
Babur uses it when writing of the fords..
1470. Perhaps she went through the description of the
disputed site in the light of the observations made by Sri Nevill
who wrote 1904 -1905 Gazetteer (Supra). Whether the alleged
text made available to her by the Dy. Commissioner, Faizabad
was an ink stampage of the text of the alleged two inscriptions
or it was obtained by him through somebody else by reading the
contents or the manner in which the said text was collected, is
not known. Rather there appears to be something otherwise.
Footnote 2 on page lxxvii , Appendics U of Baburnama
(Memoirs of Babur) shows that some changes were made by
Beveridge also:
2. A few slight changes in the turn of expressions
have been made for clearness sake.
1471. To what extent the corrections have been made and
what was necessity thereof is not ascertainable. Why a verbatim
reproduction could not be made is also not understandable. At
least there is nothing on record enabling us to examine this
1616
aspect of the matter. The second inscription, text whereof is
quoted at page lxxviii, Appendices U of Baburnama by
Beveridge, we find that the same is incomplete and the reason
assigned by Beveridge is that it is not now legible. The text of
second inscription was not legible to Beveridge whose book was
first published in 1914/1921. We fail to understand how its
complete text could be available to Maulvi M. Ashraf Husain
after more than forty years thereafter who got it published in
Epigraphia Indica -Arabic and Persian Supplement 1965
(supra).
1472. From the text of A. Fuhrer the period of construction
of the disputed building is not 1528 AD and it also does not say
that the same was built by Mir Baqi. The inscription no. XLI,
line four mentions the name of Mir Khan and inscription no.
XLII shows the period of construction as Hijra 930. The text
given by Sri Sushil Srivastava, PW 15 in his book The
Disputed Mosque-A Historical Enquiry is based on the text of
two inscriptions given by A.S. Beveridge and Prof. Radhey
Shyam as is evident from page 78-79 of his statement. Athar
Hussain's text is the reproduction from Beveridge. Dr. Radhey
Shyam has taken the text of three inscriptions from M. Ashrat
Hussain's write-up published in Epigraphia Indica-Arabic and
Persian Supplement in 1964-65.
1473. The apparent distinction, as appear from Fuhrer's
reading of the inscription, is:
(a) There is no mention of word of "honour" before the
name of Babar.
(b) Instead of "Mir Baqi" it mentions "Mir Khan".
(c) There is no use of the word "mosque" but it
mentions "lofty building" and also shows no
1617
dedication to Almighty.
This is in respect to the first inscription.
1474. Then comes the second inscription, where the marked
distinction is the date i.e. 930 A.H. (1523 AD). It is a well
known fact that in 1523 AD Babar was not in Hindustan but in
Kandhar/Kabul.
1475. Archaeological Survey of India also published a book
The Monumental Antiquities And Inscriptions In The North-
Western Provinces And Oudh described and arranged by A.
Fuhrer published by the Superintendent, Government Press, N.-
W. Provinces and Oudh, 1891. Copy of the frontispiece as well
as pages No.295, 296 and 297 thereof have been filed as Paper
No.107C1/33-36 i.e. Ex.9, Suit-5 (Register Vol.20, Pages 67-
73). We have the entire book published in 1967 by Rameshwar
Singh, Indological Book House, Varanasi (Book No.94). Pages
No.295-297 are verbatim the same filed as paper Nos.107C1/34-
36. About construction of building in dispute, on page 297 it
says, It is locally affirmed that at the Musalman conquest there
were three important Hindu temples at Ayodhya; these were the
Janamasthanam, the Svargadvaram, and the Treta-ke-Thakur.
On the first of these Mir Khan built a masjid, in A.H. 930,
during the reign of Babar, which still bears his name. The
reference has been made to Archaeological Reports (New
Series), Vol.1, page 67.
1476. Ex. 81 (Suit-4) (Paper No. 216C1/1-21) consists of
certain pages from book Babarnama translated by Yugjeet
Navalpuri, first published 1974, third publication 1996, 1998
and reprint 2002 by Sahitya Academy, New Delhi. The Editorial
Note says that the book consist of Hindi translation by
Navalpuri of F.G. Talbot's Edition of the Memoirs of Baber.
1618
However, the Chapter Introduction running from Page 9 to 18,
pages 438 to 456 giving history from AH (1527 AD) and then
for the year AH 936, page 510 has been filed. Sri Jilani from the
above extract of the book has sought to submit that there is no
mention either of entry of Babar to Ayodhya or any act of
demolition of any temple or construction of a Mosque. For the
date of construction of the disputed building in 1528 AD, he
refers to Footnote 48 on page 447 which refers two inscriptions
at the disputed building as under :
s. (l) li n l- ii - lii r rzs ; o -
i ii (i) ii i nir ri| i| -l
(i---ii) n i -ii -l i; | . . . ;
-l i li i r | () -l i | n
- iilr i l i i; -n ni ili n - i|
i ; - rln li | -| inlii -| i|
i i | i i;i i i , l n n- i i |!
(nnn n r i i ii li | iir i i ii i
| ni | r nlii ! l- -| i| i i ii i !
i i| ! ri -- - i i | r l-i i-!
(i i li i) -|i| (i i , -| oii| i| rii,
(nii |) i i i -l i| i|| ri ri
i i | = () r si; - r , (z) i| -|o) i
ii - l-ii| ri ( i -i -- r , i i-
- r iii i ii-i)| i = l-i i lnli ii |
( i i = zc=) z, i (i = coo
o zoo =) so, i| ( l i = z
oo o =) s =ssr (lro)|
(z) -l i r
i- i l ii r-n l iill -i i- i-i|
- n i i lnii l i i li iri|
ii ri i l i il n|n| i-i||
(| i- l i i, i r -r-n-, ln i,
1619
l l - n i i) l i ii in - i-,
nn - |ln -n i i l- riln - n !)
-- r l li i i r|
- n i (-ir n ii s ni) - r-- ir i liiii-
r | i ( o ) ;l r l iini- iii i
l l| il - ri i ii r| ri (in| i
lin| r i r)| ii ( lni i) ;l l iin -
il n i iiii - l s i| ii|
1477. The language of the inscriptions is same as that is
quoted in Baburnama by Beveridge (supra) who claimed to
have text of the two inscriptions from the Deputy Commissioner
of Faizabad and has referred to Nevill's Gazetteer of 1905 on
page 556 of the book. Reading of the words Mir Baqi as
Shaghawal, Tashkandi appears to be the understanding of
the author himself inasmuch it is not in dispute that both the
names i.e. Baqi Shaghawal and Baqi Tashkandi have been
mentioned separately in Baburnama and there is nothing to
co-relate the two being name of the same person or that to
corelate with 'Mir Baqi'. Sri Jilani also could not place anything
to co-relate Mir Baqi with Baqi Shaghawal or Baqi Tashkandi to
show that they were the names of one and the same person. We
also find that on page 11 (Paper No. 216C1/5, the writer has
mentioned : ii
11
, i | ; ni
z
| | i l - r| n
| i|| Statistics 11 has been explained on page 15 (Paper
No. 216C1/7) as under :
. ni i- i li ii i ii, - l,
i-ii i lii| nii i| ili (iii|ii ) i
- ~ii i - i| -|- i| i ii|
1478. In Regular Suit No. 29 of 1945 (Shia Central Waqf
Board of Waqf Vs. Sunni Central Board of Waqf), it appears
that the Court issued a direction to record the text of the
1620
inscriptions found at the disputed building. On 26.3.1946, Sri A.
Akhtar Abbas went to read the inscriptions and noted on his
inspection note as under :
"Inspection Notes
26.3.46
Present ... Mussama Khoja M. Yaqub, counsel of
parties (besides others)
Inspected the mosque in suit & found the following
inscriptions on a stone table near the pulpit-






- iir i l i,
li-n ni ii n - i||
li ; - rn li ,
-| in lii -| i||
i i|! i i lii,
i i l n n- i i||
(Hindi Transliteration by Author)
iir i iii i li i,
| -in r i iii | +i; n r n| r|
l-i i ii ; llni n -ii i ,
i iiii| -|, -| i| ,
i i| (r ii n n r) i l-i i i i
r.
r -- ri ni i - r l r ii n n r |
(Hindi Translation by Author)
(1) By the order of king Babar whose justice is an edifice
1621
meeting the pace of sky (i.e. as high as the sky).
(2) this descending place of the angels was built by the
fortunate noble Mir Baqi.
(3) it will remain an everlasting bounty and (hence) the
date of its erection became manifest from my words: it will
remain an everlasting bounty.
(English Translation by Author)
According to both parties this katba was replaced &
new in place of the original tablet which was demolished
during the communal riot in 1934.
There is another tablet at the central arch of the
mosque facing the court-yard and it contains the following
couplets:-











() ll-~ilr r-il r|- l n|
(z) i- il + ii-n l iil -i i-
i-i|
- -ni i ii l li i ri|
ii ri i l i i n|n| i-i|
(s) i i r n li ln ni -| i l-i
1622
i-i|
i r n -| - - l i-i -| i| i- i|
- i| nn n| - i | -l-i lri r-n i|
() i ii ri i;i ii l li n ni ni lni|
li r | ni|i -- l r | lii|
n--n ri -nir| in -r l n ~ir rir i-n
;
r| r ~ir -ir-- ni||
(Hindi Transliteration)
~ir i- i -n ii- i ii r, i
ii
. i- i -ri l,-i r i i i i -i
-ii | - n r
z. | i i i -i r-- - -ni ~~iri lr ~-
ri i li i i i - ln r |
s. i i i i i - i r l r
- i- r i r |
. r i - i- r l l ini ii l in li,
| i i| iii -i - li|
r. iir| i i lii i r li i- -| i|
l,n| il r
c. ii i iri i i i ii i ; -l-
i l i liili ii r|
/. ! i i i - i ni, l ri, ii i | i |
r |
s. ; n ; ;-in | li | i i lnli | lii| ssr
r | (Hindi Translation)
In the name of Allah, the Beneficent, the merciful,
and in Him is my trust.
(1) In the name of One who is Wise, Great and Creator of
all the universe and is spaceless.
(2) After he praise, blessing be upon the Choosen one (i.e.
1623
the Prophet) who is the head of the Prophets and best in
the world.
(3) The Qalandar like Babar has attained fame in the
whole world to the effect that he has been a successful
emperor.
(4) He is such an emperor as has conquered all the seven
climes of the world and also captured the earth as in case
of sky.
(5) In that royal court there was a magnificent noble
named Mir Baqi, the second Asaf.
(6) (He is) councillor of the Government and administrator
of his kingdom, who is the founder of this mosque and fort-
wall.
(7) O! God, may he live for ever in this world, with crown
and throne and fortune and life.
(8) The time of this building of this age is this auspicious
date, of which the indication is 935. (E.T.C.)
Note: The above inscription was read by Shukh
Karamatullah (D.W. 5) who climbed up the arch by means
of a ladder and ?the verses are written in Arabic
characters."
1479. In the book Ayodhya Ka Itihas by Sri Avadhwasi
Lala Sitaram, first published in 1932, reprinted in 2001,
published by Arya Book Depot, New Delhi, the transcript of the
in-script has been mentioned at page 115/116 which is a
verbatim copy of the text quoted by A.S. Beveridge. The learned
author has given, however, totally different reasons and history
of the construction of the disputed building. There is nothing to
show the basis on which he has written the said history. Sri
Jilani has castigated the contents of this entire book of Lala
1624
Sitaram contending that neither he was a historian nor there is
any authority mentioned in his book to generate confidence for
what has been written therein, therefore, this book is not
reliable. This author retired from the office of Deputy Collector
as appearing from the Forward of his book written by Sri
Devendra Swaroop.
1480. The above discussion tells us that basically there are
three version in respect to the text or transcript of the
inscriptions fixed on the disputed building. The text available to
A.Fuhrer says that "a firmament-like lofty strong building was
erected by an auspicious noble Mir Khan under the command of
Babar in the year 930 AH i.e. 1523 AD and foundation of the
said building was laid down by the King of China and Turkey in
presence of Babar". The transcript made available to Beveridge
reveal that "under the command of Emperor Babar, good
hearted Mir Baki built that alighting place of angels in 935 AH
i.e. 1528-29". The last one is that of ASI report of 1964-65
edited by Z.A.Desai, the transcript whereof says that by the
order of King Babar that descending place of Angles was built
by the fortunate noble Mir Baki". In respect to another
inspection, Desai text says that "a lofty building and lasting
house (of God) was founded by Mir (and) Khan (Baqi)". The
words placed within brackets are that of Mr. Husain or Dr.
Desai's own insertion and do not find place in the text of the
inscription as such.
1481. The fourth one, which can be said to be very recent
and inspire more confidence than other is the one when pursuant
to the order of the learned Civil Judge, Faizabad, Sri A. Akhtar
Ahasan made inspection of the disputed structure on 26
th
March,
1946 and obtained text of two inscriptions fixed on the disputed
1625
building at that time. This text, as is reproduced in judgment
dated 30.03.1946 (Ex. A42, Suit-1) in R.S. No.29/1945 says that
in the first inscription the words are by the order of Shah
Babar, Amir Mir Baki built the resting place of angles in 923
A.H. i.e. 1516-17 AD". In respect to second inscription, he says
that Mir Baki of Isphahan in 935 AH i.e. 1528-29 AD. We
find that the reading of text of inscriptions by Civil Judge,
Faizabad was earlier than Dr. Z.A.Desai's publication yet there
is a good variance with the text of the estampage procured and
transcribed by Desai.
1482. In the entire Babar-Nama i.e. all the translations made
by various writers, we are not informed that the words Mir
Baki Isfahani" has been mentioned at any place. What has been
said is Baki Tashkendi and various other Bakis but not Mir Baki
Isfahani. We are informed by Sri P.N.Mishra, which is not
disputed by other learned counsels, that Taskend is a city of
Uzbekistan while Isfahan is a province of Iran.
1483. Sri Mishra, on the basis of the above facts submits that
Baki Isfahani and Baki Taskandi cannot be regarded as one and
the same person. Baki Isfahani a person not known to Babar
having not been mentioned in Babarnama could not have any
kind of authority at all in the period of Babar. It is therefore safe
to presume that it is fictitious name which adds and fortify the
argument that the inscription has been implanted later on with a
transcription which is fictitious and false and had no factual
authenticity.
1484. The above discussion raises a serious doubt over the
genuinity and authenticity of the text or transcript of the
inscriptions and the time when they were fixed on the disputed
building. To base a finding in a judicial proceeding while
1626
adjudicating a dispute of this nature, it would be improper and
against the all cannons of the principles applicable in such
matter. However, there are some more facts and material which
needs to be considered before recording a final opinion on the
matter.
1485. The very first document/historical book in this regard
is Tuzuk-i-babri, i.e., Baburnama or daily diary of Babar
which has been translated and published by several well known
authors and some of them are considered to be the authentic
work internationally also. Broadly the learned counsels for the
parties and the Expert Historians have also not disputed
authenticity of such work which we now propose to refer.
1486. Babur-nama (Tuzuk-i-babri) commences its
description from 899 Hizra (1493-94 AD). In the total life span
of 47 years and 10 months, the description of only 18 years of
Babur's life is available and that too in various spans. The
period, for which the details are not available, are as under:
1. History from the birth (14
th
February, 1483 AD) till
Singhasanarohan Ramazan 899 Hijri (June 14, 1494 AD)
2. Description from 908 Hijri (1503 AD) till 909 Hijri
(1504 AD)
3. Description from 914 Hijri (1508 AD) till 925 Hijri
(1519 AD)
4. Description from 4 Safar 926 Hijri(15
th
January 1520
AD) till 30 Muharram 932 Hijri (16
th
November, 1525
AD)
5. Description from 13 Rajab 934 Hijri (3
rd
April 1528
AD) till 2 Muharram 934 Hijri (17
th
September, 1528 AD)
6. History of following days of 934 Hijri (1528-29 AD):
(a) 1, 2 Muharram 934 Hijri (16, 17
th
September
1627
1528 AD)
(b) 21 Muharram 934 Hijri (6
th
October 1528 AD) to
26 Muharram 934 Hijri (11
th
October 1528 AD)
(c) 6 Safar 934 Hijri (20
th
October 1528 AD) to 8
Safar 934 Hijri (22
nd
October 1528 AD)
(d) 11 Safar 934 Hijri (25
th
October 1528 AD) to 20
th
Safar 934 Hijri (3
rd
November 1528 AD)
(e) 29 Safar 934 Hijri (12
th
November 1528 AD) to 8
Rabi-ul-Avval (20
th
November 1528 AD)
(f) 15 Rabi-ul-Avval (27
th
November 1528 AD) to
18 Rabi-ul-Avval (1
st
December 1528 AD)
(g) 24 Rabi-ul-Avval (7
th
December 1528 AD) to 28
Rabi-ul-Avval (11
th
December 1528 AD)
(h) 13 Rabi-ussani (25
th
December 1528 AD) till 15
Rabi-ussani (27
th
December 1528 AD)
(i) 6 Jamadi-ul-Avval (16
th
January 1529 AD) till 9
Jamadi-ul-Avval (19
th
January 1529 AD)
(j) 19 Shavval (25
th
June 1529 AD) till 30 Shavval
(6
th
July 1529 AD)
(k) 5 Zikad (11
th
July 1528 AD) till 11 Zikad (17
th
July 1529 AD)
(l) 20 Zikad (27
th
July 1529 AD) till 4 Zilhijja (10
th
August 1529 AD)
(m) 11 Zilhijja (17
th
August 1529 AD) till 29 Zilhijja
(4
th
September 1529 AD)
7. 4 Muharram 936 Hijri (8
th
September 1529 AD) till 6
Jamadi-ul-Avval 937 Hijri (26
th
December 1530 AD).
1487. In India, Babar came in 1526 AD and the description
available of that period till his death is as under:
1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12
1628
Rajab 934 Hijri (2
nd
April 1528 AD)
2. From 3 Muharram 934 Hijri (18
th
September 1528 AD)
till 3 Moharram 936 Hijri (7
th
September 1529 AD). In
this way the description of only three days of first month
of 936 Hijri is available. The description of many days in
between 935 Hijri is also not available.
1488. The missing record is of the period 2
nd
April, 1528
A.D. to 17
th
September, 1528 A.D. which is crucial for this
matter. Out of this period, 2
nd
April, 1528 to 15
th
April, 1528
was part of 934 A.H. and 15
th
September, 1528 to 17
th
September, 1528 was part of 935 A.H. It means in the crucial
year i.e. 935 A.H., the missing record is only of three days.
Therefore, non mention of anything about disputed in 935 A.H.
building in Babar-Nama does not sound to any reason.
1489. On crossing of the Babar's army led by his commander
Sultan Chin Taimur, they found that Bayazid and Biban had
already fled away and therefore, no fight at Ayodhya could have
occurred. That being so, the question of killing of any Muslim
and making of grave at the disputed site does not arise.
1490. The Manuscripts (in short MS) of Baburnama, as
available has been noticed by Mrs. A.S. Beveridge based on the
magazine published by Royal Asiatic Society, Landon in 1900
AD:
1. MS written by Babur
2. MS sent to Khwaja Kalan
3. MS written by Humaun
4. MS possessed by Alphinston
5. MS kept at British Museum, Landon
6. MS in the India office of British Government
7. MS of Asiatic Society, Bengal
1629
8. MS at Mysore
9. MS of Biblothika Lindesiyana.
10. MS at Hyderabad
11. MS of St. Peteres Berg University.
12. MS kept at foreign office of St. Peters Berg
13. MS kept at Asiatic Society Museum of St. Peters
Berg
14. MS of Bukhara
15. MS of Nazerbe Turkistan
1491. It is said that probably Babur got prepared two MS but
presently none is available / traceable. Similarly MS sent to
Khwaja Kalan, which is referred in his (Babur's) description
dated 4
th
March, 1529 is also not available/traceable. Even
otherwise since it is said to have been sent on 4
th
March, 1529, it
could not have been completed after 4
th
March, 1959. MS of
Mysore that is possessed by Tepu Sultan is also not available /
traceable.
1492. Elphinston purchased the MS of Babur at Peshawar in
1809 AD, which probably was prepared between 1543 to 1593
AD and the said MS is kept in the Advocate's library, Edimbara.
1493. Dr. Leyden translated some of the part of Babur's
autobiography from the MS of Elphinston and Erskin made
corrections in his translation on the basis of the said MS.
1494. MS of Biblothika Lindesiyana was purchased in 1865
AD and is incomplete.
1495. MS of Hyderabad was made available to Mrs.
Beveridge from the library of Sir Salar Jang. It is said to be
prepared in 1700 AD. It is most complete available MS, as
claimed by Mrs. A.S. Beveridge. She has written her translation
of 'Baburnama' on the basis thereof.
1630
1496. MS of St. Petersberg is said to have been prepared
from another MS copied in 1617 AD. Dr. George Jaikab Kehar
prepared the said MS in 1737 but the MS where from it was
prepared is not traceable. Elminski published Turkish Edition
of Baburnama in 1857 AD on the basis of the said MS and
French translation of Babur-nama made by Dr. Pevet Kotele
was also based on the said MS.
1497. From the reading of translation of 'Babur-nama' we do
not find any title thereof. However, now it is commonly known
as Babur-nama or Tuzuk-i-babri by all.
1498. In the earlier part of Babur-nama i.e. upto 1508-09
AD, it is in the form of history where the details have been
given of various events occurred in different years but from
1519 AD till end, it is a day to day description.
1499. Baburnama was originally written in Turkish. Initially,
it was translated in Persian prose by Sheikh Zain Wafai Kwafi.
One of the MS of the said translation is in Raza Library,
Rampur, U.P. (India) and another is in British Museum, Landon.
Another Persian translation was made by Mirza Payanda Hasan
Gajnavi in 1586 AD under the orders of Behroz Khan Gajnavi,
who in fact made a partial translation and it was completed by
Mohd. Kuli Mugul Hisari. The most universal popular Persian
translation was made by Mirza Abdurrahim Khane Khana Bin
Bairam Khan (Abul Fazal) in 1589 AD.
1500. The first English translation of Babur-nama was
attempted by Dr. John Leyden in 1810 AD. However, he
could not complete the same and died in August, 1811 AD. At
the same time William Erskine also commenced his English
translation from Persian under the instructions of General Sir
John Malcom and Elphinstone and completed his work in 1813
1631
AD. Thereafter he found that there was a lot of differences in
the work of Dr. John Leyden. Since Leyden had commenced
his translation from Turkish MS, Erskine made corrections in
his translation and this work was published in 1826 AD under
the title Memoirs of Zehir-ed-Din Muhammad Babur by
John Laden and William Erskine.
1501. Another translation was made in English by Mrs.
Annette Susannah Beveridge, (hereinafter referred to as
Beveridge) under the title Babur-nama (Memoirs of Babur).
Initially her translation was published in four parts as under :-
i. History prior to Babur's victory of Kabul (the period
relating to Phargana) published in 1912 AD.
ii. From Kabul Victory till India victory ; published in
1914 AD
iii. From India's victory till end ; published in 1917 AD
iv. Introduction, Glossary etc. ; published in 1921 AD
1502. The complete four parts in two volumes were
published collectively in 1922 under the title The Babar Nama
in English.
1503. French translation was made by Pevet-de-Kotele
published in 1871 AD.
1504. The learned counsels for the parties have not disputed
that the contents of the book of Beveridge's translation of
Babur-Nama available to the Court has no difference with the
photocopies of some of the pages filed as Exhibits, detailed
above.
1505. The parties agree that amongst various books
translating Babur-nama, Mrs. Beveridge's translation is the
most authentic and complete. The 'Affairs of Hindustan'
commences from page 439 which says:
1632
The centre of interest in Babur's affairs now moves from
Qandahar to a Hindustan torn by faction, of which faction
one result was an appeal made at this time to Babur by
Daulat Khan Ludi (Yusuf-khail) and 'Alau'd-din 'Alam
Khan Ludi for help against Ibrahim.
1506. The details of meeting of Dilawar Khan and Babur
giving an occasion to him to come to India has been written by
Mrs. Beveridge on page 440 as under :
b. Reception of Dilawar Khan in Kabul.
Wedding festivities were in progress when Dilawar
Khan reached Kabul. He presented himself, at the Char-
bagh may be inferred, and had word taken to Babur that an
Afghan was at his Gate with a petition. When admitted, he
demeaned himself as a suppliant and proceeded to set forth
the distress of Hindustan. Babur asked why he, whose
family had so long eaten the salt of the Ludis, had so
suddenly deserted them for himself. Dilawar answered that
his family through 40 years had uphelf the Ludi throne, but
that Ibrahim maltreated Sikandar's amirs, had killed 25 of
them without cause, some by hanging, some burned alive,
and that there was no hope of safety in him. Therefore, he
said, he had been sent by many amirs to Babur whom they
were ready to obey and for whose coming they were on the
anxious watch.
c. Babur asks a sign.
At the dawn of the day following the feast, Babur
prayed in the garden for a sign of victory in Hindustan,
asking that it should be a gift to himself of mango or betel,
fruits of that land. It so happened that Daulat Khan had
sent him, as a present, half-ripened mangoes preserved in
1633
honey ; when these were set before him, he accepted them
as the sign, and from that time forth, says the chronicler,
made preparation for a move on Hindustan.
1507. Babur's expedition to India (Hindustan) this time was
the fourth one and commenced in 930 AH i.e. 10
th
November,
1523 AD. The first battle ensued between Babur and Bihar
Khan leaving a section of army of Ibrahim Ludi at Lahor since
Daulat Khan had already fled therefrom. Babur defeated Bihar
Khan and his troops followed Bihar Khan fugitive men into
Lahor, plundered the town and burned some of the bazars.
Thereafter Babur moved to Dibalpur and samething happened
thereat also i.e. it was stormed, plundered and put to the sword.
We need not go into further details about other battles except the
major battle against Ibrahim Lodi son of Sikundar Lodi (An
Afghan) at Panipat which he (Babar) won on 20
th
April, 1526
A.D. This battle resulted in killing of about 40-50 thousand
soldiers. Babur immediately appointed Humayun to reach Agra
and take over the palace as also to mount guard over the
Treasure. Some of the confidents of Babur were directed to keep
watch on the Treasuries at Delhi.
1508. On 21
st
April, 1526, Babur visited bank of Jumna, on
24
th
April, 1526 A.D., he visited Sheikh Nizamud-din Auliya's
Tomb on the bank of river Jumna at Delhi and also made an
excursion into the Fort of Delhi where he spent night. On next
day i.e. 25
th
April, 1526 A.D., he visited Khwaja Qutbud-din's
Tomb, and the Tombs and residences of Suleman Ghiyasu'd-din
Balban and Suleman Alauud-din Khilji and his Minar, the Hoze-
shamsi, Hoze-i-khas and the Tombs and gardens of Suleman
Buhlul Ludi and Sikandar Ludi. On page 476, Mrs. Beveridge
mention:
1634
We bestowed the Military Collectorate (shiqdarlighi) of
Dihli on Red Wali, made Dost Diwan in the Dihli district,
sealed the treasuries, and made them over to their charge.
1509. On 28
th
April, 1526 A.D. Babur moved on for Agra
and also made an excursion to Tughluqabad. He reached near
Agra on 4
th
May, 1526 A.D. and stayed at the mansion of
Sulaiman Farmuli in a suburb of Agra and moved on the next
day to Jalal Khan's house. At Agra the garrison did not
surrender to Humayun, and, therefore he sat down to watch the
roads out of Agra till the arrival of Babur.
1510. The king of Gualiar (Gwaliar) had died in the battle of
Panipat but his son and other family members were at Agra at
that time. When Humayun reached Agra, they tried to flee away,
but could not due to the close guard of outside ways by
Humayun's army. They offered a mass of jewels and valuables
including the diamond Koh-i-nur to Humayun which was
offered by Humayun to Babur on his arrival but Babur gave it to
Humayun back. It is said that the said diamond weigh about 320
ratis (8 misqals). On 10
th
May, 1526 AD, Babur entered the fort
of Sultan Ibrahim Ludi at Agra.
1511. The biography though said to have been written de die
in diem, but the record of some period being not available, the
biography in respect to those dates is admittedly missing.
Regarding his activities at Ayodhya, from a perusal of Page 602
of the book, it appears that he reached at some distance above
the junction of rivers Ghaghara and Saryu on 28.3.1528, i.e.,
Saturday the 7
th
Rajab 934 A.H. The area reigned by Shaikh
Bayazid Baqi Shaghawal, along with some others crossed the
river and conquered the place. Babur stayed on the Bank of
Saryu for sometimes. The autobiography contains the date 2
nd
1635
April 1528 but thereafter there is a break of narrative between
2
nd
April to 18
th
September 1528 AD, i.e. Jumada II 12
th
, 934
A.H. and Moharram III 935 A.H.
1512. What happened at Ayodhya, whether Babur actually
visited Ayodhya or not, nothing is mentioned about it in the said
autobiography. The contents of his autobiography of dated
28.3.1528 and 2.4.1528 as contained on Page-602 are
reproduced as under :
"(March 28
th
) On Saturday the 7
th
of Rajab we dismounted
2 or 3 kurohs from Aud above the junction of the Gagar
(Gogra) and Sird(a). Till today Shaikh Bayazid will have
been on the other side of the Sird(a) opposite Aud, sending
letters to the Sultan and discussing with him, but the Sultan
getting to know his deceitfulness, sent word to Qaracha at
the Mid-day Prayer and made ready to cross the river. On
Qaracha's joining him, they crossed at once to where were
some 50 horsemen with 3 or 4 elephants. These men could
make no stand; they fled, a few having been dismounted,
the heads cut off were sent in.
Following the Sultan there crossed over Bi-khub
(var. Ni-khub) Sl. and Tardi Beg (the brother) of Quj Beg,
and Baba Chuhra (the Brave), and Baqi Shahghawal,
Those who had crossed first and gone on, pursued Shaikh
Bayazid till the Evening Prayer, but he flung himself into
the jungle and escaped. Chin-timur dismounted late on the
bank of standing-water, rode on at mid-night after the
rebel, went as much as 40 kurohs (80 m.), and came to
where Shaikh Bayazid's family and relations (nisba?) had
been; they however must have fled. He sent gallopers off in
all directions from that place; Baqi Shaghawal and a few
1636
braves drove the enemy like sheep before them, overtook
the family and brought in some Afghan prisoners.
We stayed a few days on that ground (near Aud) in
order to settle the affairs of Aud. People praised the land
laying along the Sird(a) 7 or 8 kurohs (14-16 m.) above
Aud, saying it was hunting-ground. Mir Muhammad the
raftsman was sent out and returned after looking at the
crossing over the Gagar-water (Gogra) and the Sird(a)-
water (Chauka?).
(April 2
nd
) On Thursday the 12
th
of the month I rode out
intending to hunt." (emphasis added)
1513. Page 617 of the above book, mentions activities of
22.10.1528 as under :
"(Oct. 22
nd
) By this time the treasure of Iskandar and
Ibrahim in Dihli and Agra was at an end. Royal orders
were given therefore, on Thursday the 8
th
of Safar, that
each stipendiary (wajhdar) should drop into the Diwan, 30
in every 100 of his allowance, to be used for war-material
and appliances, for equipment, for powder, and for the pay
of gunners and matchlockmen."
1514. For the period, i.e., 2.4.1528 to 18.9.1528, the record
of biography whereof is not available, during this period of five
and half months, the Babur is said to have proceeded to Junpur
(Jaunpur), Chausa, Baksara (Baksar) etc. and was ill for 40
days. Beveridge on Pages 603 and 604 of Babur-Nama has said:
"Mr. Erskine note (Mems. p.381n.) that he found the gap in
all MSS. he saw and that historians of Hindustan throw no
light upon the transactions of the period. Much can be
gleaned however as to Babur's occupations during the 5
months of the lacuna from his chronicle of 935 AH. which
1637
makes several references to occurrences of "last year" and
also allows several inferences to be drawn. From this
source it becomes know that the Afghan campaign the
record of which is broken by the gap, was carried on and
that in its course Babur was at Jun-pur (f. 365), Chausa (f.
365b) and Baksara (f. 366-366b); that he swam the Ganges
(f. 366b) bestowed Sarun on a Farmuli Shaikh-zada (f.
374b and f. 377), negociated with Rana Sanga's son
Bikramajit (f. 342b), ordered a Char-bagh laid out (f. 340),
and was ill for 40 days (F. 346b). It may be inferred too
that he visited Dulpur (f. 353b), recalled "Askari (f. 339),
sent Khwaja Dost-i-khawand on family affairs to Kabul (f.
345b), and was much pre-occupied by the disturbed state of
Kabul (see his letters to Humayun and Khawaja Kalan
written in 935 AH.).
It is not easy to follow the dates of events in 935 AH.
because in many instances only the day of the week or a
"next day" is entered. I am far from sure that one passage
at least now found s.a. 935 AH. does not belong to 934 AH.
It is not in the Hai. Codex (where its place would have
been on f. 363b), and, so far as I can see, does not fit with
the dates of 935AH. It will be considered with least trouble
with its context and my notes (q.v. f.363b and ff. 366-
366b)."
1515. From Page 679 of 'Babur-Nama' by Beveridge, it
further appears that Babur received message on 27.5.1529 about
taking of 'Luknur' by Baqi and one Abdullah (kitabdar). The
extract of the autobiography dated 27.5.1529 is reproduced as
under :
"(May 27
th
) On Friday (19
th
) I rode out to visit Sikandarpur
1638
and Kharid. Today came matters written by 'Abdu'l-lah
(kitabdar) and Baqi about the taking of Luknur."
(emphasis added)
1516. On 28.5.1529, it is mentioned that the Babur sent one
Kuki along with a troop to join Baqi.
1517. At Page 680 the author (Beveridge) has mentioned
about a surprise survival of some record of 934 A.H. and has
written that this part of the writing appears to be in respect to
Aud (Ayodhya) where Babur spent some days in 934 A.H. It
reads as under :
"After spending several days pleasantly in that place where
there are gardens, running waters, well-designed
buildings, trees, particularly mango-trees, and various
birds of coloured plumage, I ordered the march to be
towards Ghazipur." (emphasis added)
1518. Pages 684 and 685, refer the dates 13th June 1529
A.D., 17
th
June 1529 A.D. and 20
th
June 1529 A.D., and say that
Baqi joined Babur in pursuit of Biban and Bayazid near Dalmud
(Dalmau) and Baqi was given leave along with his army of Aud
(Ayodhya) on 20
th
June 1529 A.D.
1519. John Layden and William Erskine's book on
Babar/ Babur-Nama also does not throw any light on this
aspect.
1520. Lieut.-Colonel F.G. Talbot in his book Memoirs
of Baber Emperor of India-First of the Great Moghuls, first
published in 1909 (first Indian reprint 1974 published by Ess
Ess Publications, Delhi) has said that with an intent to set up an
Empire in India, he set out on march in 1525 A.D. along with
about 12 thousands men. On 29
th
December, 1525 A.D., he
reached at Sialkot. Here he has given his experience with Jats
1639
and Gujers in the following words :
Every time that I have entered Hindustan, the Jats
and Gujers have regularly poured down in prodigious
numbers, from their hills and wilds, in order to carry off
oxen and buffaloes. These were the wretches that really
inflicted the chief hardships, and were guilty of the severest
oppressions on the country. (Page 174)
1521. Therefrom he proceeded to Panipat where he defeated
Ibrahim Lodi, Sultan of Delhi in April 1526 A.D. On page 187
to 188, Talbot has narrated Baber's memoirs after defeating
Ibrahim Lodi as under :
On Thursday, the 28
th
of Rejeb, about the hour of
afternoon prayers, I entered Agra, and took up my
residence at Sultan Ibrahim's palace. From the time when I
conquered the country of Kabul, which was in the year
1504, till the present time I had always been bent on
subduing Hindustan. Sometimes, however, from the
misconduct of my Amirs and their dislike of the plan,
sometimes from the cabals and opposition of my brothers, I
was prevented from prosecuting any expedition into that
country, and its provinces escaped being overrun. At length
these obstacles were removed. There was now no one left,
great or small, noble or private man, who could dare to
utter a word in opposition to the enterprise. In the year
1519, I collected an army, and having taken the fort of
Bajour by storm, put all the garrison to the sword. I next
advanced into behreh, where I prevented all marauding
and plunder, imposed a contribution on the inhabitants,
and having levied it to the amount of four hundred
thousand shahrukhis in money and goods, divided the
1640
proceeds among the troops who were in my service, and
returned back to Kabul. From that time till the year 1526, I
attached myself in a peculiar degree to the affairs of
Hindustan, and in the space of these seven or eight years
entered it five times at the head of an army. The fifth time,
the Most High God, of his grace and mercy, cast down and
defeated an enemy so mighty as Sultan Ibrahim, and made
me the master and conqueror of the powerful empire of
Hindustan.
1522. The Empire of Hindustan on Page 189 of Talbot's
Memoirs of Baber (supra) is described in the following words :
The empire of Hindustan is extensive, populous and
rich. On the east, the south, and even the west, it is
bounded by the Great Ocean. On the north, it has kabul,
Ghazni, and Kandahar. The capital of all Hindustan is
Delhi.
1523. He also narrated that on one hand Baber criticised the
country he has recently invaded and conquered but
simultaneously he has expressed very high opinion. Page 190 of
the Book 'Memoirs of Baber' (supra) says:
Hindustan is a country that has few pleasures to
recommend it. The people are not handsome. They have no
idea of the charms of friendly society, of frankly mixing
together, or of familiar intercourse. They have no genius,
no comprehension of mind, no politeness of manner, no
kindness or fellow-feeling, no ingenuity or mechanical
invention in planning or executing their handicraft works,
no skill or knowledge in design or architecture; they have
no good horses, no good flesh, no grapes or musk-melons,
no good fruits, no ice or cold water, no good food or bread
1641
in their bazars, no baths or colleges, no candles, no
torches, not even a candlestick.
The chief excellency of Hindustan is, that it is a large
country, and has abundance of gold and silver. Another
convenience of Hindustan is, that the workmen of every
profession and trade are innumerable, and without end.
For any work, or any employment, there is always a set
ready, to whom the same employment and trade have
descended from father to son for ages.
1524. Though it is not necessary for the present purpose to
discuss Babur-nama at great length since we are not concerned
with the history of Babur or his invasion to India, laying of
empire here-at, and its other political, social and other
consequences but in the light of the respective arguments
advanced by the parties it may be of some importance to have a
bird eye view of some incidental relevant aspects borne out
from the description given in Babur-nama. Sri Mishra said that
Babar was a thorough religious person. In fact the submission of
Sri Misra that Babar was a deeply indulged religious man, had
no hatred towards idols, never visited Ayodhya and, therefore,
had no occasion to order for construction of any
building/disputed building, i.e., mosque at Ayodhya, are duly
concurred and in fact in the line of what has been argued by Sri
Jilani and other counsels appearing for various Muslim parties.
This however is in direct contradiction to the arguments of Sri
H.S.Jain, M.M. Pandey, A.K.Pandey etc.
1525. In Beveridge's Babur-Nama on page 15, the quality
and habits of Babar are described:
He was a true believer (Hanafi mazhablik) and pure in
the Faith, not neglecting the Five Prayers and, his life
1642
through, making up his Omissions. He read the Quran very
frequently and was a disciple of his Highness Khawaja
'Ubaidu'l-lah (Ahrari) who honoured him by visits and
even called him son. His current readings were the two
Quintets and the Masnawi of histories he read chiefly the
Shah-nama. He had a poetic nature, but no taste for
composing verses. He was so just that when he heard of a
caravan returning from Khitai as overwhelmed by snow in
the mountains of Eastern Andijan, and that of its thousand
heads of houses (awiluq) two only had escaped, he sent his
overseers to take charge of all goods and, though no heirs
were near and though he was in want himself, summoned
the heirs from Khurasan and Samarkand, and in the course
of a year or two had made over to them all their property
safe and sound.
He was very generous; in truth, his character rose
altogether to the height of generosity. He was affable,
eloquent and sweet-spoken, daring and bold. Twice out-
distancing all his braves, he got to work with his own
sword, once at the Gate of Akhsi, once at the Gate of
Shahrukhiya. A middling archer, he was strong in the fist,-
not a man but fell to his blow. Through his ambition, peace
was exchanged often for war, friendliness for hostility.
In his early days he was a great drinker, later on
used to have a party once or twice a week. He was good
company, on occasions reciting verses admirably. Towards
the last he rather preferred intoxicating confects and,
under their sway, used to lose his head. His disposition was
amorous, and he bore many a lover's mark. He played
draughts a good deal, sometimes even threw the dice.
1643
1526. The treasure, Baber received at Agra was distributed to
his son Humayun and other relatives, army men and also sent to
his relatives in Samarkand and Khurasan:
(May 12
th
) On Saturday the 29
th
of Rajab the examinations
and distribution of the treasure were begun. To Humayun
were given 70 laks from the Treasury, and, over and above
this, a treasure house was bestowed on him just as it was,
without ascertaining and writing down its contents. To
some begs 10 laks were given, 8, 7, or 6 to others. Suitable
money-gifts were bestowed from the Treasury on the whole
army, to every tribe there was, Afghan, Hazara, 'Arab,
Biluch etc. to each according to its position. Every trader
and student, indeed every man who had come with the
army, took ample portion and share of bounteous gift and
largess. To those not with the army went a mass of treasure
in gift and largess, as for instance, 17 laks to Kamran, 15
laks to Muhammad-i-zaman Mirza, while to 'Askari, Hindal
and indeed to the whole various train of relations and
younger children went masses of red and white (gold and
silver), of plenishing, jewels and slaves. Many gifts went to
the begs and soldiery on that side (Tramontana). Valuable
gifts (saughat) were sent for the various relations in
Samarkand, Khurasan, Kashghar and 'Iraq. To holy men
belonging to Samarkand and Khurasan went offerings
vowed to God (nuzur); so too to Makka and Madina. We
gave one Shahrukhi for every soul in the country of Kabul
and the valley-side of Varsak, man and woman, bond and
free, of age or non-age.
1527. The revenue of the country held by Babar in 1528
A.D. from Bhira to Bihar was 52 krurs (judged by Erskine in
1644
1854 A.D. at about Pound 4,212,000).
1528. At the time Babar invaded India, it was governed by
five Musalman Rulers and two Pagans which he described as
respected and independent Rulers. Besides them, there were
many Rais and Rajas in the hills and jungles, held in little
esteem. The seven Principle Rulers are described on page 481 to
484 of Babur-Nama by Beveridge:
At the date of my conquest of Hindustan it was
governed by five Musalman rulers (padshah) and two
Pagans (kafir). These were the respected and independent
rulers, but there were also, in the hills and jungles, many
rais and rajas, held in little esteem (kichik karim).
First, there were the Afghans who had possession of
Dihli, the capital, and held the country from Bhira to
Bihar. Junpur, before their time, had been in possession of
Sl. Husain Sharqi (Eastern) whose dynasty Hindustanis
call Purabi (Eastern). His ancestors will have been cup-
bearers in the presence of Sl. Firuz Shah and those
(Tughluq) sultans :they became supreme in Junpur after his
death. At that time Dihli was in the hands of Sl. 'Alau'u'-din
(Alam Khan) of the Sayyid Dynasty to whose ancestor
Timur Beg had given it when, after having captured it, he
went away. Sl. Buhlul Lodi and his son (Sikandar) got
possession of the capital Junpur and the capital Dihli, and
brought both under one government (88I AH.--1476 AD).
Secondly, there was Sl. Muhammad Muzaffer in
Gujrat; he departed from the world a few days before the
defeat of Sl. Ibrahim. He was skilled in the Law, a ruler
(padshah) seeking after knowledge, and a constant copyist
of the Holy Book. His dynasty people call Tank. His
1645
ancestors also will have been wine-servers to Sl. Firuz
Shah and those (Tughluq) sultans; they became possessed
of Gujrat after his death.
Thirdly, there were the Bahmanis of the Dakkan
(Deccan, i.e., South), but at the present time no
independent authority is left them; their great begs have
laid hands on the whole country, and must be asked for
whatever is needed.
Fourthly, there was Sl. Mahmud in the country of
Malwa, which people call also Mandau. His dynasty they
call Khilij (Truk). Rana Sanga had defeated Sl. Mahmud
and taken possession of most of his country. This dynasty
also has become feeble. Sl. Mahmud's ancestors also must
have been cherished by Sl Firuz Shah; they became
possessed of the Malwa country after his death.
Fifthly, there was Nasrat Shah in the country of
Bengal. His father (Husain Shah), a Sayyid styled
'Alau'u'd-din, had ruled in Bengal and Nasrat Shah
attained to rule by inheritance. A surprising custom in
Bengal is that hereditary succession is rare. The royal
office is permanent and there are permanent offices of
amirs, wazirs and mansab-dars (officials). It is the office
that Bengalis regard with respect. Attached to each office
is a body of obedient, subordinate retainers and servants. If
the royal heart demand that a person should be dismissed
and another be appointed to sit in his place, the whole body
of subordinates attached to that office become the (new)
officeholder's. There is indeed this peculiarity of the royal
office itself that any person who kills the ruler (padshah)
and seats himself on the throne, becomes ruler himself;
1646
amirs, wazirs, soldiers and peasants submit to him at once,
obey him, and recognize him for the rightful ruler his
predecessor in office had been. Bengalis say, We are
faithful to the throne; we loyally obey whoever occupies
it. As for instance, before the reign of Nasrat Shah's
father 'Alau'u'd-din, an Abyssinian (Habshi, named
Muzaffar Shah) had killed his sovereign (Mahmud Shah
Ilyas), mounted the throne and ruled for some time.
'Alau'u'd-din killed that Abyssinian, seated himself on the
throne and became ruler. When he died, his son (Nasrat)
became ruler by inheritance. Another Bengali custom is to
regard it as a disgraceful fault in a new ruler if he expend
and consume the treasure of his predecessors. On coming
to rule he must gather treasure of his own. To amass
treasure Bengalis regard as glorious distinction. Another
custom in Bengal is that from ancient times parganas have
been assigned to meet the charges of the treasury, stables,
and all royals expenditure and to defray these charges no
impost is laid on other lands.
These five, mentioned above, were the great
Musalman rulers, honoured in Hindustan, many-legioned,
and broad-landed. Of the Pagans the greater both in
territory and army, is the Raja of Bijanagar.
The second is Rana Sanga who in these latter days
had grown great by his own valour ans sword. His original
country was Chitur; in the downfall from power of the
Mandaus Sultans, he became possessed of many of their
dependencies such as Rantanbur, Sarangpur, Bhilsan and
Chandiri. Chandiri I stormed in 934 AH. (1528 A.D.)
and, by God's pleasure, took it in a few hours; in it was
1647
Rana Sanga's great and trusted man Midni Rao; we
made general massacre of the Pagans in it and, as will
be narrated, converted what for many years had been a
mansion of hostility, into a mansion of Islam.
There are very many rais and rajas on all sides and
quarters of Hindustan, some obedient to Islam, some,
because of their remoteness or because their places are
fastnesses, not subject to Musalman rule.
1529. From the above it does appear that Babar's visit to
India for its conquest was a well intended plan and fulfillment of
a dream which he had. At page 478 Mrs. Beveridge has written:
"From the date 910 at which the country of Kabul
was conquered, down to now (932 AH.) (my) desire for
Hindustan had been constant, but owing sometimes to the
feeble counsels of begs, sometimes to the non
accompaniment of elder and younger brethren, a move on
Hindustan had not been practicable and its territories had
remained unsubdued. At length no such obstacles were left;
no beg, great or small (beg begat) of lower birth, could
speak an opposing word. In 925 AH. (1519 AD.) we led an
army out and, after taking Bajaur by storm in 2-3 gari (44-
66 minutes), and making a general massacre of its
people, went on into Bhira. Bhira we neither over-ran nor
plundered; we imposed a ransom on its people, taking
from them in money and goods to the value of 4 laks of
shahrukhis and having shared this out to the army and
auxiliaries, returned to Kabul. From then till now we
laboriously held tight to Hindustan, five times leading
an army into it. The fifth-time, God the Most High, by his
own mercy and favour, made such a foe as Sl. Ibrahim the
1648
vanquished and loser, such a realm as Hindustan our
conquest and possession." (emphasis added)
1530. It also appears therefrom that Babur treated himself to
be the third invader who have conquered and ruled Hindustan.
First according to him was Mahmud of Ghazni (also called
Mahmud Ghaznavi), a "Turk" by race, who invaded India on
several occasions and though died in 1030 AD but his
descendants set long on the seat of Government in Hindustan.
The second was Shihabuddin of Ghur (also known as
"Muhammad Ghori") who died in 1206 AD and then the third
was Babur.
1531. It thus appear that Babur did not came to Hindustan
with an intention to spread Islam religion but he had intention to
conquer and rule the country. It is true that Hindustan in the
present form under a single hand could not have been there in
1526 AD and on the contrary it was independently ruled by
several Rulers treating each part as a country but as a whole also
it used to be called by Babar as Hindustan. This is also
evident from page 479 of the aforesaid book where it is
mentioned:
"All Hindustan was not under one supreme head
(padshah), but each Raja ruled independently in his own
country."
1532. It thus cannot be doubted that most of the persons,
who ruled Indian sub-continent at that time were followers of
Islam with whom Baber fought to set up his empire.
1533. About the construction of buildings in general and the
workmen for construction work, on page 520 of "Babur-
Nama" by Beveridge, she said:
Another good thing in Hindustan is that it has
1649
unnumbered and endless workmen of every kind. There is a
fixed caste (jam'i) for every sort of work and for every
thing, which has done that work or that thing from father to
son till now. Mulla Sharaf, writing in the Zafar-nama about
the building of Timur Beg's Stone Mosque, lays stress on
the fact that on it 200 stone-cutters worked, from
Azarbaijan, Fars, Hindustan and other countries. But 680
men worked daily on my buildings in Agra and of Agra
stone-cutters only; while 1491 stone-cutters worked daily
on my buildings in Agra, Sikri, Biana, Dulpur, Gualiar
and Kuil. In the same way there are numberless artisans
and workmen of every sort in Hindustan.
1534. There is mention of buildings in Babur-Nama at
different places including temple of Gwalior, mosque at Delhi,
Agra, Gwalior and other several places but it is true that neither
there is mention of demolition of any religious place by Babar in
Awadh area nor there is anything to show that he either entered
Ayodhya or had occasion to issue any direction for construction
of a building and in particular a Mosque at Ayodhya.
1535. The Babar's camping at Ghaghar has also been
described by William Erskine in his book History of India
under Baber (May 1845), though published for the first time
in 1854 after his death (Book No. 65) (Published in 1994 by M/s
Atlantic Publishers and Distributors). Erskine came to India in
1803 AD as Secretary of Sri James Mackintosh at Bombay and
later came to be appointed as Master in equity in the Recorder
of Bombay Court but had to leave India in 1823 on suspicion of
embezzlement. He was born in 1773 and died in 1852. After
return from India he spent rest of his life in Scotland occupying
the post of Provost of Saint Andrews in 1837-38 AD. It says:
1650
Baber, having brought the war of Chanderi to a
conclusion, lost no time in marching to meet the danger
that threatened him in the East. Having repassed the
Jamna, he proceeded without intermission towards Kanauj.
On the road, he learned that his suspicions of Sheikh
Bayezid's fidelity had not been unfounded. That chief had
joined Baban and Maaruf, the leaders of the revolt, with
his whole army; so that Baber's troops had been compelled
to retreat across the Ganges, to evacuate even Kanauj and
to fall back on Raberi, movements that had enabled the
enemy to take Shemsabad, a rich town in the Doab, by
storm.
1536. In History of India under Baber by William
Erskine (Supra) on page 87, there is a footnote showing that
Mir or Mirza was a title:
The princes of Taimur's family, even those who held
the supreme power, had not yet assumed the title of shah or
padshah, king of emperor; they were called Mir or Mirza,
and often Sultan. In the text, however, the ruling prince is
often called King, for distinction's sake; following the
usage of historians in general, and even of Baber himself.
The title of Sultan was not confined to the sovereign, many
chiefs, and children of chiefs, especially among the Moghul
tribes, being called by that name, which is an Arabic term,
nearly equivalent to Lord. The titles, Mir, Mirza, and Shah,
came also, in process of time, to be very commonly given to
religious guides and holy men, or mendicants, and, from a
sort of flattery, were often continued to the descendants as
part of the family name. The title of Mirza, in later times,
has been lavished by common usage on secretaries and
1651
clerks; and in general on all who pretend to learning.
Mirza is merely mirzadeh, son of a Mir.
1537. The reference of Oudh in the said book of Earskine is
on page 406, 443 and 450. Referring Lodhi dynasties
expansions on page 406-407 Easrskine has written:
Behlul's son, Sultan Sekander Lodi, a prince of
talent, in a reign of thirty years, enlarged the kingdom still
farther. In the Est, he subdued Behar, the last province that
remained in the possession of the Sherki kings; and even
advanced into Bengal, where Sultan Husein Shah had
taken refuge. By a convention concluded with Sultan Ala-
ed-din of Bengal, it was agreed, that Sekander should
retain Behar, Tirhut, Sirkar Saran, and all that he had
conquered; that he should not again invade Bengal; and
that neither prince should support the enemies of the other.
On the west, he gained possession of Dhulpur and
Chanderi, and received the submission of the Raja of
Gualiar and and other princes; so that, at his death, his
kingdom had attained a very great extent, containing the
Penjab, the Doab, the provinces of Oud, Laknau, Juanpur
and Behar, besides a wide tract of country to the west of
the Jamna, from the Satlej to Bandelkand. These extensive
possessions, however, though under one king, had no very
strong principle of cohesion. The monarchy was a
congeries of nearly independent principalities, jagirs and
provinces, each ruled by a hereditary chief, or by a
zemindar or delegate from Delhi; and the inhabitants
looked more to their immediate governors, who had
absolute power in the province, and in whose hands,
consequently, lay their happiness or misery, than to a
1652
distant and little known sovereign. It was the individual,
not the law, that reigned. The Lodi princes, not merely to
strengthen their own power, but from necessity, had in
general committed the government of the province, and the
chief offices of trust, to their own countrymen, the Afghans;
so that men of the Lodi, Fermuli, and Lohana tribes, held
all the principal jagirs; which, from the habitual modes of
thinking of their race, they considered as their own of right,
and purchased by their swords, rather than as due to any
bounty or liberality on the part of the sovereign.
1538. Again on page 441-443 while referring political
condition of the area under rule of Ebrahim Lodhi who was
defeated by Babar in April 1526 AD, Earskine has said
(including the description of political sovereignty on Ayodhya):
But, though Baber had been victorious in the field,
and was in possession of the two great capitals of the
kingdom, it soon appeared that his situation, far from being
one of safety or ease, was surrounded with difficulty and
danger. He and his army were strangers to the people
whom he had subdued; and a mutual dislike soon
manifested itself between his soldiers and the inhabitants of
Agra, his head-quarters. The peasantry, as well as the
fighting men of the country, shunned and fled from his
followers. The north of India, at the time of Baber's
conquest, still retained much of its original Hindu
organization; its system of village and district
administration and government; its division into numerous
little chieftainships, or petty local governments; and, in
political revolutions, the people looked much more to their
own immediate rulers, than to the prince who governed in
1653
the capital. Except at Delhi and Agra, the inhabitants
everywhere fortified their towns, and prepared to resist.
The invasion was regarded as a temporary inundation, that
would speedily pass off. Every man in authority raised
troops, and put himself in a condition to act. Those who
held delegated authority or jagirs, being generally
Afghans, were consequently hostile to the new state of
things. They soon came to an understanding among
themselves, and took measures for mutual co-operation.
Raja Hasan Khan of Mewat, in the neighborhood of Agra,
was the grand instigator of the opposition; which was
supported by Nizam Khan, in Biana; Muhammed Zeitun, in
Dhulpur; Tatar Khan Sarang-Khani, in Gualiar; Husein
Khan Lohani, in Raberi; Kutb Khan, in Etawa; Alim Khna
Jilal Khan Jighat, in Kalpi; Kasim Sambhali, in Sambhal;
and Marghub, a slave, in Mahawan, within twenty kos of
Agra. Indeed, all of these chiefs were immediately around
Agra, or close upon its borders. They looked for aid from
Rana Sanga, the powerful chief of Cheitur; who, on his
part, laid claim to a great part of the right bank of the
Jamna. These Western Afghans wished to place Sultan
Mahmud Lodi, a Brother of the late Sultan Ibrahim, on the
throne of Delhi; and so to preserve the Afghan and the
Lodi dynasty.
In the Eastern provinces of Juanpur and Oud, the
opposition presented even a more regular form. There, the
confederacy of Afghan chiefs, who had been in open
rebellion against Ibrahim for two years before his death,
still continued. The revolt was originally headed by Nasir
Khan Lohani, Maaruf Fermuli, and others. The insurgents,
1654
we have seen, had elected Baber Khan Lohani, the son of
Deria Khan of Behar, for their king; and proclaimed him,
under the name of Sultan Muhamed Shah. They now
possessed, not only Behar, but nearly the whole territories
of the old Sherki monarchy, especially the country on the
left bank of the Ganges; and had even crossed to the right
bank of the river, and taken possession of Kanauj, and
advanced into the Doab. Sultan Ibrahim had sent an army,
under Mustafa Fermuli and Firuz Khan Sarang-khani, to
reduce the rebels to obedience. Mustafa had met the
revolted chiefs, and defeated them in some well-contested
actions. On his death, which occurred some time before the
defeat of Sultan Ibrahim, he was succeeded in the
command by Sheikh Bayezid, his younger brother. The
army under his orders was formidable; and it was
naturally to be expected, that, changed as circumstances
now were, the two armies opposed to each other in the
field, being both Afghans, would lay aside their mutual
animosities, and, animated by national feelings, unite to
expel Baber, the common enemy.
1539. The Afghan Chiefs who rule in various territories of
India without any subordination, when realized that the Babar
may settle in India ending their unlimited authority, their further
action is described at page 443/444:
It was clear that the Afghan chiefs, who till now had
ruled with nearly unlimited authority both in Delhi and
Behar, must be ruined if Baber settled in Hindustan, They,
therefore, stirred up, with great success, the apprehensions
of the natives, whether Musulman or Hindu, by the most
false and groundless reports. The people of the country
1655
were told, that they had every thing to dread from their
barbarous invaders; that they would be robbed of their
property; that their wives and children would be
dishonoured; their temples profaned or destroyed. Baber
and his army had reached Agra in May, in that climate the
hottest season of the year. The inhabitants, in terror, fled
before them, and abandoned their dwellings, so that no
grain or provender could be procured for man or beast.
The villagers fled to the waste, and infested the highways,
plundering and robbing on every side. The roads became
impassable. Baber's force was so small that he was unable
to send out detachments sufficient to protect the different
districts. To add to these difficulties, the heats that year
happened to be uncommonly intense, so that many of his
men, who were from more temperate climates,
unaccustomed to the burning sun of India, dropped down
and died on the spot.
1540. However, the manner in which the Babar manage the
things has been said on page 446 showing that Awadh was
assigned to Bayazid Fermuli. To take possession of the assigned
territory, Humayun moved alongwith army and on page 450 it
has mentioned:
Humayun, after putting to fight the Afghan army,
crossed the Ganges and took possession of Juanpur. He
next marched to Ghazipur, intending to attack Nasir
Khan's army, which had retired into that neighborhood.
But the Afghans, on his approach, retired behind the
Gogra, as it would appear, into the territory of Bengal; and
a detachment that he sent to pursue them returned, after
plundering the country of Kherid and Behar. Having thus
1656
expelled them from the Juanpur territory, he left Shah Mir
Husein, in the city of Juanpur, supported by Sultan Juneid
Birlas with some of his best troops; and Sheikh Bayezid in
Oud, with every means of maintaining the country; and
then, in compliance with orders which he received from his
father, recrossed into the Doab; and marching back by
Kalpi, of which he gained possession by the submission of
Alim Khan, rejoined the Emperor at Agra, bringing Alim
Khan along with him.
1541. The movement of Babar in the last week of March
1528 AD near Awadh is described on page 487:
The Emperor sending Sultan Chin Taimur, with a strong
force to pursue them, himself advanced and occupied
Laknau on the 21
st
, and passed the Gumti. Moving again in
pursuit of the retreating enemy, he encamped, on the 28
th
,
four or five miles above Oud, at the junction of the Gogra
and Sirwu. Till then, Sheikh Bayazid had maintained his
ground beyond the Sirwu, and had prevented Sultan Chin
Taimur, Baber's general, from crossing. Being now
reinforced, however, Chin Taimur effected a passage, and
found the Afghans in full retreat. He followed them with
great alacrity, slew numbers of them, and dispersed their
army. Sheikh Bayezid threw himself into a jungle and
escaped. Chin Taimur, after a pursuit of sixty miles,
reached a spot which the families of the fugitives had left
but a short time before. The light force was now divided
into several parties, who followed the flying enemy in
different directions. Their baggage and families were
overtaken and seized; and several Afghans brought in as
prisoners. The success was complete.
1657
1542. Here also there is no mention of anyone as Mir Baqi or
about entry of Babar in Awadh. It was submitted that there was
no occasion for Babar either to demolish a temple or to
construct a mosque at Ayodhya in 1528 AD.
1543. On page 443, he has described the state of affairs at
Ayodhya in 1526 that the Afghan Chief at Oud revolted against
Ibrahim Lodi about two years back his death and the revolt was
originally headed by Nasir Khan Lohani, Maaruf Fermuli and
others. After the death of Mustafa Fermuli, Sheikh Bayezid
succeeded him in his command who was his younger brother.
1544. On page 450, he mentions that Humayun after taking
possession of Jaunpur left Shah Mir Husein thereat supported by
Sultan Juneid Birlas along with some of his best troops and
Sheikh Bayezid in Oud along with every means of maintaining
the country and thereafter crossed Doab and marched towards
Kalpi of which he gained possession after surrender of Alim
Khan and immediately thereafter he rejoined the Emperor at
Agra. In 1527, Babar proceeded on his march to fight against
Rajputs where he defeated Rana Sanga. This victory has been
described on page 473, Erskine's History of India (supra) as
under :
No victory could be more complete. The enemy were quite
broken and dispersed. The whole fields around were
strewed with the dead, as well as the roads to Biana and
Alwar. Among the slain were Hasan Khan Mewati, who fell
by a matchlock shot; Raul Udi Singh, of Dongerpur; Rai
Chanderbhan Chohan; Manikchand Chohan, and many
other chiefs of note. Baber directed a tower of heads to be
erected; on a rising ground near the camp; and henceforth
assumed the proud title of Ghazi, Victorious in a Holy War.
1658
Rana Sanga himself escaped; it is said by the devotion of
some of his followers, who threw themselves in the way of
the pursuers, and sacrificed their lives for his safety; and
the regret expressed by Baber for not having urged the
pursuit in person has reference probably to the escape of
his illustrious rival. It is remarkable that, since this defeat
of Rana Sanga, no Rana of Cheitur has ever taken the field
in person against any of the princes of the House of
Taimur. When these princes were along with their armies,
the Rana's troops have been entrusted to some eminent
Rajput chief, the Rana himself withdrawing to some one of
the hill-forts of his country.
1545. Baber returned to Agra on 25
th
April, 1527 and,
thereafter, gained Chandwar, Raberi and Etawa which were
surrendered by Kutb Khan who held it. The victory of Babar
within a year after defeat of Ibrahim Lodi against Rajputs and
others has been described on page 477 of Erskine's History of
India (supra) as under :
That battle has broken the power of the Afghans in India,
as that of Kanwa had since broken that of the Hindu
confederacy. He had evinced, to every class of men in the
country, the decided superiority of his arms; and, with his
mental resources, the awe inspired by his hardly northern
troops, and his own bravery and conduct, the conquest of
every part of India seems to lie open to his arms.
1546. Baber took some rest as mentioned on page 478 of
Erskine's History of India:
During the rains he visited Sikri, Dhulpur, and
Bari, proceeding as far as the Chambal; he thence returned
to Agra; and went to Kol or Koel in the Doad, and on to
1659
Sambhal, beyond the Ganges, returning by a different
route.
1547. He, thereafter, planned to march against Afghans of
the East, who still held out, in considerable force, beyond the
Ganges and in Behar and some of the Hindu chiefs in the West
whose confederacy he had felt to be so formidable, i.e. Medini
Rai of Chanderi. After defeating Medini Rai at Chanderi, he
proceeded to East, i.e., Kanauj. On page 484, Erskine's History
of India, it is said that the Baber got information that his
suspicion of Sheikh Bayezid's fidelity are not unfounded.
Bayezid had joined Baban and Maaruf, the leaders of the revolt
with his whole army. As we have already noticed Sheikh
Bayezid was posted at Oudh by Humayun to look after that area
but on joining revolt, Baber had to move to Oudh. He reached
near Ayodhya (Oudh) on 28
th
March 1528 A.D. and has narrated
the events which took place thereafter as under :
The light force was now divided into several parties, who
followed the flying enemy in different directions. Their
baggage and families were overtaken and seized; and
several Afghans brought in as prisoners. The success was
complete.
1548. Here also we do not find anything so suggest that
Baber either entered Ayodhya or gave direction to anyone to
construct a Mosque or to demolish a temple so as to construct a
mosque.
1549. Lastly, we have Hindi Translation, i.e. Mughal
Kaleen Bharat Baber (1526-1530) by Sayed Athar Abbas
Rizvi (Supra). In the chapter titled as Review Rizvi has
observed that due to lack of confidence on Afghans, Baber
already separated them from his army except a few one of
1660
confidence. Commenting on construction activities and
available revenue on page 44, Chapter Review, Rizvi has said:
i|n , i s i| i -l-n in ri n| i|
i liii iin r ini - i- li ni ii| r -i i r -i
r-| l in i- in lri
|ii nii i|-i -ii i i -i
-ii i li| ini ii i i| ;| i |
ini i ni i i- li i ii ri - n
i i li ni ii| lr -ni - i| ln ii i,ln
i i li i lli ii i i i lii -
nii ri iiln -iiln i l nii li i l n
l | s i iii - l--ln l n | ln l i|
l -i i i i ni i i i i i
i i i i r| i -i i i | zz - rzs ; o
nin - r lini r l ; | - l nii ; ilr-
r| ini iii i n ri ni| n r-lni s
i r iir| ii r i l - ri , | i-n |,
- i- nii ni i ii n r n | r -
oo - so |i - ili |
1550. On page 46 Rizvi says :
ii-i - n-i| lli ini | -i (i- ) | i|
i | n; r | ; ii l i; | lnln
;lnrii - i- -i - ;ni i| ni l| n i
r| in rini ii-i i r nin -n -r- i r | ii-i
r i| ni ni r l - n l r -ni --n
i l -, i | n l - l r ri n i | -in i| |
| - n i i - i| | l-i; ri n| i|| i |
n--i| -i l- l, r | ii-i nini i
lr -ni -i r n iini - i - i n rin i
ri ni li| ii n i i l ir n i nii
r| i n i| r| ~nii ;lnrii - -i i i
;| n - i li i n r i r li i r| i - i n
1661
r | ; lnln r iiln - i| ;| i
lin -iii i in rini ii| i-i | | n| | i n
r r lini r l,; i i (| i ; -n ) r|
lii; n|| ; - - -|i r| ; ii i r n
si -|si -| i i i|| n| -| n i-i li| r nii
iiln - iii - | -| in r | r-i
in- i| i ii - - s in n| - - n |
ii-i r i| ni ni r l ~ni l
ii - ii - i i i l-i i ii ii ri + i;
ii i ri ni ii, l r n | n| in| i||
; n| - ni i| ii|
1551. Again on page 48, the Rizvi has mentioned about
Baber's observation regarding workmen in India and says:
r lini r l lr -ni i r n i n i r r l ri r
i r i i i i|n i in r| -
i nii i l ilni lln r i lni i lni
lni - r| i n| | i r| r| - ~i i n|-
n | -i | -l- l-i i li - ; in i li
i li r l ;- i; i, i, lr -ni nii ii
zoo -i i- i i ii i- n i ln ini - r|
;| ini -i i- ii - cso ln - ini ii
l-i i - i n i| - ini, ||, ii, i , il
nii i ii l-i i - s -i i- i iii i
n i | ;| i lr -ni - - i nlin li~i
nii i|n r|
1552. The constrtuction activies in India have been detailed
on page 49-50 by Rizvi in Mughalkalin Bharat as under :
l r -ni - l -i i i
ri, n , r, ii ii l-i i | l i||
i nii n | - i lr -ni in r lli -iii
r n | ;-in , n ;-il i | lr -ni r ini,
||, ii , i, il nii -iii l-i ii
1662
i |
| iii| ini i n -i i ~ni l i |
- r| i-i r i ii| ; iii| r| - rn| i||
~ni |i iir n n ii ln- ii r| -n|
iin lli i -n ri n i | ln- l ~ni |
iiir| ni r| i- n r| |l-n r n; i|| ~ni ri
i li - l i lri - - n|n r i| ~ni l
i| - - nl r n iin l ilri - n ri n i ln
i - iiln -iiln ri | i|| | ii i i
- i l nii ;-ii, il, ii, i| -in
li l- r i -ii nii i ni -in ii l-
i ~ni l i | i ini i i |
ini | ln i li ii - ini i li ln
in ri || ri i i| -in r| ii | ii
i n i | ln i ii -iiil r| i|| i|
~nii i lnni | l- i i| l-i ii l ri n i
i | i i - n ini - li i i
ni , i i , r--i -, i ;- i l i l -i i i i |
l-i ii l l i | ini l-
r| - i i ln i l- | - ii || nl i i l- |
n; r i| ln l| s| i l- ii
ii r| i l- | || ri i iin ii iir| in
nii i i- rn lrn ii| ini - -r i |
r--i-i l-i i ni | i i| r ; | r lini r , - n
lr -ni | n| ini | i ii i| n-|, ii| nii i | ;
n|i r--i-i ,ii r| ii ri n| r| ri i nii ii| r i
i` n-| - r ;ni li -i ri ini r l i n -
ii i nn r| i| i, i i , | nii -|i
i i| ri r| i ; s| il- l-| r| ri ri lrn
i nii -n- i ii ;-il i l-i i i li| iri
nii |i -i r- ri i| -ni ni n | i
l i; rn r , - ln i | ; n ni
1663
i lnln -n | i| i; i ~ i li r | i
i| ini iin l-i i r| i; i l-i i
i-i i li ii| ;- r - i| nii ni l ,ii
l ri|i| ri ni r i + nii - ini ii| i i -
zz n-n rz/ ; o i ri| i -i sni -ii
ri l-i i i i i li| ri -l - i |
i ; | r - rzs ; o i r sni ri i l|ii
l - r i| i i ,i i|ii ln |ii r i ii|
s -i i- ii i i ii li l ri
| | nr l| - i i | rini
|i i i | ; i i -i | i i -
|ii i li ii| ;| i || - i| rz/
; o r| in ni i i i li ii ln -
rzs ; o i r || r i ni r in | |i nii
l-i ii n - r i n l ini l r i li
ni ii, i ni i i| ||
in i - nii ii ni i| | l i|| i -
r in ri i i | - ni; | rzsz; o
- ri ii i iln iri nii |i i
l li ni in i - , i i - -in ross; o -
nii ii, i ni | ; ri ni i|
ni i i ; i - | ni l- | i||
n iii nii ii - i| lii | lr -ni - i|
i | i i i ni i - li| ~i
i i i ii i i ini - i ni | z rzs
; o i r s i l-in r i ni i i
r i| ;| i i ini rn lrn i- ni -
-n- n | i ni i i| ii li ii| z rzs
; o nin - r lini r l i i n - n -i| i
n i i i| lr -ni - ; i i nii n
ni - n | ni r ; |
1553. Rizvi has also not found Babar's entry in Ayodhya or
1664
construction of a mosque or direction to anyone including Mir
Baqi for construction of any building at Ayodhya.
1554. Some of the authors have appreciated the character of
Babar depicting him a holy, religious, kind hearted brave man
having respect for all the religions etc. This is placed before us
to deny even a possibility that Babar could have ordered to
construct a mosque in a religious place of others.
1555. Dr. Radhey Shyam in his book "Babar" (supra) on
page 441 has observed that Babar was what his fortune and
misfortune, man and environment, his foes and friends, his joys
and sorrows had made him. He was a soldier, a born warrior, a
seasoned statesman and an accomplished diplomat, a loving
husband and a man of many virtues seldom to be found in one
single individual. Dr. Radhey Shyam thereafter referred to the
comments of Abul Fazl about the qualities of Babar, describing
him as "bakht buland, himmat arjumand, Qudarat Kishwar
kushai, mulkdai, Koshish dar mamulai balad, Sarfi niyat bar
Rifayat abad, Khushdil wakhtan sipahi, zabt ashar az tabahi
(Akbar Nama)". This appreciation by Abul Fazl is
understandable since he had to show great regards to the
grandfather of the Emperor in whose regime, he was employed.
1556. Dr. Radhey Shyam has further referred to the
comments of Nizamuddin Ahmad (Tabqat-i-Akbari), translation
II, page 40, Mirza Haidar Doghlat, the author of Tarikh-i-
Rashidi. Dr. Radhey Shyam proceeded to characterise Babar as
charitable, benevolent, liberal, kind, just, adjustable
temperament, robust vigour and dynamic personality. On page
443 Dr. Radhey Shyam said that "he was deeply imbued with
humen feelings." On page 444 Dr. Radhey Shyam said that "he
followed his religion like a comman man without allowing it to
1665
prejudice his mind against the followers of other religions. Even
after the conquest of Hindustan he continued to maintain such an
attitude." On page 447 he observed that "he never worked under
the influence of religion. . . . . . To him Shias and Sunnis were all
alike."
1557. We would not like to make any comment on the above
observations as if we are sitting in appeal over the work of
learned author but suffice it to mention that the learned author
has ignored what is contained on page 554-555 of Beveridge's
Baburnama (supra) where the breaking of the wine couplets in
pieces has been compared with the dashing of the God of the
idolaters. To the same effect is what has been translated by
Rizvi (supra) also.
1558. Besides, we may refer at this stage the own
observations of Dr. Radhey Shyam on page 451 of the book:
"As regards the destruction of the HIndu temples
there is historical evidence both in Babar's support and
against him. During the course of his campaigns or
pleasure trips Babar occasionally came across large
number of Hindu temples. These temples provoked great
interest in him. Some of them he visited and appreciated
their architectural beauty. While at Gwalior in 1528 Babar
visited the fort, wherein he saw the places of Raja Man
Singh and Vikramaditya. On the west of Rahim Dad's
garden he saw a "Lofty idol house." This was famous Teli
Mandir which is said to have been constructed by Raja
Man Singh's Gujari wife Mrignaini. Then in the Urwa
valley he saw the idol statues and he writes, "three sides of
the Urwa valley are solid rock, not the red rock of
Bayana but one paler in colour. On these sides people
1666
have cut out idol - statues, large and small. One large on
the south side being perhaps 20 qari (yards) high. These
idols are shewn quite naked without covering for the
privaties, " writes that, "we rode ....to visit the idol-
houses of Gualiar. Some are two, and some are three
storeys high, each storey rather low, in the ancient
fashion. On their stone plainths are sculptured images.
Some idol-houses in College fashion, have portico, large
high cupola. In the lower celles are idols carved in the
rock. Except in the case of Jain idols in the Urwa valley,
Babar never gave orders for the destruction of the
temple of other places. As regards the Jain statutes of
the Urwa Valley he himself has mentioned, in his
Memoirs that the, "naked idols are its defect, I for my
part ordered them to be destroyed." It is rather doubtful
whether this order was ever carried out. Mrs. Beveridge
in a brief note writes that, "they were already in a
mutilated conditions and they continue to be so until the
Jains repaired them with coloured plaster." (emphasis
added)
1559. Thereafter, he has considered an inscription found at
Jami Masjid at Sambhal (in the State of U.P.), which is said to
have been constructed by demolishing Hari Mandir out of the
debris of that temple:
It is related that at his orders famous Hari Mandir
at Sambhal was demolished and a Jami mosque was
constructed out of the debris of that temple by his famous
general Hindu Beg. An inscription on one of the walls of
the mosque reads :
1667















Translation by author"
The Collector of the buildings of grace and beauty the
raiser
of the standards of rule and faith,
the spreader of the wings of peace and tranquillity, the builder
of the buildings of knowledge and deed,
Muhammad Babar, a Jam in dignityMay God Almighty have
him in His protection,
Kindled in India the lamp of power, when a ray of it fell
upon Sambhal,
To build this mosque may it be protected from destruction
and decay,
He gave orders to his mean slave, who is one of the principal
officers,
Mir Hindu Beg, the intelligent and wise who is an example to
others in polite manners,
And when in consequence of the order of the sovereign of the
world by guidance of Providence to the mosque was
completed.
1560. Its date is first day of the month of Rabi L 933 H.
(December 1526 A.D.)
1561. Dr. Radhey Shyam, however, has then doubted
1668
correctness of the contents of the said inscription on pages 454-
457:
This inscription clearly mentions that at Babar's
orders the mosque was built and completed on the first day
of the month of Rabi-ul-Awwal 933 H./6
th
December 1526
by Hindu Beg. But it is quite surprising that Babar who
was quite festidious in mentioning about everything that
concerned him or even others, has not mentioned about the
construction of a mosque by Hindu Beg at Sambhal. Nor
did he mention that he gave orders to Hindu Beg to
demolish any Hindu temple and construct a mosque over it.
There is no reference to any order for the destruction of a
Hindu temple and construction of a mosque by Hindu Beg
at Sambhal in his Memoirs. Babar visited Sambhal in
Sept.-Oct. 1527 and stayed there for three days but in his
Memoirs he does not say a word about the fanatical
activities of Hindu Beg there. His annoyance at the
destruction of the Hindu temple by Hindu Beg at Sambhal
is reflected in his silence and his indifference towards the
whole affair. During the years 1526-27 his position in
Hindustan was so precarious that it was not possible for
him to take any drastic action against any general, Hindu
Beg being one of them; even though they might have
continued to commit gruesome acts in the name of their
master. However, it is definite that though Babar's name
was associated with the construction of the mosque, as was
the prevailing practice, the Hindu temple was not
demolished at his orders. Hindu Beg might have
demolished the temple on his own account and even did not
care to refer this matter to his master.
1669
Nevertheless, the whole affair has aroused
controversy. Mr. Carlleyele is of the opinion that the Jami
mosque which is still standing amidst the beautiful
surrounding was not constructed by Hindu Beg and it is of
much earlier period. The district Gazetteer of United
Provinces (Moradabad) mentions that Babar's inscription
in the mosque is a great historical forgery of all times.
And the account of the temple and the mosque given in it is
as follows: 'The erection of Hari Mandir is variously
ascribed to Prithviraj, to a Raja named Jagat Singh and
one Nar Singh, the grandson of Raja Vikram Sen one of the
Dors of Baran. This temple no longer exists and its place is
taken by a striking mosque, which forms the conspicuous
feature in the landscape for miles around. This building is
mainly of stone, which is certainly the material employed
for the great central dome, for the outer walls and porch
and for the flooring of the broad courtyard. In 1874 Mr.
Carlleyele visited and inspected the mosque and was
convinced that the dome was of Hindu workmanship, but
the bricks were of Musalman workmanship. The whole of
the mosque is coated with plaster so that it is impossible to
ascertain the material. The wings are divided by a lateral
row of pillars into two aisels and each had three arched
openings on the courtyard. A flight of stone steps on either
side gives access to the roof of the mosque, from which fine
view of the town and the surrounding country can be
obtained. Mr. Carlleyele came to the conclusion that the
conversion of the temple into a mosque was of very
recent date. He based his decision on the fact that there
has been recent litigation on the subject of the site between
1670
the Musalmans and Hindus and appears to have been
influenced by the arguments of the latter to the effect that
the old inscriptions on the mosque walls were impudent
forgeries. This claim of the Hindus was of course rejected
in the civil courts. Mr. Carlleyele could not see the
documents going back to the days of Jahangir, now in
possession of the guardians of the mosque. General
Cunningham has repudiated the suggestion that the
inscription were not genuine. The most important of these,
states that the mosque was built by Hindu Beg at the orders
of Babar in December 1526. It is certainly curious that the
temple should have remained till that date, for Sambhal
had long been the seat of the Muslim government, and it is
even more surprising that a noted inconoclast like Sikandar
Lodi should have allowed a building of such sanctity to
stand in his temporary capital. . . . . . But the mosque at
Sambhal might well be older than Babar, to judge from its
appearance. The architecture resembles that of Pathan
buildings such as great mosque of Badaon and the huge
sloping bastions on the west. The whole structure is very
plain, severe, and massive, and if the Hindu materials have
been employed the ornamentation has been very effectively
concealed, since the only traces of Hindu covering visible
are two rosettes on the stone slabs of the steps leading from
the eastern gateway to the quadrangle. In the middle of the
latter is a tank and fountain, filled from a large well
outside the gateway. Whether Babar built it or simply
repaired the mosque cannot be positively stated, but it is
curious that the Ain-i-Akbari has referred to the celebrated
temple of Vishnu at Sambhal. An inscription in the south
1671
wing states that Rustam Khan Deccani repaired the
mosque in 1657, while a similar tablet in the north wing
was erected by one Sayyid Qutb in 1626. The two
inscriptions above the outer and inner arches of the central
chamber record the restorations affected by the Musalmans
of the town and district about 1845. Thus Carlleyele's
report asserts that Jami Masjid of Sambhal is of earlier
date (ii) the inscription is fake (iii) that it was constructed
much later.
But the arguments given against the construction of
the mosque by Hindu Beg are not tenable. Had the mosque
been of earlier date there should have been an inscription
on it bearing the date of its construction. The grounds on
which the inscription which assigns the construction of the
mosque to Hindu Beg, has been declared fake, have not
been indicated. Then the report itself records that in the
mosque at places the use of the debris of a Hindu temple is
visible. In addition to it may also be observed that ever
since the occupation of Sambhal by the Mughals in
December 1526 or a little earlier till the date when it was
conferred on Humayun in jagir, the position of the Mughals
there had always been very precarious. This is borne out
by the fact that after its occupation Ali Yusuf was appointed
to hold its charge. After his death Abdullah Kitabdar was
sent and thereafter Hindu Beg and both of them returned to
Agra after a few days and waited on Babar. Why did they
return from there without being summoned to emperor's
presence? Babar does not mention the reason which forced
them to return from Sambhal. Nor does any other
authority. It can however be presumed that the Hindu
1672
population which was so hostile to Hindu Beg did not
permit him to stay there any longer and to continue to
display the zeal of a fanatic. Nor did Babar like to send him
again to Sambhal. Even if it is conceded that the mosque is
of the earlier date, it can be presumed that its repair by
Hindu Beg was not liked by the Hindu population.
1562. In the subsequent part Dr. Radhey Shyam proceeded
to consider Ayodhya dispute also as a parrelel to the Sambhal's
building.
1563. But if we consider what has been writeen in
Babarnama by the Babar in straight words without twisting or
mincing them we find that like any other brave, couragious,
tactful but brutal warrior, Babar also possess all these qualities.
It is true that he was truly religious but it means that he was a
complete Islamic person and lacked tolerance atleast to the idol
worshippers. He had no hitch in destroying idols worshipped by
the inhabitants of India at that time and this we find very visibly
from the words which are translated by Mrs. Beveridge from
Babar's manuscript of "Tuzuk-i-babri" as is evident from page
554-555 as under:
"And I made public the resolution to abstain from
wife, which had been hidden in the treasury of my breast.
The victorious servants, in accordance with the
illustratious order, dashed upon the earth of contempt and
destruction the flagons and the cups, and the other utensils
in gold and silver, which in their number and their
brilliance were like the stars of the firmament. They
dashed them in pieces, as, God willing! soon will be
dashed the gods of the idolaters,--and they distributed the
fragments among the poor and needy." (emphasis added)
1673
1564. In respect to the inhabitants of Hindustan, at page 518
of the aforesaid book it says as under:
"Most of the inhabitants of Hindustan are pagans;
they call a pagan a Hindu. Most Hindus believe in the
transmigration of souls. All artisans, wage-earners, and
officials are Hindus. In our countries dwellers in the wilds
(i.e. nomads) get tribal names."
1565. Like other invaders whenever he defeated the local
Rulers, his army did all such acts of loot, general massacre etc.
While conquering Sambhal on page 528 the act of the army of
Babur is mentioned as under:
"Malik Qasim cut off the heads of part of his force,
took many horses, a few elephants and mass of booty."
1566. After defeating Rana Sanga and his other supporters,
at page 576 of the Babarnama by Beveridge it is mentioned
that as a trophy of victory an order was given to set up a pillar of
pagan heads on the infact-hill (koh-Bacha) between which and
his camp the battle had been fought.
1567. Similarly, on page 587 of the aforesaid book on 27th
September, 1527 AD he mentions:
"Humayun had left Darwish (-i-ali) and Yusuf-i-ali in
Sambal; they crossed one river, fought Qutb Sirwani and a
party of rajas, beat them well and killed a mass of men.
They sent a few heads and an elephant into Kul while we
were there." (emphasis added)
1568. Though in the army of Babur Hindustani soldiers were
also included but it appears that he did not repose much
confidence therein as is evident from page 547 of the aforesaid
book:
"As little confidence was placed in Hindustani
1674
people------------"
1569. As an invader Babar entered the Indian subcontinent,
conquered it and did what he could or found necessary to claim
victory which nobody can comment atleast today. It is said that
all is fair in love and war and laws of war are not set by pen
since they are decided in a war field by those who are fighting
or by their commanders. Discussion may be held as to whether
the manner in which a war took place, fought and the action of
the soldiers therein was justified or not but the fact remains that
before the matter has been taken in 20
th
Century by various
countries to lay down certain principles to be observed during
war and also recognise certain rights of prisoners of war, prior
thereto no such principle in general were observed by the Rulers
of different countries though at local level some kind of practice
with respect to time etc. might have been followed. What had
been done several hundreds years back by a king invading a
country or between war of two kings is obviously beyond the
pale of judicial review of this Court and of any Court
functioning in independent India after the promulgation of our
Constitution on 26.01.1950. We have not been shown of any
authority by any learned counsels that we can examine the
legality, correctness or genuinity of an action of a Ruler prior to
the enforcement of British enactments in the subcontinent.
1570. However, the attempt by some of the authors to glorify
or justify brutal massacre or action of some of the invaders or
Rulers even if they might have conquered the subcontinent, by
providing justification, explanation etc. is not understandable for
the reason that the things which are evident and straight cannot
be clothed with a velvet cover and would not provide a shell to
give it a different colour. It shall only mislead the public at large
1675
and in particular the students of history. In our view, the
historical events must be placed straight without any distortion,
without any addition of words and without providing any
explanation or justification in the words of the author as the
same would be nothing but a sheer conjecture and surmise. If
we claim that Babar felt happy having seen the mound of human
heads and still we tell somebody that he was a kind hearted
religious man, had no love for violence it would a blatant lie.
This kind of attitude on the part of some of authors whose work
has been placed before us for our consideration shows that these
authors can go to the extent of glorification of any kind of
misdeed which in the present day's civilised society can never
appreciate or swallow. If innocent persons are killed either in
terrorist activities or naxalite activities, in our view the action of
these persons ex facie is inhuman, amounts to henious offence,
deserved to be condemned without mincing words so as not to
dilute the degree of violence and atrocity committed by them
irrespective of the purpose, objective or whatever is behind such
activity. Any other view is nothing but a serious contempt to the
very mankind and would be a clear disrespect to those innocents
who become victim of such incidents. Though the present days
activities may not have any comparison with the wars and
battles fought hundreds and thousands years back but to find out
a positive character in such activities of the the Ruler/Kings
under whom the army had done all these kind of brutalities
would be a thought of abnormal minds. The lack of respect of
Emperor Babar to idols meant for worship has already been
demonstrated above and is fortified from what has been
mentioned at page 611 of the Book Baburnama by Beveridge
stating that he did not hesitate in destroying the idols on
1676
28.09.1528 at Uruwa (Gwalior) where he found three sites
occupied by a solid rock wherein the people had cut out idols
statue large and small and he ordered for destruction thereof.
1571. Ex. 82 (Suit-4) (Paper No. 218C1/1-20) contain certain
pages from Memoirs of Baber- Emperor of India by Lieut.
Colonel F.G. Talbot, first published 1974 by Ess Ess
Publications, Delhi. This work is mainly based on the English
translation of Tuzuk-I-Babari by John Leyden and William
Erskine, first published in 1826 and it is said that the book being
out of print for many years, therefore the Memoirs of Babar are
practically now unknown. The author, however, has also taken
help from Stanley Lane-Poole's Introduction to Babar. Pages no.
I to XV from Chapter Introduction, 1 to 3, 46 to 49 and 196 to
213 are before us. The attempt on the part of Sri Jilani is that
from no part of the book it does appear that Babar ever
encouraged destruction of Hindu temple or religious place of
other religions. Sri H.S. Jain, on the contrary, submitted that his
disliking to Hindus and other religions is writlarge from the fact
that he addressed Hindus as 'Pagans' and declared war against
Rana Sanga as 'Holy war' which shows his character and
extreme religious fervour towards 'Islam'. He referred to the
following passage from page 207 of the book (Paper No.
218C1/16) :
From the eleventh year of my age till now, I had
never spent two festivals of the Ramza in the same place.
Last year's festival I had spent in Agra. In order to keep up
the usage, on Sunday night the thirtieth, I proceeded to
Sikri to keep the feast there. A stone platform was erected
on the north-east of the Garden-of-Victory, on which a set
of large tents was pitched, and in them I passed the festival.
1677
The night on which we left Agra, Mir Ali departed. He was
extremely fond of playing cards, and had asked for some,
which I sent him.
1572. The issues need to be decided by this Court does not
get any help from the above documents. One thing, however, is
clear that the Babar came to India with a clear intention to stay
and rule. In furtherance therefor, for keeping the morale of his
force high and for other reasons, he took all necessary steps as
he found expedient. It is evident from page 208 (Paper No.
218C1/17) and page 210 (Paper No. 218C1/18) :
Hitherto the peoples of India had regarded Baber
as a temporary raider who would depart as soon as he had
gathered enough spoil; but when they found he had come to
stay they began to consider what policy to pursue, and in
weariness of incessant warfare began to see the merits of a
master.
Three thousand Afghans from the Doab were the first
to come over to him, and were rewarded with territories in
Oudh, which was still in revolt.
One of the first acts of the Conqueror was to lay out
a road from Agra to Kabul, and the distance having been
actually measured, a tower twenty-four feet in height was
erected at every fourteen miles, while at every sixteen miles
a post-house for six horses was built, and an allowance
fixed as a provision for post-house keeper, courier,
grooms, and the keep of horses. Where the road lay
through a rich man's territory he was made to pay all the
costs of maintenance. (Page 208)
The affairs of Hindustan had now been reduced to a
certain degree of order. The revenue from land was
1678
returned at 4,212,000/-. This was from land alone and by
no means represented the total income. (Page 210)
1573. The life of Babar after his conquest was very short
inasmuch it is not in dispute that he died on 26
th
December 1530
AD at Agra. Thereafter in the light of his last wish, he was
buried in the garden on the hillside at Kabul.
1574. Ex. 83 (Suit-4) (Paper No. 220C1/1-11) and Ex. 84
(Suit-4) (Paper No. 222C1/1-5) are also the photocopies of
certain pages from Babarnama translated by Yugjeet
Navalpuri Edn. 2002 and nothing has been referred therefrom
by the learned Counsels for the parties. We also do not find any
thing therefrom which may throw any light for deciding the
issues in question.
1575. Next in this context is about the persons whose name
is claimed to have been mentioned on the inscriptions at the
disputed site, i.e., Mir Baqi. In the transcript of Fuhrer it
mentions Mir Khan while in other transcript it is mentioned as
Mir Baqi.
1576. Sri P.N. Misra, Advocate has vehemently argued that
the entire Baburnama does not mention any person in the army
or otherwise relating to Babar with the name of Mir Baqi. He
says that Baqi was a military decoration in the army of Babar
and Mir was a civil honour to the persons of respectability etc.
He says that the part of the army sent to Ayodhya was headed
with Timur Begh, Baqi Tashkindi etc. but it does not mention
any person as Mir Baqi.
1577. Sri P.N. Misra, learned counsel appearing on behalf of
defendant no. 20 (Suit-4) supported the above stand and also
contended that there is nothing in the said diary maintained by
Babar that he ever entered Ayodhya either in March 1528 or in
1679
April 1528. It is common ground that the Babar-Nama misses
the text between 2
nd
April to 18
th
September 1528 AD. The
reason we are not concerned. Sri Jilani raised the above
argument in order to buttress his submission that the Babar
when did not enter Ayodhya himself there was no question of
any demolition of a temple by him and construction of mosque.
The pleadings of Hindu parties in connected suits to this effect
are not correct, is what he tried to persuade us. Sri Misha,
however, agree so far as the former part is concerned that there
was no occasion for Babar himself to direct for demolition of
any temple and construction of mosque since he did not enter
Ayodhya but he tried to explain the things otherwise by
submitting that this also shows that the disputed building was
not constructed in 1528 AD and there is no historical document
of contemporary period to substantiate the above claim of
defendants no. 6 to 8 and 10 in Suit-1, the plaintiffs of Suit-4
and all muslim defendants in Suit-3 and 5. Sri Mishra also
pointed out that Shaikh Bayazid was then governing
Awadh/Ayodhya. The Army Commanders of Babar who
crossed the river so as to enter Ayodhya were Tardi Beg of Quj
Beg, Baba Chuhra, Baqi Shaghawal and Chin Timur. It is
pointed out that there is no person named as Mir Baqi in the
entire Babur-Nama. Sri Mishra placed before the Court Babur-
Nama by Beveridge to show that it mentions Baqi Beg
Chaghaniani; Qib Chaq Turk; Baqi Gagiani Afghan; Baqi Hiz;
Kwaja Baqi son of Yahiya son of Ehrari who was murdered in
1500 AD; Baqi Beg Taskindi; Baqi Beg Shaghawal; Baqi Beg
Mingbashi; Baqi Takhan. Sri Mishra submitted that there is no
mention of any Mir Baqi in Babur-Nama. Our attention was also
drew to page 684 of Beveridge's Babur-Nama to show that it is
1680
Baqi Tashkindi who came from Awadh (Ayodhya) on
13.06.1529 AD to meet Babar. Page 685 of Babur-Nama shows
that Babar sent Baqi Shaghawal on 16.06.1529 while camping
near Kalpi to collect information about his enemy, i.e., Biban
and Bayazid. On 17.06.1529 AD it is mentioned that one of
Baqi Beg's retainers came informing that Baqi had beaten scouts
of Biban and Bayazid, killed one of their good men, Mubarak
Khan Jalwani and some others, sent in several heads, and one
man alive. He says that Baqi Shaghawal has been addressed as
Baqi Beg and Baqi Tashkindi who came from Ayodhya has
been addressed as Baqi but there is no mention of any of the
person addressed as Mir Baqi. It is contended by Sri Mishra,
Advocate that the later historians/translators, of their own,
identified Baqi Tashkindi as Baqi Shaghawal as well as Mir
Baqi though in the entire Babur-Nama, Babar has not addressed
anybody or any one as Mir Baqi. He drew our attention to
certain persons whose name started with the word Mir, namely,
Mir Bujurg Tirmizi; Mir Khurd Bakawal; Mir Mughul son of
Abdul Wahab Saghawal; Mir Sang-Tarash; Mir Zadas of
Khwast and none of these persons, he submit, can be said to be
possibly addressed as Mir Baqi.
1578. In Lieut. Colonel F.G. Talbot's under the title
Memoirs of Baber Emperor of India First of the Great
Moghuls (Supra) on page 90, with respect to the events of the
year 1504 AD there is a reference of Baqi Beg and on page 91
for the same period there is reference of Baqi Beg as well as
Baqi Chaghiani. The relevant extract whereof are mentioned as
under:
At this same period, Baki Beg repeatedly, and with
much earnestness, urged his sentiments, that to have two
1681
sovereigns in one country, and two generals in one army,
was an unfailing source of confusion and ruin, and
inevitably productive of rebellion, mutiny, and finally of
dissolution; as the poet says
'Ten dervishes may repose on one cloak,
But two sovereigns cannot be contained in the same
climate.
The man of God, when he eats half a loaf,
Divides the other half among the poor and needy.
If a king subdues a whole kingdom, nay a climate,
Still, as before, he covets yet another.
At this period, information arrived that Sheibani
Khan had taken Andejan. On hearing this news, Khosrou
Shah, unable to support himself in Kundez, took the route
of Kabul with his whole force. No sooner had he left
Kundez, than one of his old and confidential servants
occupied that fortress, and declared for Sheibani Khan.
Just as I reached the Red River, three or four thousand
heads of houses of the Moghul clans, who had been
dependent on Khosrou Shah, came and joined me, with
their whole families. Here, in order to gratify Baki Beg, I
was obliged to discharge Kamber Ali, the Moghul, who has
been so often mentioned. He was a thoughtless and rude
talker; and Baki Beg could not put up with his manners.
When Khosrou Shah learned that the Moghul tribes
had joined me, he felt his own helplessness; and, seeking
no remedy left, sent his son-in-law as his envoy, to make
professions of submission and allegiance, and to assure me
that, if I would enter into terms with him, he would come
and submit himself. As Baki Cheghaniani, a man of much
1682
weight, though steadily attached to my service, yet was not
without a natural bias in favour of his brother, he
recommended a compromise to be made, on condition that
Khosrou's life should be spared, and his property left
entirely to his own disposal. A treaty was accordingly
concluded on these terms.
1579. Another name, namely, Baqi Tarkhan is mentioned at
page 11 of Talbot's Memoirs of Baber (supra) and that is also
with reference to a much earlier period. The extract wherein the
above name is mentioned on page 11 is as under:
Baki Terkhan was another. In the time of Sultan
Ali Mirza, he rose to great consequence, his retainers
amounting to five or six thousand. He was far from being in
a proper state of subjection or obedience to Sultan Ali
Mirza. He was very fond of hawking, and is said to have
had seven hundred falcons at one time. His manners and
habits were such as cannot well be described; he was
educated and grew up in the midst of magnificence and
state.
1580. Besides, on page 4 it mentions the name of Mir Ghias
Taghai; on page 26 it mentions about Mir Shaha and has
appreciated about his gallantries; on page 114 there is a
reference of Mir Beder and his dancing in the events relating to
the year 1506 AD; on page 116 there is reference of Mir Jaan
and his singing; on page 174/175 Mir Miran is mentioned and
on page 207 Mir Ali is referred but there is no reference of any
Mir Baqi. Talbot has not said anything about the Ayodhya visit
except that of page 208 where he has referred to Awadh once
only in the following manner:
Thee thousand Afghans from the Doab were the
1683
first to come over to him, and were rewarded with
territories in Oudh, which was still in revolt.
1581. On behalf of plaintiffs (Suit-4) copies of certain pages
of "Mughal Kalin Bharat-Babar (1526-1530) by Syed Athar
Abbas Rizvi (Supra) have been filed which are marked as
Exhibit 85, Suit-4 (paper No. 223C1 and 224C1/1-62). These
photocopies are from the 1960 edition of the book. Pages No.
19-20, 49-50, 232-233, 272-281, 310-313, 318-320, 328-341,
353, 375, 380-387 and 420-421 have been filed. We, however,
are referring from 2010 reprint since this book in its entirety is
available to the Court. On page 272, the book narrates the
incidents of 28.03.1528 and 02.04.1528 which is almost similar
to what is contained in Beveridge's Babur-Nama for the said
date but since it is a translation by a Muslim writer having
authority on the subject which is admitted to the plaintiffs of
Suit-4 also, we reproduce the same as under:
i r i
i i i | n| - ~ni i i
l| i | l, '' i i i -i r i r n
- i| i | " ooo |i i ii ii i| -
r n ii |
(zs -i ) ili / i r- i zs ir
nn i n- + i li | l n ii
i| i i i i- ri rini | r ~ni
i i ini ( li li - ) ini ni ri ln ~ni
| in ni nn ri ii ii i -iri -n | -i
- i lii| i | i | -ii ni |
ii ~ni i r ni ni ri n-i | i | |
ri nin ro ii r| nii s i rii| i| , i
iin i r | s i ni i ii lni l i- i
n i r ( - i ) i li ni |
1684
~ni |s |s |i ~ni, n (ii; ) n|
n, ii ri nii i | i n i i| | i | | l ini
; | i | i|, i ni i i i | i i i
| -i n |si li ln r n - i iin ni | |
n|- il - i r n- -ri i ii| in -
l ilri |s ii r i | r o i r | ii -ii
, ri ii i | li i -i| -r i, r ni |
i| iin n rin | -ii nni-| ii lri i
- lii - i |si l i i | i | i n i
s |i lrn i i i i -i ini li i lii
i r s nii i | i li | r- s l n
i nii i ii i i l-in l
i -r r | i /s i i | n-
-ii ii l li - ri ini ii l r | s| liinir
r | -| - r-- iii i ; ii i i ni l r nn
| nii i | ii- i l|ii i - i |
(z ) r-lni z i r- lii
-ii li|
1582. The Rizvi's translation has referred to a large number
of persons whose names have the title of 'Mir' on pages 716 and
717 as under:
-| ni ~ir; -| i; -| n ; -|
i- ~ lnl- |; -| |; -| | n; -| | i ; -| |
i i; ; -| ; ir|-; -| ; ir|- i |; -| i |i; -| i ; -|
i i; -| n i; -| n i nni; ; -| ni |; -| n ;
-| i; -| i ; |; -| n|- | i i; -| i - r--
ii; -| il ; -| ; -| -|i; -| - n ; -| - ni ; -|
- r--; -| - r-- | n n; -| - r-- iii; -| - r--
il; -| - r-- i|; -| - r-- ; -| iir |; -| iir
n; -| i |-; -| nnii; -| ri; -| ~ni |
i|; -| l | r-i|; -| l | | - rl
1685
|; -| r-r; -| r-i; -| r ; -| r - --i;
1583. On page 659 he has mentioned the words Amir Mir
Baqi but that is with reference to his translation of stone
inscriptions said to be there on the disputed building with which
we have already discussed. In the entire translation of Babur-
Nama and other description there is no mention of anyone as
Mir Baqi. The aforesaid work also nowhere mention or shows
that Babar at any point of time did enter Ayodhya or Awadh
after reaching near thereto on 28.03.1528 though it is said that
he stayed thereat for about a few days.
Traveller's Account
1584. There are two travellers account which have to be
considered at this stage. One that of "William Finch" and
another is that of "Father Joseph Tieffenthaler".
1585. William Foster published a book, namely, Early
Travels in India (1985 First Edition distributed by Munshiram
Manoharlal Publishers Pvt. Ltd.) which contains the narratives
of seven Englishmen who traveled in northern and western India
during the reigns of Akbar and Jahangir. These travelers are
Ralph Fitch (1583-91); John Mildenhall (1599-1606); William
Hawkins (1608-13); William Finch (1608-11); Nicholas
Withington (1612-16); Thomas Coriyat (1612-17) and Edward
Terry (1616-19). William Finch came to India in August 1608
and landed at Surat with Capt. Hawkins. With respect to
Ayodhya, Finch has written on page 176 of the book as under :
To Oude (Ajodhya) from thence are 50 c.; a citie of
ancient note, and seate of a Potan king, now much ruined;
the 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,
1686
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 Iackes of yeeres (which is
three hundred ninetie foure thousand and 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 loose himself 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 graines of rice as blacke as
gun-powder, which they say have beene reserved ever
since. Out of the ruines of this castle is yet much gold
tryed. Here is greate trade, and such abundance of Indian
asse-horne that they make hereof bucklers and divers sorts
of drinking cups. There are of these hornes, all the Indians
affirme, some rare of great price, no jewell comparable,
some esteeming them the right unicornes horne.
Photocopy of page 176 of the book is Exhibit 19 Suit-5
(Register 21 Page 271)
1586. William Finch who visited Ayodhya between 1608-
1611 AD neither found any building of importance of Muslim
nor Muslim population nor any activity of Muslims noteworthy
in Ayodhya. Had the building in dispute been constructed in
1528 i.e. just about 80 years back, it is quite difficult to
understand that would not have been considered to be a place of
importance and could have gone unnoticed by Finch. He has
specifically referred to Castle of Lord Ram Chandra Ji which, in
1687
his understanding, constructed about 400 years ago. Obviously,
it could not be related to the building in dispute as such. Here
also what he says that there existed ruins of Ram Chandra's
castle and houses which the Indians acknowledge the Great
God. He also says that in these ruins certain Brahmins used to
record the names of visiting Indians which is a practice still in
continuance in various holy places and those Brahmin people
are normally called as Panda/Mahraj where one can find the
record of hundreds of years back belonging to their predecessors
who had earlier visited these holy places.
1587. Sri Jilani sought to argue that write up of William
Finch lends no credence for it does not mention very clearly as
to which place in Ayodhya he visited. However, Sri Jilani also
could not suggest that in Ayodhya there is any place other than
that which included the disputed site which may or could be
considered to be the fort of King Dashrath or Lord Rama in
ancient times. At least this much cannot be disputed that
William Finch's travel account did not find mention of any big
building known as Babri Mosque to have existed in Ayodhya
having been constructed just about 80 years ago before his visit.
His travel account suggests that the number of Muslim
inhabitants in Ayodhya city in earlier 17
th
Century was
negligible.
1588. Next comes another travel account of Father Joseph
Tieffenthaler who visited India sometime in 1740 and
remained here for about 20-25 years. He also visited Ayodhya
during his above stay and had written travel account which was
written in Latin in the book "DESCRIPTION : HISTORIQUE
ET GEOGRAPHIQUE : D E L' I N D E" under the title
"TOME 1. NOUVELLE EDITION. Contenant la
1688
Geographic de l'Ind-Uftan, avec. 39,. Planches". English
translation of which is "HISTORICAL AND
GEOGRAPHICAL DESCRIPTION OF INDIA" VOLUME 1
NEW EDITION containing the Geography of Hindustan, with
39 illustrations". The account of Tieffenthaler was translated in
French and was published by M. Jean Bernoulli in 1786, photo
copy of the first two pages of the French publication as well as
pages no. 252 to 255 was provided to this Court which has been
marked as Exhibit No. OOS 5-133 (Paper No. 107 C/96-104)
(Register 21 page 273-289).
1589. The aforesaid documents were written in French
(except of very few words which were in Lati). Since the
English translation supplied by plaintiffs (Suit-5) was seriously
disputed, we directed the Government of India to get an
authenticated English Translation of the aforementioned pages
which have been made available to us and after giving
opportunity to the parties to file their objection has been
admitted vide order dated 10.03.2010. The relevant part in the
aforesaid report, i.e.,pages 253 is reproduced as under:
"L'empereur Aurengzebe a fait demolir la fortereffe
appelee ramcot, & a eleve au meme lieu un temple
mahometan, a triple coupole. D'autres difent qu'il a etc
conftruit par Babor. On y voit I 4 colonnes de pierre
noire, hautes de 5 empans, qui occupoient l'emplacement
de la fortereffe. Douze de ces colonnes portent maintenant
les arcades intericures de la Mosquee: deux (de ces I 2)
font placees a la porte du cloitre. Les deux autres font
partie du tombeau d'un certain Maure. On raconte que ces
colonnes, ou plutot ces debris de colonnes artiftement
travaillees ont etc apportees de l'ile de Lanca ou Selendip
1689
[appelee Ceylan par les Europeens] par Hanumann, Roi
des Singes."
Emperor Aurengzebe got the fortress called
Ramcot demolished and got a Muslim temple, with triple
domes, constructed at the same place. Others say that is
was constructed by 'Babor'. Fourteen black stone pillars
of 5 span high, which had existed at the site of the
fortress, are seen there. Twelve of these pillars now
support the interior arcades of the mosque. Two (of these
12) are placed at the entrance of the cloister. The two
others are part of the tomb of some 'Moor'. It is narrated
that these pillars, or rather this debris of the pillars
skillfully made, were brought from the island of Lanca or
Selendip (called Ceylan by the Europeans) by Hanuman,
King of Monkeys.
(English transliteration)
1590. Sri Mishra pointed out that there appears to be an
english translation also of the travel record of Tieffenthaler. He
refers to the english translation of Tieffenthaler in para 5 of his
written argument and gave a brief biodata of father Tieffenthaler
in para 6 which read:
"5. Father Josef Tieffenthaler, a Jesuit Missionary and
noted geographer on Hindustan visited Ayodhya in 1770
did not find any Inscriptions even that superscription
Allah mentioned by the Ld. District Judge in 1886.
From Josef Tiffenthalers description it appears that at that
time also Hindus were worshipping inside the
Ramjanmsthan Temple alleged to be converted into
mosque either by Aurangzeb or by Babar. As he was not
only a Missionary but an excellent Historian, Geographer
1690
and great linguistic having mastery over several languages
including Arabic, Persian and Sanskrit, there was no
possibility of overlooking the alleged Inscriptions by him
as it would have enabled him to tell the people with
certainty the name of the Tyrant Emperor who attempted
to convert Sri Ramajanmasthan Temple into Mosque.
English translation of a portion of his book Descriptio
Indiae being description of Oude including the Sri
Ramajanmasthan has been published on pages 312 to 317
in the Modern Traveller, a Popular Description,
Geographical, Historical, and Topographical of the
Various Countries of the Globe- India. Vol. III ; London
Edn.1828 published by James Duncan and has been
digitalised by Google. Relevant extracts thereof read as
follows:
"Its appearance, in 1770, is thus described by Tieffen
Thaler: Avad with Ajudea by the learned Hindoos, is
a city of the highest Antiquity. ......... (Ibid.312)
The most 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 Oojein.
There was a temple here on the high bank of the river;
but Aurangzebe, ever attentive to the propagation of
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 Hindoo superstition. Another mosque
1691
has been built by the Moors, to the East of this near
the Sorgodoari in an edifice erected by Nabalroy, a
former Hindoo governor. But a place more particularly
famous is that which is called Sitha Rassoce, a 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 of 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, 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
columnsms, are rather these remains of skillfully
wrought columns, were brought from the Isle of Lanca
or Selendip (Ceylon) by Hanuman, King of the
Monkeys. On the left is seen a square chest, raised
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, is 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 practising there their
superstitions. Nevertheless, they still pay superstitious
reverence to both these places; namely, to that on
which the Natal dwelling Ram stood, by going three
1692
times around 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 under ground
ever since the time of Rama. On the 24th of the month
of Tshet (Choitru), a large concourse of people
celebrate here the birth-day of Ram, so famous
throughout India. (Ibid. 313- 314)
6. Josef Tieffenthaler was born at Bozen in the Tyrol, on
27th August, 1710 and died at Lucknow on 5 July, 1785.
He entered the Society of Jesus 9 October, 1729, and went
in 1740 to the East Indian mission where he occupied
various positions, chiefly in the empire of the Great
Moghul. After the suppression of the Society he
remained in India, and on his death was buried in the
mission cemetery at Agra, where his tombstone still
stands. He was a fine scholar with an unusual talent for
languages; besides his native tongue he understood Latin,
Italian, Spanish, French, Hindustani, Arabic, Persian, and
Sanskrit. He was the first European who wrote an exact
description of Hindustan. A brief list of his works is the
best proof of his extraordinary power of work and his
varied scholarship. In geography, he wrote a Descriptio
Indiae, that is a circumstantial description of the twenty
two provinces of India, of its cities, fortresses, and the
most important smaller towns, together with an exact
statement of geographical positions, calculated by means
of a simple quadrant. He wrote a large book on the courses
of the Ganga. In history, he wrote many books. He wrote
1693
on the origin of the Hindus and their religion in Latin,
expeditions of Nadir Shah to India in German, the Deeds
of the Mughal Emperor Shah Alam in Persian, Incursions
of the Afghans and the Conquest of Delhi in French. He
wrote a book on contemporary history 1757-64. In
linguistics he prepared a Sanskrit-Parsee Lexicon, treatises
in Latin on the language of the Parsees, on the proper
pronunciation of Latin, etc.. In the area of religion, he
wrote Brahmanism and works on Indian polytheism,
Indian asceticism, the religion of Parsee Islam and
relations of these religions to one another.In the field of
the natural sciences he wrote on astronomical observations
on the sunspots and zodiacal light, studies on the Hindu
astronomy, astrology and cosmology. In addition, he
wrote on the descriptions and observations of the flora and
fauna of India. Thus he was an intellectual giant and a
linguistic wizard and not mere a traveller or a merchant
who made casual remarks. His published works along
with biographical notes can be lucidly gleaned from
Catholic Encyclopedia (1913) and Christianty in India
through Wikisource and Wikipedias website respectively.
His writings and contributions also find place in the books
-HUONDER, Deutsche Jesuitenmissionre des 17. und
18. Jahrh. (Freiberg, 1899), 179; NOTI. Jos.Tieffentaller,
S. J., A Forgotten Geographer of India (Bombay, 1906);
HOSTEN, Jesuit Missionaries in Northern India (Calcutta,
1907).
1591. Sri P.N. Mishra argued that Father Joseph
Tieffenthaler himself was a linguist knowing Persian and Arabic
very well. Had the inscriptions two or three, as the case may be,
1694
whatever, fixed to the disputed building till the time he visited
Ayodhya including the disputed site, he could have himself read
the same and would have mentioned categorically that the
building in dispute was constructed by Babur. There could not
have been any occasion in such a case to mention that there was
a demolition by Aurangzeb and construction of mosque by him
and thereafter further that some says that it was done by Babur.
Sri Mishra suggested that Aurangzeb died in 1707 A.D. and had
ruled the most part of the country for about forty-eight years.
Whether he himself visited Ayodhya or not is irrelevant for the
reason that his Farman (command) for demolition of Hindu
temples is referred to in several history books including some of
the contemporary Muslim literature written by Muslim authors.
He argued that the existing Hindu temple was demolished by
Aurangzeb and it is during his regime, the disputed building was
constructed but at that time no inscription was installed thereat.
These inscriptions did not exist till Father Joseph Tieffenthaler
visited Ayodhya including the disputed site between 1740 to
1760-65. He pointed out that the inscriptions on the disputed
building came to be noticed for the first time by Dr. Francis
Buchanan who was appointed by the Governor General in
Council to undergo a survey of the Provinces ruled by the
Presidency of Bengal in 1807 AD visited Ayodhya in 1810 AD.
1592. Here it would of some importance to have an idea of
biography of Dr. Francis Buchanan. He was borne at Bardowie,
Callander Perthshire on 15
th
February, 1762. His family
originated in Spittal and claim the Chiefdom of the name of
Buchanan. He studied medicines at the University of Edinburgh.
He also studied Botany under John Hope in Edinburgh. After
several voyages on merchant navy ship to area, he served in the
1695
Bengal Medical Service from 1794 to 1815 AD. From 1803 to
1804 AD he was Surgeon to the Governor General of India,
Lord Wellesley in Calcutta. There he organised a Zoo, later
known as Calcutta Alipore Zoo. He worked on Indian Fish
Species entitled An account of fishes found in the river Ganges
and its branches (1822) which describes over 100 species not
formerly recognised scientifically. He also collected and
described very new plants in the region and collected a series of
Watercolours of Indian and Nepalese plants and animals,
probably painted by Indian artists, which they say that they are
now in the library of Linnean Society of London. After Tipu
Sultan's defeat in 1799 AD he was asked to survey Southern
India resulting in a journey from Madras through the countries
of Mysore, Canara and Malabar (1807 AD). From 1807 to 1814
AD under the instructions of the Governor General and Council,
Bengal he made a survey of the areas within the jurisdiction of
the British East India Company, i.e., the provinces subject to the
Presidency of Bengal. He became Superintendent of the
Calcutta Botanical Garden in 1814 but due to his ill health
return to Britain in 1815 AD. In the same year he inherited his
mother's estate and in consequence took her surname of
Hamilton, referring himself as Francis Hamilton, formerly
Buchanan or simply Francis Hamilton. However, he is
variously referred to by others as Buchanan Hamilton,
Francis Hamilton Buchanan or Francis Buchanan Hamilton.
He is considered to be Scottish Physician who made significant
contribution as a Geographer, Zoologist and Botanist while
living in India. He died on 15.06.1829.
1593. Apparently work of Dr. Buchanan could not be given
final shape by him. However, it appears that three journals were
1696
published by the government of Bihar and Orissa sometime in
1923 AD and onwards. One was published relating to Patna and
Gaya districts sometimes in 1923 AD under the editorship of
Mr. Jackson, another was published soon thereafter dealing with
the district of Sahabad under the care of Mr. Oldham and third
one was published narrating the survey of District Bhagalpur
conducted in the cold weather of 1810-11 AD edited by Mr.
Oldham.
1594. As already said, in 1807 AD under the orders of
Governor General and Council, East India Company Dr. Francis
Buchanan was directed to conduct survey of all the provinces
subject to the Presidency of Bengal. He was required to collect
information upon the general topography of each districts; the
condition of the inhabitants, their religious customs, the natural
productions of the country, fisheries, forests, mines and
quarries; the state of agriculture; the condition of landed
property and tenures; the progress made in the arts and
manufactures; the operations of commerce, and every particular
that can be recorded, as forming an element, in the prosperity or
depression of the people. The survey was pursued for seven
years and in 1816 AD the results were transmitted to England.
1595. Due to bad health of Dr. Buchanan the matter could
not proceed and it appears that the East India Company
thereafter took the help of Mr. Robert Montgomery Martin. The
Court of Directors permitted Mr. Martin to inspect the
manuscripts with a view to selection for publication. It was
sometimes in 1836 or 1838 Mr. Martin was required to study the
material collected by Dr. Buchanan, prepare a report so as to
place before the British public.
1596. This leads us to look into the biography of Robert
1697
Montgomery Martin. Born in Dublin of Protestant Irish Stock
in 1801 AD he spent 10 years in medical practice in Shillong,
East Africa and New South Wells and working as journalist in
Calcutta. There he helped, found and edit The Bengal Herald
before he return to Britten. He wrote on the colonies and
colonial policy. On return he become embroiled in domestic,
political and economic debate. In politics he initially supported
Repeal of the Act of Union between England and Ireland but
later switched to pro-unionism on religious and economic
grounds. In economics he was an opponent of popular
recardianism. He called for repeal of the 1819 AD currency
legislation; vigorously advocated protectionism for British
agricultural; concern himself with the principle of taxation. Due
to limited personal finances and an interest in policy matters he
sought Government patronage for official employment or
financial support.
1597. Buchanan made survey in the then territory of District
Behar, Shahabad, Bhagulpoor, Goruckpoor, Dinajpoor,
Puraniya, Ronggopoor and Assam. Mr. Martin found that the
time when the survey was made and when he was required to
inspect the manuscripts has made certain matters irrelevant. He,
therefore, in his wisdom confined his views to an examination
of the geography and physical aspect of the country; to its
traditional or recorded history, to the monuments or relics of
antiquity; physical and moral conditions of the people
amounting (according to the survey estimates) to 1.6 crore and
to the resources of the soil which they till; the manufactures
which carry on; and to the products and profits of agricultural
and commercial industry. In his views the survey depicted a
painful picture of human poverty, debasement and
1698
wretchedness. The report was submitted by Mr. Martin in
February' 1838 which was first published in 1838. It has now
been reprinted in 1976 in India by Cosmo Publications, Delhi.
Martin's report has been published under the title Eastern
India and is running in six volumes. It is a matter of
importance that Martin has not claimed to have visited North
West Provinces of India under East India Company. His entire
opinion is based only on the perusal of record sent by Buchanan.
1598. In the Chapter District Gorukhpoor, certain facts
about Ayodhya have been given. District Gorukhpoor (now
spelt as Gorakhpur) at that time situated to the left or north of
the river Ghoghra. According to survey map published in Vol-2
and printed between page 290 and 291, book titled as Eastern
India by Mortin, we find that on the western and southern side,
the boundary wall is depicted by the rivers Gharghara/Ghaghara
and Saryu; and on the northern and western side, the entire area
termed as Domain of Nawab Vazir of Oudh. About river
Ghaghra, description is on page 297 as under :
Ghaghra. - The accounts of the great river, which
passes the ancient city of Ayodhya, that I have received,
differ not only very much from the maps of Danville and
Rennell, but disagree very much among themselves. The
confusion is increased to the most perplexing degree by
very different names being not only given to different parts
of the same river ; but even the very same portion by
different people and tribes is called by different names.
Finally the native maps, that I have received of the
country; through which the remote branches of this river
flow, are more imperfect than those of the country either to
the east or west, so that what I have to advance on the
1699
subject is liable to great doubt ; but as the information, if
true is curious, I think, that until more accurate
information is obtained, it should not be neglected.
At the city of Ayodhya this great river among the
Hindus is usually called Sarayu (Soorjew, Rennell), and
this name is in use in their sacred language; but by the
Muhammedans it is called Ghaghra, from the Sangskrita
word Gharghara. This name Mr. Gladwin (Ayeen Akbery)
wrote sometimes Gehgher, sometimes Goghar; and Major
Rennell writes it Gogra. The mountaineers from the east
side of this river assure me, that neither name is known on
the hills, and that the Sarayu celebrated in their legends is
formed by the junction of the Bheri river, which I take to be
the Soorjew of Major Rennell, with the Karanali Salasu, or
Sanbhadrik, which is no doubt the Gogra of that eminent
geographer, as the remarkable fountains emitting flame at
Dulubasandra are situated near its bank. The inhabitants
of the low country also in general agree with Major
Rennell, in calling the eastern branch the Sarayu, and the
western the Ghaghra, but the western branch which they
mean, is quite different from that on which Dulubasandra
is situated, and at any rate its principal branch on the
mountains is the Kalinadi. Both these authorities therefore,
that is, the mountaineers east from the river, and the people
of the low country agree, that a great river coming from the
west, and named the Ghaghra, unites with the Sarayu,
coming from the east, and that this latter among the Hindus
is considered as the principal river, and communicates its
name to the united stream while the Muhammedans adopt
the opposite opinion, and continue the name Ghaghra to
1700
the river at Ayodhya. A learned and intelligent Brahman,
however, Hariballabh of Kuman, from the mountains on
the west side of the river, and perfectly acquainted both
with the country and the legends, says, that the names
Sarayu and Ghaghra are applicable to the same river,
through the whole length of its course. That it rises by
two petty sources in the Pergunahs of Karuvirpoor and
Danapoor, on the hills north form Almorha ; but far
removed from the snowy peaks of Emodus. These two
torrents uniting at Bagheswar form the Sarayu, which
continues to run east, receiving the Panar a small channel
producing gold, and the Ramagangga of considerable size.
Some way east from the junction of the latter, the Sarayu
receives a river much larger than itself, which rises from
the perennial snows of Emodus, and is called the Kalinadi.
The united stream is the Sarayu, or Gharghara, and passes
south-westerly towards the plains, nor does my informant
know more of its course ; but, that it passes by Ayodhya to
join the Ganges at Dadri, he has learned from legend.
The account of the most intelligent boatmen that I
could procure at Ayodhya, is as follows. The boats which
load timber, can proceed no higher up the Ghaghra than
Mundiya ghat, which is in the Bareli district, about 18
coss, or 27 miles, road measure, from Pilibhit. The channel
is there very wide, but the stream is not large, and is not
above two cubits deep. The territory of Gorkha commences
about seven or eight coss from Mundiya, at a large forest
named Langsar, from which much timber comes. About
twelve coss below Mundiya the Ghaghra receives from the
mountains a branch called Neaula, down which much
1701
timber comes from the territory subject to Gorkha. Twelve
coss lower down, it receives the Kauriya, and immediately
below its mouth a third named the Geruya enters. Timber
is brought down both these rivers, and on the latter, in the
dominions of Gorkha, are two great forest, Amba and
Palamu. I suspect, that the Kauriyar and Geruya, and
perhaps even the Neaula are only different mouths of the
same river, which in the mountains is called Setigangga, or
the white river. The Hindus have given the preference to
the Sarayu, which is said to be the smallest, nor is the
larger branch any where fordable below the mouth of the
Bhakosa. The united channel begins to form the
boundary between this district and the territories of the
Nawab Vazir, just at the city of Ayodhya, where its
channel and stream seem fully larger than that of the
Ganges at Chunar. For about 18 miles below Ayodhya
its width is from one to three miles, as it surrounds two
very large islands, the property of the upper of which is
disputed by the landholders of the two governments; but
the lower is the undisputed property of the
Muhammedan prince. About ten miles above where the
Ghaghra comes to be the boundary, it sends off a channel
merely called the Sota, or branch, which runs parallel to
the main river for above six miles, forming for more than
four the boundary between the two governments, when it
joins the Teri river. I crossed this branch on the 11
th
of
December, where it was about a quarter of a mile wide,
and perhaps a fourth of the channel might be covered with
water knee deep, but nearly stagnant.
The Teri comes to the boundary of this district, about
1702
14 miles from where it receives the above-mentioned
branch of the Ghaghra, and, at the boundary receives from
the north-west a marshy channel called the Nawara jhil,
which forms the boundary for about four miles. The united
channel called Teri is inconsiderable, and winds much,
partly along the boundary, and partly on both sides of it,
until about four miles from where it receives the branch of
the Ghaghra called Sota. It there joins with a similar
branch of that river called Bhagala, which for some way
serves as the boundary. The united channel is called the
Teri. (pages 297-300)
1599. Dealing with historical and topographical part of
District Gorakhpur, on page 325 and onwards it says :
This district forms a considerable part of the
territory, which in ancient legend is called Maha Kosala.
.... This very extensive and fertile region has always been
considered as the proper patrimony of the family of the
sun, as it is called, which for a very long period governed
large portions of India and at times produced its
paramount lords. (page 325)
1600. The study which was conducted by Martin, the source
of his information etc. in writing this chapter and in particular
what he has observed on pages 325 to 337 can not be well
understood unless we go through details of his entire discussion
on the matter and, therefore, it would be necessary to reproduce
the following from his book :
The history of the Hindus has been thrown into such
confusion by an attempt to reconcile the actual
succession of their princes with a modern system of
astronomy, as most ably explained by Mr. Bentley in the
1703
eighth volume of the Asiatic Researches, that the utmost
difficulty attends all attempts to reconcile with any thing
like reason such ancient accounts as have been preserved
in the monstrous and modern legends called the Purans.
The difficulties attending this subject may be fully
appreciated by examining the different attempts of Sri
William Jones in the second volume, of Major Wilford in
the fifth volume, and of Mr. Bentley in the eighth volume of
the Asiatic Researches, although in the latter the real
source of the difficulties seems to have been fully
discovered. Still, however, many great difficulties exist,
which these authors have not fully explained, and of which
the two first do not seem to have been fully aware. Sir
William Jones seems, without examination, to have
adopted the account given of the Indian dynasties by
Radhakanta, in his Puranartha-prakasa, as the doctrine
generally received by the Hindus on the subject, and
alleges (Asiatic Researches, vol. 2, page 26), that it begins
with an absurdity so monstrous as to overthrow the
whole system, he then endeavours to turn the whole of
the early pedigree into an allegory, denying altogether
the existence of many princes, because their names
signify light, sky, sun, moon and so forth; although he
might have considered, that such names are sometimes
used for men among ourselves, and among the present
Hindus are very common. The grand objection to the
system of Radhakanta is, however, his having adopted as a
maxim, that there was always a supreme king of each of the
families of the sun and moon, so that India, according to
him, was governed like Lacedaemon, by two chiefs of two
1704
families possessing equal power ; and that each dynasty
contained exactly the same number of generations in the
respective periods, into which the history is divided. This is
a fable like many others, usually called opinions
universally received among the Hindus, which Mr. Bantley
(Asiatic Researches, vol. 8, page 244) so justly exposes.
But the receiving it, as an universally acknowledged
opinion, led Sir William Jones, from the imperfect lists
composed by Radhakanta, to doubt whether any such
personages as the Indian princes of the families of the sun
and moon existed (Asiatic Researches, vol. 2, page 131).
Had Sir Willam consulted the various genealogies
contained in the different Purans, he would have found,
that this opinion, by which he was staggered, rested
entirely on the imagination of Radhakanta, or of some
person from whom he borrowed it, and could not be
supported by the remains of history in the Purans. So far
as I can learn from Pandits, that I have employed to
extract the Hindu genealogies from their books, there
was only one paramount king admitted at a time, and in
general the succession to this power was totally irregular,
not only between the tow great families, but among the
branches of the same family, and, as I have mentioned in
the account of Shahabad, was as irregular as the
succession in Ireland during the government of the families
descended of Heber and Heremon. It would even appear,
that the succession to the supremacy was not strictly
confined to the two families of the sun and moon, as Pandu
and his successors were in fact descended of Vayasa ; and
also that many intervals occurred, in which no one king
1705
possessed paramount authority.
The table given by Major Wilfort is highly valuable ;
although, when he says, that it is extracted from the Vishnu
Puran, the Bhagawat, and other Puranas, without the least
alteration whatever, we are only to understand, that Major
Wilford made no alteration on the table, after it was
extracted by his assistants from the Hindu records ; for the
genealogies contained in the different books, to which he
alludes, differ so much from each other, that no one table
could be constructed from them without making numerous
alterations. This interesting table is however exceedingly
valuable in showing how nearly these genealogies, by
taking the human age at a just valuation may be reconciled
with the real eras pointed out by Mr. Bentley, on
astronomical data. It must however be evident, that both
systems are liable to some doubt. In the first place there is
a very great difficulty in establishing any calculation upon
the number of generations contained in the Hindu
genealogies, owing to the very great carelessness, with
which they have been constructed. Besides numerous
transpositions it would seem, that in many parts, what in
one Genealogy is detailed as a succession of several
generations, is given in another genealogy as a list of
brothers, so that by the former process the length of a
dynasty is monstrously enlarged. Again in some
genealogies a whole dynasty is represented by a single
name, which occasions the most absurd anachronisms to
be commonly received as canonical, by such as have
studied only a part of these genealogies. These
anachronisms are so distressing, that some learned persons
1706
have considered as quite vain the attempt of founding any
thing like a regular chronology on the Hindu genealogies. I
hope however, that this judgement is too harsh, and that a
careful perusal of all the remains may lead to something as
satisfactory as chronologies of equal antiquity usually
admit. So far as I can at present judge, for I have not yet
procured any thing like a full copy of the genealogies,
the eras, even as curtailed by Major Wilford and Mr.
Bentley, would require to be considerably reduced. I
consider it necessary to reduce the former from the
numerous interpolations of brothers and collaterals in
place of sons. The argument of Mr. Bentley goes only to
show the manner, in which some former systems of
chronology, detailed in the Graha Mangjari, have been
deformed by the present system of Varaha Mihira ; but
these ancient systems were also mere astronomical
fictions, and, although their application to history was
not attended with such monstrous difficulties, as the
present system, there is nothing in its nature to show,
that it is in any degree connected with what actually
happened. One great difficulty occurs relative to the
deluge, which Mr. Bentley and Major Wilford agree in
placing immediately before the government of the family of
the Sun in Kosala commenced, so that they consider the
government of Swayambhuwa and his successors, kings of
Vithora (Betoor Rennell) near Kanpoor, as in the
antediluvian age, while Swayambhuwa they call Adam,
and Vaiwaswata father of the first king of Kosala, they
call Noah. One of the legends, on which this opinion
rests has been given by Sir William Jones (Asiatic
1707
Researches, vol.2, page 117); but this, as explained by
the Pandits, whom I have consulted, is not reconcilable
with the opinion above mentioned; and these Brahmans
insist, that no general deluge (Pralaya) has taken place
since the time of Swayambhuwa. The mistake consists in
supposing, that Satyabrata (Satjavrata) and Vaiwaswata
are the same person, and that whatever is related of one,
may be attributed to the era of the other. But the Brahmans
say, that these two personages, although the same soul in
different transmigrations, lived at very remote periods,
Satyavrata having been saved in an ark by God, when the
deluge happened, while in his subsequent birth as
Vaiwaswata, after an interval of many ages, he became a
law-giver (Manu or Mamu), and founded the city of
Ayodhya. It must be farther observed, that although the
legend concerning the escape of Satyabrata or Satyarupa
has a strong resemblance to the history of Noah, he is far
from being considered by the Hindus as being like Noah
the second father of the human race ; but he is said to have
died without children, and was born again in the family of
the Sun ; while Swayambhuwa was created to people the
world after the deluge ; and from him were descended the
first kings of India, who governed at Vithora, and who were
perhaps natives, although it is possible, that they may
have been Assyrians. In place therefore of allowing the
family of the Sun to have governed from the time of the
deluge, and that the Treta yug or silver age extended to
that event, we must, I imagine, allow the golden age or
Satya yug, and the government of the descendants of
Swayambhuwa to be subsequent to that period, and of
1708
course must bring the time, when the kingdom of Kosala
was founded, much latter than Major Wilford and Mr.
Bentley do. Could we depend on the accuracy of the
numbers, as Sir William Jones observes, there is
circumstance mentioned by Abul Fazil, that could throw
much light on this subject. It would appear that, the
Brahmans, whom that person consulted, had not always
applied to the history of their princes the astronomical
fictions of Varaha Mihira, and they placed the birth of
Budha, I presume the grandson of Atri, and son in law
of Vaiwaswata first king of Ayodhya, in the year 1366
before the birth of Christ (Asiatic Researches vol.
2.p.125). This entirely coincides with the opinion I have
above stated, and places the commencement of the
historical silver age, commencing with Budha, in the
1366th year before Christ, in place of the 2204th as given
by Mr. Bentley from the astronomical systems of the Graha
Mungjari. Such a reduction on the era of the silver age,
and foundation of the kingdom of Kosala I am far from
thinking absolutely necessary; but on the whole I am
inclined to believe, that it approaches near the truth than
the systems of Major Wilford or Mr. Bentley, although I
must confess, as I have mentioned, that the coincidence of
the two systems, founded on principles totally different,
affords a strong presumption in favour of the result.
In Hindu legend the appearance of certain persons
named Brahmadikas created by God, and commonly
called the progenitors of every living thing, forms a
remarkable era, but the accounts concerning these
personages are totally dissonant, as may be seen in the
1709
account of Major Wilford (Asiatic Researches, vol. 5, page
246). One authority makes the three sons of Swayambhuwa
to have been the Brahmadikas, placing them thus at the
commencement of the golden, and not at the beginning of
the silver age; and I have already stated my opinion, that
these were the aboriginal inhabitants or earliest
conquerors of India, but other authority give another
class totally different, and always containing Marichi, Atri,
Anggirasa, Pulastya, Pulaha, Kritu, and Vasishtha, while
others add Daksha, Bhrigu and Narada. The descendants
of these personages governed India both in spirituals and
temporals from the commencement of the silver age until
about the time when the Greeks made their appearance,
and numerous chiefs still claim to be of their family. They
are all called Brahmans, either as being created by the
God of that name, or perhaps more probably as being
persons more intelligent than those who preceded them; far
from being all of the sacred order, the greater part of their
descendants were princes, statesmen and soldiers, and one
in particular is stated to have been a merchant (Vaisya).
We have seen that Swayambhuwa, the founder of the
kingdom of Vithora, by the whole of what is called the
golden age (Satya yug), preceded Vaiwaswata, the founder
of the kingdom of Kosala, and the latter was the great
grandson of Marichi, while Budha, who founded the
adjacent kingdom of Kuru, and reigned at Pratisthan,
opposite to Prayag, about the same time with Vaiwaswata,
whose daughter he married, was the grandson of Atri. I
look upon these Brahmadikas, therefore, as the leaders
of a colony, which at the end of the golden age, settled in
1710
India, and assumed the name of Brahmans , as being
farther advanced in the arts than the descendants of
Swaymbhuwa, its more early princes. I look upon it also
as probable, that these personages came from western
Asia, introducing with them the Sangskrita language,
generally admitted to be radically the same with the
Persian dialect, while the languages spoken among all
the rude tribes that inhabit the fastnesses of India, and
which are probably remains of its ancient tongue, have
no sort of analogy to the languages of the west. In the
history of Kasmira, preserved by Abul Fazil, Kasyap, who
was the son of Marichi, is said to have introduced the
Brahmans (that is, a colony of civilized men) into that
country, and the traditions of Behar state, that he there
founded a city, of which I was shown some of the remains.
These no doubt were of much later date than the time of
Kasyap, although he may have been the founder of the city
to which they once belonged. One of the sons of Kasyap,
named Viwaswa, is supposed to be now the deity
presiding over the sun, owing probably to his having
introduced from Persia the worship of that luminary,
and, from flattery, his descendants were usually called
the family of the sun (Suryabangsa). His son
Vaiwaswata, who, in a former transmigration, had been
Satyabrata (perhaps Noah), founded the kingdom of
Kosala, long one of the most powerful in India, and built
the city of Kosalapoori, or Ayodhya.
If I am right in supposing that Budha was born about
1366 years before Christ, he being the son-in-laws of
Vaiwaswata, it is probable that this prince may have been
1711
born about the year 1399, and we may allow him to have
been 33 years old when he founded Ayodhya, and the
kingdom of Kosala. In the genealogies may be found
several different lists of his successors, who are commonly
supposed by Pandits to have succeeded each other from
father to son, by right of primogeniture, nor did one prince
fail to leave his kingdom to his eldest son for many
generations (Asiatic Researches, vol. 2, p. 130). This,
however, seems to be a mere supposition taken for granted,
because in some of the genealogies the names follow each
other without any remark, for the direct line failed in
Ambarisha, and went to the descendants of his brother;
and Bharata usurped the government for 14 years from his
elder brother Rama. The genealogies differ so much in the
names, number of persons, and order of succession, that
without a very careful examination of all that is to be found
concerning each person, little reliance can be placed on
the particulars, although it is evident, that these
genealogies have been taken from some common source;
and I have no doubt, that a careful examination would
enable the intelligent antiquary to remove many difficulties
and contradictions, that now appear.
Far from the princes of Ayodhya having enjoyed an
uninterrupted succession of supreme power for numerous
ages, and from father to son, very few of them would
appear to have been Chhatradharis, or lords paramount of
India; and there is even reason to suspect, that the family
at different periods was subject to great disasters, and
repeatedly lost the dominion of even Kosala. The learned
of Ayodhya informed the Pandit of the Mission, that
1712
their city had been three times destroyed, and that on
these occasions all the people were carried to heaven with
their Rajas Harischandra, Ambarisha, and Rama. The
successors of these princes again collected people to
occupy the city. The Pandits, whom I have employed,
have not been able to trace the passages in which the
two first catastrophes are mentioned; but the third is
known to every one. Several traditions, however, that I
have heard, confirm the opinion of Harischandra having
been expelled from Ayodhya, as he is said to have removed
the seat of government to Ellora, while his son Rohitaswa
lived at Rautas, and his grandson founded Champa, at
Bhagulpoor in Bengal. That Ambarisha also met with some
misfortune is probable; as in the Sri Bhagwat, he is not
succeeded by his son, and the line is carried on by
Sindhudwipa, his brother, while in the Bangsalata, his
immediate successor is Ritaparna, who, according to the
Sri Bhagwat was the grandson of Sindhudwipa, and until
the time of Ritaparna it is probable that the family did
not recover from its misfortune. The severe treatment of
his wife Sita, is said to have induced that princes to
excite her sons to rebel against their father Rama, and
this, more probably than his piety, sent him and his
adherents to heaven. Ayodhya, however, was rebuilt by
the son Kusha, who left a numerous offspring, that held the
until the reign of Vrihadbala. From Vaiwaswata to Rama
inclusive, the Sri Bhagwat reckons 55 princes, the
Mahabharat reckons 69, and the Bangsalata 78; but the
Ramayana of Valmika reckons only 36. This being it is
supposed by far the most ancient account, is probably the
1713
most correct, and we may suppose it to be free from the
interpolations of collateral successions and dynasties
introduced by later writers, and to be the actual succession
of the kings of Ayodhya; unfortunately Valmiki gives no
list of Ramas successors and the Purans, as usual, are
filled with numerous discordance. Vrihadbala, killed by
Abhimanaya in the great war at the commencement of the
iron age, was one of the most remarkable successors of
Rama. According to the Sri Bhagwat, he was the 27
th
descent from Rama. In the Mahabharat he is the 33
rd
, and
in the Bangsalata he is the 25
th
. As, owing to similar causes
these numbers are probably as much increased as the
predecessors of Rama, the number of princes, taking the
scale of the Sri Bhagwat reduced by that of Valmiki as a
guide, from Rama to Vrihadbala may have been 17, or
from the commencement of the silver to the commencement
of the iron age, 53 princes, which, they were also
generations of 3 to a century, would give a duration of
1766 years. There is no impossibility in admitting such a
duration; but I think, as I have said, that in all
probability it must be reduced. Major Wilford (table in 5
th
Vol. of Asiatic Researches ) has found in the Purans. 59
princes from the time of Rama to that of Chandragupta,
contemporary nearly with Alexander. Reducing these by
the scale of Ramas predecessors, we shall have 31
princes, which added to Rama and his predecessors, will
give in all 67 princess, if these commenced their
government 1366 years before Christ and ended it 300
years before this event, there will be on an average about
15 years for each prince which can only be understood
1714
of reigns, and not of generations. On these grounds,
Vaiwaswata being placed in the year before Christ, 1366,
Rama will be placed in 775, and Vrihadbala, or the
commencement of the historical iron age in the year
512. But, if the antiquary prefers with Major Wilford to
consider these 67 as generations, we must double the
length of each period; that is, we must say, that Ayodhya
was founded 2732 years before Christ, that Rama
flourished 1550 years before that event, and that
Vrihadbala was killed in the 1024.
It must be observed, that in the Purans, little
amplification seems to have been made in the family of the
moon, as from Budha, one generation after Vaiwaswata to
Krishna, contemporary with Vrihadbala, the Sri Bhagwat
reckons 55 persons, a difference of only two persons from
that which is given by the correction that is required in the
list of the family of the sun, by comparing Valmiki with the
Sri Bhagwat; and this coincidence, I consider as in a great
measure proving, that the nature of the correction which I
have adopted is not subject to material error, so far as
relates to the number of successions; but it decides nothing
as to the points of whether we are to consider these as
reigns or as generations.
The people of Ayodhya imagine, that after the
death of Vrihadbala, their city was deserted, and
continued so until the time of Vikrama of Ujjain, who
came in search of the holy city, erected a fort called
Ramgar, cut down the forests by which the ruins were
covered, and erected 360 temples on the places sanctified
by the extraordinary actions of Rama, of his wife Sita, of
1715
his brother Lakshman, and of his General Mahavira. The
only foundation probably for such a tradition is, that
Vikrama may have erected some temples, and that in the
Mahabharata the genealogy of the family it continued no
lower than the time of Vrihadbala, as being foreign to the
subject of the book; but in the Sri Bhagwat Vrihadbala is
succeeded by 29 princes, and in the Bangsalata by 24.
These, taken according to the scales of Ramas
predecessors in Valmiki and the Sri Bhagwat, would give
18 princes, and this will give us 279, or 558 years,
according as we call these successions reigns or
generations, brining the existence of the family down to the
time nearly of Alexander; but none of the latter princes
rose to considerable power, and they were vassals of the
Kings of Magadha. Their existence, however, throws a
great doubt on the whole story concerning Vikrama.
This Vikrama is usually suppose to have been the
personage from which the era called Sambat is derived,
and, according to the reckoning used in Kosala, this era
commences 57 years before the birth of Christ, so that
the city had been then deserted about 280 years. How the
places remarkable for the actions of the God could be
traced after such a long interval, and amidst the forest,
seems rather doubtful; and the doubt will be increased,
if it supposed that they latter Vikarama, the son in law of
the Emperor Bhoja, was the person who constructed the
temples at Ayodhya. This I am inclined to think was
probably the case, for although Rama was probably
worshipped before the time of elder Vikrama, yet his
worship as that peculiarly distinguishing a sect of
1716
begots, seems to have been first established by
Ramanuja about the time of the latter Vikrama, who
may from thence be supposed peculiarly eager to
discover the traces of the deity of his own sect.
Unfortunately if these temples ever existed, not the smallest
trace of them remains to enable us to judge of the period
when they were built; and the destruction is very
generally attributed by the Hindus to the furious zeal of
Aurangzebe, to whom also is imputed the overthrow of
the temples in Benares and Mathura. What may have
been the case in the two latter, I shall not now take upon
myself to say, but with respect to Ayodhya the tradition
seems very ill founded. The begot by whom the temples
were destroyed is said to have erected mosques on the
situations of the most remarkable temples; but the
mosque at Ayodhya, which by far the most entire, and
which has every appearance of being the most modern,
is ascertained by an inscription on its walls (of which a
copy is given) to have been built by Babur, five
generations before Aurangzebe. This renders the whole
story of Vikrama exceedingly doubtful, specially as what
are said to be the ruins of his fort, do not in any essential
degree differ from those said to have belong to the ancient
city, that is consist entirely of irregular heaps of broken
bricks, covered with soil, and remarkably productive of
tobacco; and, from its name, Ramgar, I am inclined to
suppose that is was a part of the building actually
erected by Rama.
Although I did not fail to visit the place, and
whatever the Hindus reckon remarkable, I did not choose
1717
to take any measurements, so as to draw with any
accuracy of plan of the space which the ruins occupy, as
the doing so might have given offence to government of
the Nawab Vazir, in whose territory, separated from this
district only by the river Sarayu, they are situated.
I may in a general manner observe, that the heaps of
bricks, although much seems to have been carried away by
the river, extend a great way, that is, more than a mile in
length, and more than half a mile in width; and that
although vast quantities of materials have been removed
to built the Muhammedan Ayodhya or Fyzabad, yet the
ruins in many parts retain a very considerable elevation;
nor is there any reason to doubt, that the structure to
which they belong, has been very great; when we
consider, that it has been ruined for above 2000 years.
None of the Hindu buildings at present existing are in the
least remarkable either for size or architecture, and they
are all not only evidently, but avowedly, quite modern, that
is, they have been all erected since the reign of
Aurangzebe, or most of them even within the memory of
man. Although they are built on what I have no doubt
are the ruins of the palace that was occupied by the
princes of the family of the sun, their being built on the
spots, where the events which they are intended to
celebrate, actually happened, would have been extremely
doubtful, even had the elder Vikrama built temples on
the various places which had been destroyed by
Aurangzebe, so that the spots selected by Vikrama might
be known by tradition; but the whole of that story being
liable to strong suspicion, we may consider the present
1718
appropriation of names to different places as no better
founded than the miracles, with several of them are said to
commemorate.
It is said that in digging for bricks many images
have been discover, but the few which I was able to trace
were too much broken to ascertain what they were meant to
represent, except one at the convent (Akhara) of Guptar,
where Lakshman supposed to have disappeared. This
represents a man and women carved on one stone. The
latter carries somewhat on her head, and neither has
any resemblance to what I have before seen. The only
thing except these two figures and the bricks, that could
with probability be traced to the ancient city, are some
pillars in the mosques built by Babur. These are of black
stone, and of an order which I have seen nowhere else,
and which will be understood from the accompanying
drawing. That they have been taken from a Hindu
building, is evident, from the traces of images being
observable on some of their bases; although the images
have been cut off to satisfy the conscience of the begot.
It is possible that these pillars have belonged to a temple
built by Vikrama; but I think the existence of such temples
doubtful; and, if they did not exist, it is probable that the
pillars were taken from the ruins of the palace. They are
only 6 feet high. There is a Shiva Lingga called
Nageshwar, which is called on by all the pilgrims to
witness their faith, when they have performed the usual
ceremonies; and this supposed to be the oldest image of the
place. As Lakshman the brother of Rama is supposed to
have founded one of the orders of Yogis, there is a
1719
probability that the great God was a principal object of
worship at the court of his brother, and this image may
actually have then existed, as from its form, if kept from the
weather, it may have lasted from the first origin of
things; but it leads to no conclusions, and may be of very
modern date. Could we believe what is said of the chief
objects of worship now at the place, they would be of
singular curiosity. They are images said to the present
Rama, Lakshman, and Sita, made by the first personage,
and thrown by him into the Sarayu, when he was about to
proceed on an expedition to the Indus. In modern times
they were divulged to a fortunate merchant by the
ordinary course of dreaming. He drew them from the
river, and built temple for them, which was destroyed by
Aurangzebe, but the images were allowed to escape, and
Ahilya, the widow of Holkar, lately built for them a
small temple, which is only opened at peculiar times,
and only to the faithful. Sitting aside the dream, the
escape of the images from Aurangzebe, as they are made of
gold, renders the story very problematical. They are about
a span high, and were so covered with flowers, and shown
in so dark a place, that my people who went to worship
could form no opinion either as to their shape or
materials.
I procured a good many old copper coins, and many
were said to be of the Hindu Kings; but on examination,
except two, all appear to contain Arabic inscriptions, but in
very old characters, and I had similar ones at Agra. One
said to have been found in the Sarayu retains a defaced
figure in the human form; and another the figure of a
1720
lion. These are probably Hindu coins, but they contain
no legend, nor anything to indicate that they belonged to
princes of the family of the sun.
The person who finally expelled the family of the sun
from Ayodhya, is not stated by tradition, nor, so far as I
can learn, in legend, but the learned of this district have
heard of the dominion of the Cheros, although this impure
tribe has here left no monuments of its power, the place
being far removed from the seat of government. (pages
325-337)
1601. What is apparent from the above report of Martin is
that he was the first person to tell us about inscriptions on the
wall of the disputed building to say that it was built by Babar.
We have also noticed that Buchanan must have visited the area
between 1807 to 1814, i.e. after about 280 years (if the disputed
building was constructed by Babar in 1528 AD). Martin
however, has observed that the building appears to be most
modern. He also found that locally the people said that after
destructing a temple, the Mosque was constructed by
Aurangzeb. It is difficult to believe that till 1807 there was no
Hindu person capable of reading and writing Persian or Arabic,
as the case may be, to find out what was written in the said
inscriptions in the Mosque and to tell others that the disputed
building was actually constructed by Babar. Buchanan also does
not appear to have actually visited the disputed building in order
to collect the details as is evident from the next para that he did
not do so (collect measurement) for the reason that it might have
offended the Government of Nawab Vazir. We may notice
hereat that upto 1814 and even thereafter, the entire area of
Avadh was within the sovereignty of Nawab Vazir of Lucknow
1721
though for some part of defence etc. Nawab Vazir has entered
into a treaty with East India Company in 1801 but only the area
which was in the territory of Banaras was within the authority of
East India Company and rest of the part, particularly Avadh,
was not within the reigning territory of East India Company.
The text of the alleged inscriptions, the number of inscriptions
etc. are not mentioned in the report. The language, however,
shows that there was only one inscription which could be seen
by Buchanan. The text of the inscription, as existed when
Buchanan visited Ayodhya between 1807 to 1814, has not been
placed before us in an authentic manner though plaintiffs (Suit-
5) has sought to rely on a text of the inscription which he claims
to have collected from British Museum but the same having not
been proved in accordance with Evidence Act, we find it
difficult to place any reliance thereon. Even if we place reliance
thereon, nothing helps us to form an opinion that the building in
dispute was actually constructed in 1528 by Mir Baqi under the
command of Babar.
1602. The affidavit dated 17
th
December, 1999 was filed by
Sri Deoki Nandan Agarwala plaintiff no.3 (Suit-5) where in para
3, 4 and 5 he said:
"3. That the English documents written in hand script
prevalent in the past and Persian/Arabic and Nustalik
annexures thereto were obtained by Vishwa Hindu
Parishad, New Delhi through the Vishwa Hindu Parishad
(U.K.) during the course of negotiations for resolving the
tangle relating to the Sri Rama Janma Bhumi, by mutual
dialogue through the mediation of the then Prime Minister
of India in the year 1992, from the British Library where
the original manuscript of the document is lodged. The
1722
original leter from the General Secretary of the VHP U.K.
Dated 23 Sept. 1992 to the VHP New Delhi is also being
filed with this affidavit.
4. That the documents obtained from the British Library
U.K. are not available anywhere else and appear to be
unpublished. The originals cannot be moved from the
Library and cannot therefore be produced. Their copies
supplied by the Library are thus admissible in evidence.
5. That the documents in English are in old style hand
written script of the early nineteenth century, with which I
am well acquainted. I have deciphered them and made a
typescript of the same, which is also being filed. I say that
the type script of the handwritten documents in English is a
correct copy of the same."
1603. The letter dated 23
rd
September, 1992 referred to in
para 3 of the aforesaid affidavit appears to have been sent by
one Sri Kishor Ruparelia- Gen. Sec. 48 Wharfedale Gardens,
Thornton Heath, Surrey UK addressed to Sri Jashwant Rai
Gupta, Vishwa Hindu Parishad, Sankat Mochan Ashram, New
Delhi. The relevant extract thereof is as under:
"I am sending herewith photocopies, obtained from the
British Library, of the following documents kept under Ref
MSS. EUR. E73 and filed as records by Dr Buchanan
1. Pages 1 & 2, written by Dr. Buchanan, heading:
Translation Gorakhpur Inscript No. 1
2. Pages 3 & 4, a letter written by Dr Buchanan
3. Page 5, a Sanskrit inscription this does not seem to
relate to Ayodhya, but I am sending this because the page
is part of continuation
4. Page 6, heading: Inscription on a mosque at
1723
Ayodhya Gorakhpur No.1.
5. Page 7, this page seems to contain Persian and
Arabic writing but no heading or description i.e. om
English written on the page.
1604. This letter is paper No.189C2/3. Paper No.189C2/4-5
appears to be translation of some Persian or Arabic words by
somebody at Gorakhpur. In respect to the period Paper
no.189C2/4-5 the following extract refers to AH935.
"N.B. The words signifying "There is lasting
charity" or "good works are lasting" also mean "the
charity of Baqee" and form an anagram of the year of the
erection viz : 935."
1605. Thereafter paper no.189C2/8-9 contains the Persian or
Arabic text to which we are not clear as to whether it is in
respect to the inscriptions said to be fixed on the building in
dispute or else.
(Caligraphy page-1)




(Translation not available)


( )
(Transliteration)
Bismillahir-Rahmanir-Rahim
Ahadu an la ilaha ill lallah, wa ahadu anna
Muhammadun Aabduhu wa rasuluhu.
(Rab-un-Allahu Bakkhittin Abdezaif Mohammad Fateh)
(English Translation)
1724
In the name of Allah, the most Gracious, and the Most
Merciful.
I bear witness that there is no God except Allah, and I bear
witness that Muhammad is Allah's devotee and His
Messenger (Prophet)
(Rab-un-Allahu Bakkhittin Abdezaif Mohammad Fateh)
(Name of the Calligrapher)




















(Translation not available)
(Calligraphy page-2)


1725




(Translation not available)


- - -
- - -
Transliteration
La ilaha illa-llah, Muhammadu-rasulu-llah
Bismillahir-Rahmanir-Rahim
Qul huwa Allahu ahad (1)
Allahus-samad (2)
Lam yalid walam yulad (3)
Walam yakun lahu kufuwan ahad (4)
( Englidh Translation)
There is no God except the Allah, Muhammad is the devotee
and Prophet of Allah.
In the name of God, Most Gracious, Most Merciful
Say: He is God, the One and Only; (1)
God, the Eternal, Absolute; (2)
He does not beget, nor is He begotten; (3)
And there is none comparable to Him. (4)
(Surah 112: Al-Ikhlas)
1606. The English translation (interpretation) of the aforesaid
verses (though incomplete) has been given in paper no.
189C2/10-11, which has also been checked by the Court since
one of us fortunately is conversant in Persian and Urdu. It reads
as under:
"By order of King Babur whose Justice is a building
reaching to the mansions of heaven, this alighting place of
the angels was erected by Meer Baqee a nobleman
1726
impressed with the seal of happiness.
There is lasting charity in the year of its construction
what declares is manifest "that good works are lasting"
N.B. The words (Bavad Khair Baqee)
signifying "There is lasting charity" or "good works are
lasting" also mean "the charity of Baqee" and form an
anagram of the year of the erection viz : 935.
From the Tughra
There is no God but God, and Moohammad is the
Prophet of God -
Say, O'Moohammad, that God is one, that God is
holy, unbegetting and unbegotten, and that he hath no
equal.
(Rab-un-Allahu Bakkhittin Abdezaif Mohammad Fateh)
(Name of the Calligrapher)
2
d

Nustalick
The victorious lord, Moohey ood Deen, Aulumgir,
Badshah, the destroyer of Infidels; the son of Shah
Juhan; the son of Juhangeer Shah; the son of Ukbar
Shah; the son of Humayoon Shah; the son of Babur
Shah; the son of OOmar Sheikh Shah; the son of
Soolatan Uboo Saeed; the son of Sooltan Moohummad
Shah; the son of Meeran Shah; the son of the Shahib i
Qiran Meer Tymoor-
N.B. Sahib i qiran is applied to a Prince who has
reigned above 30 years.
From the Tughra
In the name of God, most merciful. I testify that there
is no God but God- He is one, and without equal- I also
testify that Moohummad is his Servant and Prophet.
1727
This was engraced/ upon the propitious date of this
noble erection, by this weak slave Moohummud Funa Ullah
N.B. The words in the parenthisis are not on the Insc., but
understood.
Nustalick writing
We are informed by the ancients who were acquainted
with the these facts that there was formerly a Prince named
Tugli Khan Oimyeed throne. His Wuzeer had a daughter
betrothed to Moosa Ashiquan. (Lit. The comforter of
Lovers). After some time the Wuzeer departed from this
dwelling of mortality to the abode of Eternity. --
The king having sent written orders for the purpose of
sezing the property in the Wuzeer's house; at that moment
Moosa Ashiqan was struck with the reflection that "This
World is nothing". He gave orders that all the people should
plunder and carry off whatever money and effects were in
his house' The people did as he directed. As soon as the
plundering was over, he enquired whether anything
remained. The attendants told him that there remained some
grain. He directed them to carry off that also. After this he
again made enquiry, if anything was yet left. The servants
replied that there was only a piece of coarse canvas or Taut,
upon which the horses were wont to eat their gram". "That"
said he "will be of use to me". In short having taken and
torn althrough the middle and threw it over his shoulders
(or neck) he became a Durwish. --
Babur one of the Princes, hearing the report of his
becoming a Durwish and the other circumstances, privately
presented himself before his Highness. Beholding the
wretched condition of Babur, he gave him some sweetmeats
to eat and (addressing him) "Thou", said his Highness"
shalt be King "Babur arose and having made his Salam,
1728
was departing. His Highness again said "I am annoyed by
the Hindoos who are constantly ringing their Bells- When
thou becomest King thou shalt build a Musjid at this place.
Sometime afterwards Babur mounting the royal
throne was created King; but forgot His Highness's
directions. Moosa Ashiqan sending a person from himself
reminded him of it. Upon this the Soobadar received His
Majoxty's commands--Meer Buqaoola Khan then Soobedar,
and he erected this Massjid."
1607. Sri Ravi Shankar, Senior Advocate, Sri P.N.Mishra,
Sri Hari Shankar Jain, Sri R.L.Verma, Advocates, learned
counsels for Hindu parties sought to refer to the above
documents to show that this is the extract of the report and
documents of Dr. Buchanan himself and makes it very clear that
the building in dispute was constructed much later what is being
claimed as it contains the name of Emperor Alamgir
(Aurangzab) also. As we have already said, the above
documents were not proved by the concerned party and a
properly obtained document from British Library, Oriental
and India Office Collections has also not been produced. It is
therefore difficult for us to place any reliance on the said
documents.
1608. The worship of places by Hindus, however, has been
noticed in the History, Antiquities, Topography And Statistics
of Eastern India (supra) published in 1838. In Vol. I at page
195, Martin has observed:
"It must be observed, that the Hindus very often worship
(Puja) without any temple or images. There are places,
however, that are reckoned more holy than the house..."
1609. The long passage we have quoted from several pages
of Martin's Eastern India, Vol. II above has some reason. We
1729
have no bias or prejudice against the agents of East India
Company or the then British Government, but the manner in
which they have dealt with the Indian ancient scriptures and
have written down about its culture, religion, society etc. needs
some deeper consideration. In fact, the history of India, which is
substantially embodied in ancient religious scriptures, has been
initially attempted to be penned down by the western writers
after advent of East India Company. In 18
th
and 19
th
century a
mass of work has been undertaken by them which has aroused
anxiety and has drawn attention of the people abroad to know
more about India. Before making further comments, one thing
which is a matter of appreciation, we cannot forget is that
whatever was written by western so called intelligentsia mainly
in the two centuries as said above, at least has given a
foundation or a point of commencement to others, whether in
India or outside, to go for further research in the matter and
endeavour to place the correct history of this sub-continent
before the world at large.
1610. The ancient scriptures in India was basically written in
Sanskrit irrespective of the script. It was not a language of the
common man. Therefore, virtually substantial section of the
sub-continent comprising Hindustan at that time was in dark
about the contents, meaning and the message derivable from
those scriptures. It was confined to a particular class, i.e.,
Brahmans and there also a very few were learned having some
deeper knowledge of those scriptures, otherwise general class
was more satisfied with the superficial working knowledge
sufficient for their day to day earning and survival.
1611. The East India Company after its initial few steps
towards India, brought such a huge revenue to England that the
1730
people thereat were simply stunned and shocked to find out as
to how this part of the Country could muster such a huge wealth.
Another surprising aspect was that the Indian sub-continent was
under the attack/invasion by outsiders for almost a thousand and
more years in the past and had continuously been looted by
them. Massive wealth continuously was driven off from the
Country, yet when the merchant companies of Britishers in the
form of East India Company visited India, in the first one and
half decade i.e. upto 1613, it showed remarkable earning to their
shareholders and public at large in England. This created great
anxiety amongst the Britishers to know more about India. It also
inspired other European Countries as we have seen that almost
simultaneously the merchant ships travelled India through sea
routes from the Countries like Portugal, France and England
obvious. Trade from India to other Countries, i.e. Africa, Arab,
China etc. had been going on since long and time immemorial
as a result whereof merchants were able to garner extraordinary
wealth by exporting several things like spices, sandalwood etc.
from India. Besides fertile land of this Country also help in
producing wealth. They also found that amongst the Hindus, age
old traditions, religious faith carried down from generations to
generations from time immemorial and had not got diluted
despite several religious attacks, conversions, etc. All these
things, which were really surprising, aroused lot of anxiety
amongst the Europeans to know more about this Country.
1612. According to their concept, the oldest culture in the
world was Roman and Greek and they knew nothing more than
that. It was really difficult for them to believe that a much more
advanced and that too more ancient culture could have existed
in this part of the world for such a long time and has
1731
successfully faced all bad times to survive while the Roman and
Greek culture has perished long back. With this idea lots of
people from Europe came to India and tried to find out the
source of its cultural and religious history from the written work
whatever was available. Since, the work was mainly in Sanskrit,
thus the written material was also available with the selected
Brahmans. Several kinds of manuscripts they possessed which
were collected by these western people in one or other way.
They tried to find out in their own way the most authenticated
and original manuscripts on the subject concerned. A language,
a culture which was several thousands and more years old, it is
surprising that these western intelligentsia class claim to have
learnt and understood and that too achieved mastery. They dealt
with the above collected material in their own way. Without
making any serious comment on this aspect, suffice to mention
that the spirit, the context of real intention of a culture which has
developed in several thousand years is improbable, if not
impossible, to be understood in such a short time. Even today
those who are constantly studying and dealing with those
matters, are still undergoing rigorous discussion, research and
investigation to understand the correct and real intention behind
the particular words, sentences, phrases and verses, as the case
may be.
1613. The only thing which we really find commendable is
that the zeal of the western intelligentsia to know more about the
Indian ancient culture brought out the ancient literature from the
confines of the Brahmans and as a result of its translation in
English and other languages, the things became accessible to the
entire lot so that they may also look into the matter, ponder over
it so as to appreciate and understand. In fact this translation
1732
attracted the world people to go for more indepth research,
discoveries and investigation and that is how the things started
and today in 21
st
century we find several new and startling facts
which belie a lot of settled concepts of the western writers of
18
th
or 19
th
century.
1614. The casual manner in which the long genealogy
covering a very long period was found inconceivable by these
writers and has been shortened at their whims and conjectures
only because they could not have a complete chain is really
startling. It means that if I am unable to tell the chain of my
ancestors to five or seven or ten generations, that would mean
that I have no such past chain of generation or it can be reduced
to the extent of missing part. Non-availability does not mean
non existent. No one can accept that merely because somebody
could not give the detail of past generations, that would mean
that he has no such ancestry. The casual and contemptuous
manner in which Dr. Buchanan or Martin in the above work,
i.e., Eastern India (supra) have dealt with the things we have
quoted give a few example. If some needs a little more can be
demonstrated from page 433 and onwards, some part of which
we may notice hereunder :
"The highest science is here reckoned the theology of
the Vedas, which is more studied, than would appear from
the reports of the Pandit of the survey, who like other
Bengalese holds this science, if such it can be called, in
great contempt. The doctrines of Sangkara are chiefly
followed; and the works most commonly studied are the
Vedantasar, composed by a pupil of Awaitananda, a
Brahman of the south, who dedicated his life to religion;
the Pangchadasi, and the ten Upanishad Bhashyas of
1733
Sangkara. The theologians here insist, that every word,
sentence and verse in the Vedas, as they now exist, was
formed by Brahma before the earth, and that Vyasa did not
alter a syllable; but only arranged the original parts into
four books, which previously had been comprehended in
one. All mention therefore of events, that have happened
since the creation, is supposed to be prophetical. Such, I
believe, is the opinion, that very generally prevails among
the Brahmans of the south, as well as those here; and,
having been communicated to the learned in Europe, was
supposed by them to imply, that the books now called the
Vedas were the work of a great lawgiver named Brahma,
who formed the laws of the Hindu nation, and introduced
science. When it was discovered, that these works
mentioned many personages, who lived very long after the
commencement of the Hindu government, as the power of
prophecy could not be received by any one but a Hindu, it
was justly concluded, that they were not the works of the
lawgiver Brahma, who in fact is a mere creature of
imagination; and Mr. Pinkerton is fully justified in calling
the Vedas modern forgeries, even had Mr. Colebrooke
proved that they were written by Vyasa, and that Vyasa
lived 12 centuries before the birth of Christ; for in
comparison of the commencement of the Hindu history,
before which the Vedas are alleged to have been written,
even this distant period of Vyasa is but as yesterday. But
that the Vedas, which now exist, were written by Vyasa the
son of Parasara, or so early, seems to me completely
incompatible with the mention made in them of the success,
that had attended the ceremony used at the coronation of
1734
Janmejaya the son of Parikshita, by which he had
conquered the world; for Janmejaya was grandson of
Abhimanya, who was the great grandson of Vyasa the son
of Parasara, and it is altogether impossible, that so remote
an ancestor should live to celebrate the conquest of the
world by his descendant. But besides this conquest is not
likely to have been mentioned by any contemporary author;
for in all probability the supreme government of India was
not then vested in the spurious offspring of Vyasa, but in
the house of Jarasandha. Mr. Colebrooke indeed states,
that besides the descendant of Vyasa he has heard from the
Brahmans of another Janmejaya son of Parikshita; but on
a careful examination of the genealogies, extracted from
the Purans by Manogyadatta, I can find no such person;
nor can that learned Pandit recollect any such, although
there are many Janmejayas, especially the son of Puru,
kind of Pratishthan, and the names are so alike, that they
may readily have misled the Pandits consulted by Mr.
Colebrooke, speaking from recollection. If a Vyasa,
therefore, was author of the present Vedas, it was not the
son of Parasara, but some person, who probably lived
shortly before Sangkara Acharya; and many in fact allege,
that the instructor of this great doctor was named Vyasa. If
so, the author, or compiler, or perhaps rather corrupter of
the Vedas, lived about the ninth or tenth century of the
Christian era, in the age emphatically called dark, and to
judge from the account given of the Vedas by Mr.
Colebrooke, the work is worthy of the age.
It is probable, however, that before this time, there
existed a system of science (Veda), extending, according to
1735
a passage quoted by Mr. Colebrooke, not only to the four
kinds of sacred knowledge, detailed in the present Vedas,
but to grammar and history, the first of which in the
passage alluded to is called the chief of the (Vedas)
sciences, although the books now called Vedas do not treat
on the subject. The historical part, there is reason to think,
was valuable; but being irreconcilable with doctrines,
which the author wished to establish, was totally new
modelled in separate works called the Purans. Although all
these go under the name of Vyasa, there is certain grounds
to doubt of his having composed the whole, as it seems
scarcely possible, that any one man in his senses would
attempt to pass on the credulity of mankind a number of
books, treating on the same subject in manners totally
discordant and contradictory, as happens in these works.
Many circumstances mentioned in these Purans, would
show the time in which Vyasa actually lived, could any of
these works be traced with certainty to him; and I suspect,
that not only the historical part (Purana) of the ancient
system of science, but that written by Vyasa has been new
modelled in the various works now called Purans, all
probably very modern, and composed by various persons."
1615. The long observations, we have just made are in the
context of the fact that the Buchanan's survey relates to the
earliest part of 19
th
century, i.e., 1807 to 1814. Aurangzeb died
in 1707 after having ruled for about 50 years. Therefore, the
memory of the people in respect to the incidents which took
place during Aurangzeb were just 100 to 150 years old in
comparison to that of Babar who was there about more than 275
years back. The people's memory is better reliable in respect to
1736
the recent incidents in comparison to ancient one. The belief of
the local people about the destruction or construction at the
disputed site, in the same way noticed by Tieffenthaler about 50
years back from the period of Buchanan and same thing noticed
by Buchanan, in our view, ought to have been given more
reliability than simply discarding the same on the basis of an
inscription, the possibility whereof was always to be installed at
any later point of time. In the absence of any material or
anything to show that it was fixed almost 272 years back and the
belief of the local people was perverse, we find it difficult to
rely only on the observations of Buchanan based on inscriptions,
the language whereof was not known to him and there is nothing
to show that he could read or understood it.
1616. Sri P.N. Mishra, learned counsel further submitted that
had the building in dispute constructed in 1528 and that too at
the command of Emperor Babar, it would be inconceivable that
Abul Fazal Allami in his work Ain-e-Akbari would have
failed to notice the same though, if correct, it would have been
the work of Akbar's grandfather. He refers to the Ain-e-
Akbari written by Abul Fazal Allami, translated in English by
H. Blochmann edited by Leiut. Colonel D.C. Phillott, first
published 1927-1949 reprint 1989 published by Low Price
Publications, Delhi. He pointed out that Abul Fazal Allami has
referred to "Ayodhya" and its religious importance for Hindus
and also certain religious places of Muslims. Therefore, it is
improbable that he would have missed or ignored to mention
about a grand mosque constructed by grandfather of Emperor
Akbar though has mentioned about other places of Ayodhya.
This shows that till the date when the aforesaid work was
written by Abul Fazal, building in dispute had not came into
1737
existence and it is incorrect to suggest that it was constructed in
1528 AD. He explained that this is the reason why we do not
find any such mention in the work of Goswami Tulsidas, a great
follower of Lord Ram. From Volume 1 of Ain-e-Akbari, Sri
P.N.Mishra placed certain extracts from page 162 and onwards
to show that a large number of places of worship were
constructed in 983 AH and onwards (see page 179, Ain-e-
Akbari) and that tax levelled on non-Muslims was abolished in
987 AH. About the abolition of tax on non-Muslims, page 198
of Ain-e-Akbari Vol.-1 quote as under :
In this year the Tamgha (inland tolls) and the Jazya
(tax on infidels), which brought in several krors of dam
were abolished, and edicts to this effect were sent over the
whole empire.
1617. He also referred to pages 201, 202 and 203 to show
that the policy of Akbar was not so fanatic and was judicious to
Hindus also. Had there been such a construction at the religious
place of Hindus, the Akbar would have allowed it to be
removed. The various orders and actions as noticed by Allami
in Ain-e-Akbari Vol.-1 on pages 201 and onwards are as
under:
"His majesty was now [990] convinced that the
Millenium of the Islamitio dispensation was drawing near.
No obstacle, therefore, remained to promulgating the design
which he had planned in secret. The Shaykhs and Ulamas
who, on account of their obstinacy and pride, had to be
entirely discarded, were gone, and His Majesty was free to
disprove the orders and principles of the Islam, and to ruin
the faith of the nation by making new and absurd
regulations. The first order which was passed was that the
coinage should show the era of the Millenum, and that a
1738
history of the one thousand years should be written, but
commencing from the death of the Prophet. Other
extraordinary innovation were devised as political
expedients, and such orders were given that one's senses got
quite perplexed. Thus the sijda, or prostration, was ordered
to be performed as being proper for kings; but instead of
sijda, the word zaminbos was used. Wine also was allowed,
if used for strengthening the body, as recommended by
doctors; no mischief or impropriety was to result from the
use of it, and strict punishments were laid down for
drunkenness, or gatherings and uproars. ....
"Beef was interdicted, and to touch beef was
considered defiling. The reason of this was that, from his
youth, His Majesty had been in company with Hindu
liberation, and had thus learnt to look upon a cow- which
in their opinion is one of the reasons why the world still
exists- as something holy. Besides the Emperor was subject
to the influence of the numerous Hindu princess of the
Harem, who had gained so great ascendancy over him as to
make his forswear beef, garlic, onion, and the wearing of a
beard, which things His majesty still avoids. He had also
introduced, though modified by his peculiar views, Hindu
customs and heresies into the court assemblies, and
introduces them still, in order to please and win the
Hindus and their castes; he abstained from everything
which they think repugnant to their nature, and looked upon
shaving the beard as the highest sign of friendship and
affection for him. Hence this custom has become very
general. Pandering pimps also expressed the opinion that
the beard takes its nourishment from the testicles; for no
eunnch had a beard; and one could not could exactly see of
what merit or importance it was to cultivate a beard.
1739
Moreover, former ascetics and looked upon carelessness in
letting the beard grow as one way of mortifying one's flesh,
because such carelessness exposed them to the reproach of
the world; and so, at present, the silly lawyers of the Islam
looked upon cutting down the beard as reproachful, it was
clear that shaving was now a way of mortifying the flesh,
and therefore praiseworthy, but not letting the beard grow.
(But if any one considers this argument calmly, he will soon
detect the fallacy.) Lying, cheating Muftis also quoted an
unknown tradition, in which it was stated that 'some Qasis'
of Persia had shaved their beards. But the words ka-ma gaf
alu ba'z' 'l-quzdt (as some Qasis have done), which occur in
this tradition, are based upon a corrupt reading, and should
be ka-ma yaf 'a' u ba l-gusat (as some wicked men have
done). . .
"The ringing of bells as in use with the Christians,
and the showing of the figure of the cross, and . . . . . . and
other childish anything of theirs; were daily in practice. The
words Kufr shay shud, or 'heresy' 'became common',
express the Tdrikh (985). Ten or twelve years after the
commencement of these doings, matters had gone so far that
wretches like Mirza Jani, chief of Tattah, and other
apostates, wrote their confessions on paper as follows :- 'I,
such a one, son of such a one, have willingly and cheerfully
renounced and rejected the Islam in all its phases, whether
low or high, as I have witnessed it in my ancestors and have
joined the Divine Faith of Shah Akbar, and declare myself
willing to sacrifice to him my property and life, my honour
and religion'. And these papers- there could be no more
effective letters of damnation- were handed over to the
Mujtahid ( Abu'l Fazl) of the new creed, and were
considered a source of confidence or promotion. The
1740
Heavens might have parted as under, and earth might have
opened her abyss and the mountains have crumbled to dust!
"In opposition to the Islam, pigs and dogs were no
longer looked upon as unclean. A large number of these
animals was kept in the Harem, and in the vaults of the
castle, and to inspect them daily was considered a religious
exercise. The Hindus, who believe in incarnations, said
that the boar belonged to the ten forms which God
Almighty had once assumed.
"God is indeed Almighty- but not what they say."
"The saying of some wise men that a dong had ten
virtues, and that a man, if he possesses one of them, was
saint, was also quoted as a proof. Certain courtiers and
friends of His Majesty, who were known for their excellence
in every department, and proverbial as court poets, used to
put dogs on a tablecloth and feed them, whilst other
heretical poets. Persians and Hindustanis, followed this
example, even taking the tongues of dogs into their own
mouths, and then boasting of it.
"Tell the Mir that thou hast, within thy skin, a dog and
a carcass.
"A dog runs about in front of the house; don't make
him a messmate.
"The ceremonial ablution after emission of semen was
no longer considered binding, and people quoted as proof
that the essence of man was the sperma genitale, which was
the origin of good and bad man. It was absurd that voiding
urine and excrements should not require ceremonial
ablutions, whilst the emission of so tender a fluid should
necessitate ablution; it would be far better, if people would
first bathe, and then have connexion.
"Further, it was absurd to prepare a feast in honour
1741
of a dead person; for the corpse was mere matter, and could
derive no pleasure from the feast. People should therefore
make a grand feast on their birthdays. Such feasts were
called Ash i haydt, food of life.
"The flesh of a wild boar and the tiger was also
permitted, because the courage which these two animals
possess would be transferred to any one who fed on such
meat.
"It was also forbidden to marry one's cousins or near
relations, because such marriages are destructive of mutual
love. Boys were not to marry before the age of 16, nor girls
before 14, because the offspring of early marriages was
weakly. The wearing of ornaments and silk dresses at the
time of prayer was made obligatory.
"The prayers of the Islam, the fast, nay even the
pilgrimage, were henceforth forbidden. Some bastards, as
the son of Mulla Mubarak, a worthy disciple of Shaykh
Abu'l Fazl wrote treatises, in order to revile and ridicule
our religious practices, of course with proofs. His Majesty
liked such productions, and promoted the authors.
"The era of the Hijrah was now abolished, and a
new era was introduced, of which the first year was the
year of the emperor's accession (963). The months had the
same names as at the time of the old Persian kings, and as
given in the Nisab" 's.sibniyan'. Fourteen festivals also were
introduced, corresponding to the feasts of the Zoroastrians;
but the feasts of the Musalmans, and their glory were
trodden down, the Friday prayer alone being retained
because some old, decrepit, silly people used to go to it. The
new era was called Tdrikh I llahi, or 'Divine Era'. On
copper coins and gold muhrs, the era of the Millennium was
used, as indicating that the end of the religion of
1742
Muhammad, which was to last one thousand years, was
drawing near. Reading and learning Arabio was looked
upon as a crime; and Muhammadan law, the exegesis of the
Quran, and the Tradition, as also those who studied them,
were considered bad and deserving of disapproval.
Astronomy, philosophy, medicine, mathematics, poetry,
history and novels, were cultivated and thought necessary.
Even the letters which are peculiar to the Arabic language,
as the and were avoided. Thus for

people wrote

Abdullah; and for Ahadi, Ahadi

etc. All this pleased His Majesty. Two verses from the
Shahnama, which Firdawsi gives as part of a story, were
frequently quoted at court-
From eating the flesh of camels and lizards
The Arabs have made such progress,
That they now wish to get hold of the kingdom
of Persia.
Fie upon Fate! Fie upon Fate!
"Similarly other verses were eagerly seized, if they
conveyed a calumny, as the verses from the ........, in
which the falling out of the teeth of our prophet is alluded
to.
"In the same manner, every doctrine and command of
the Islam, whether special or general as the prophetship,
the harmony of the Islam with reason, the doctrines of Ru
yat, Taklif, and Takwin, the details of the day of
resurrection and judgment- all were doubted and ridiculed.
And if anyone did object to this mode of arguing, his answer
was not accepted. But it is well known how little chance a
man has who cite proofs against one who will reject them,
especially when his opponent has the power of life and
death in his hands; for equality in condition in a sine qud
1743
won in arguing. (Page 201-206)
"Here Bada, on mentions the translations from
Sanscrit into Persian, which have been alluded to above,
p.110. It is not quite certain whether the translation were
made from Sanscrit or from Hindi translations, or from
both. Bada, on clearly states that for some translations, as
at the Atharban, Hindus were used as interpreters. For
other works as the Mahabharat, there may have been Hindi
translations or extracts, because Akbar himself (vide p.111,
note 2) translated passages to Naqib Khan. Abu'l-Fazl also
states that he was assisted by Pandits when writing the
fourth book of the A-in. Compare Sir H. Elliott's Index to
the Historians of India, p. 259. (Page 209)
"In these days (991) new orders were given. The
killing of animals on certain days was forbidden as on
Sundays, because this day is sacred to the Sun; during the
first eighteen days of the month of Farwardin; the whole
month of Ahan (the month in which His Majesty was born);
and on several other days to please the Hindus. This order
was extended over the whole realm, and capital punishment
was inflicted on every one who acted against the command.
Many a family was ruined. During the time of those fasts,
His Majesty abstained altogether from meat, as a religious
penance, gradually extending the several fasts during a
year over six months and even more, with the view of
eventually discontinuing the use of meat altogether. (Page
209-210)
"In the same year (991) His Majesty built outside the
town two places for feeding poor Hindus and
Muhammadans, one of them being called Khayrpura and
the other Dharmpura. Some of Abu'l-Fazl's people were put
in charge of them. They spent His Majesty's money in
1744
feeding the poor. As an immense number of Jogis also
flocked to this establishment, a third place was built, which
got the name of Jogipura. (Page 210)
"His Majesty once ordered that the Sunnis should
stand separately from the Shiahs, when the Hindustanis,
without exception, went to the Sunni side, and the Persians
to the Shiah side. (Page 212)
1618. Vol. 2 Ain-e-Akbari Page 181 and onwards deals
with Oudh and Sri Mishra placed the following part thereof :
It is situated in the second climate. Its length from
the Sarkar of Gorakhpur to Kanauj is 185 kos. Its breadth
from the northern mountains to Sidhpur on the frontier of
the Subah of Allahabad is 115 kos. To the east is Bihar; to
the north, the mountains; to the south, Manikpur, and to the
west Kanauj. Its climate is good. Summer and winter are
nearly temperate. Its principal streams are the Saru (Sarju),
the Ghaghar (Gogra) the Sai and the Godi (Gumti). In the
first mentioned, divers aquatic animals and foms of strange
appearance show themselves. Agriculture is in a flourishing
state, especially rice of the kinds called Sukhdas, Madhkar,
and Jhanwan, which for whiteness, delicacy, fragrance and
wholesomeness are scarcely to be matched. They sow their
rice three months earlier than in other parts of Hindustan.
When the drought begins, the Sai and Gogra rise high in
flood and before the beginning of the rains, the land is
inundated, and as the waters rise, the stalks of rice shoot up
and proportionately lengthen: the crop, however, is
destroyed if the floods are in full force before the rice is in
ear. Flowers, fruits and game are abundant. Wild buffaloes
are numerous. When the plains are inundated the animals
take to the high ground where the people find sport in
1745
hunting them. Some of the animals remain all day in the
water and only at night approach the dry ground and
breathe in freedom. Awadh (Ajodhya) is one of the largest
cities of India. In is situated in longitude 118, 0', and
latitude 27, 22'. It ancient times its populous site covered
an extent of 148 kos in length and 86 in breadth, and it is
esteemed one of the holiest places of antiquity. Around the
environs of the city, they sift the earth and gold is
obtained. It was the residence of Rama Chandra who in
the Treta age combined in his own person both the
spiritual supremacy and the kingly office.
At the distance of one kos from the city, the Gogra,
after its junction with the Sai, [Saraju] flows below the fort.
Near the city stand two considerable tombs of six and seven
yards in length respectively. The vulgar believe them to be
the resting places of Seth and the prophet Job, and
extraordinary tales are related of them. Some say that at
Ratanpur is the tomb of Kabir, the assertor of the unity of
God. (Page 181-182)
1619. The above contents are published on pages 170-172 of
"Ain-e-Akbari" by Abul Fazal Allami, translated by Colonel
H.S. Jarrett, Vol. 2, published in 1891 at Calcutta and the
photocopy thereof alongwith its frontispiece has been filed as
Exhibit T6 (Suit-4) (Paper No. 43A-1/25-28) (Register 18,
pages 51-57).
1620. He also referred to the two footnotes one of which is
with respect to Ram and another with respect to Sant Kabir and
read as under : .
"The 7
th
avatar, who in this capital of the solar
dynasty founded on the chariot wheel of Brahma,
consummated the glories of sixty generations of solar
1746
princes and as the incarnate Rama, i.e. the hero of the
famous epic that bears his name. (Page 182)
"His doctrines were preached between A.D. 1380 and
1420 and attempted the union of Hindu and Muhammadan
in the worship of one God whether invoked as Ali or Rama.
On his deceased both these sects claimed the body and
while they contested it, Kabir suddenly stood in their midst
and commanding them to look under the shoud, vanished. A
heap of beautiful flowers was there discovered, which,
divided among the rival worshippers, were buried or burnt
according to their respective rites. Pilgrims from upper
India to this day beg a spoonful of rice water from the Kabir
Monastery at Puri in Orissa. (Page 182)
1621. He also pointed out to page 184 which gives certain
other statistics of Oudh showing that main castes residing
therein were "Brahmans" and "Kumbi". Then on page 311 of
Vol. 2 Sri Mishra says that Abul Fazal has also taken note of
various incarnations of Lord Vishnu in the form of Varahavatara
or Boar-Incarnation, Nara-Sinha or Man-Lion Incarnation,
Vamana or Dwarj-Incarnation, Parasurama or Incarnation of
Ram with axe, then Ramavatara or Ram Incarnation,
Krishnavatara or Incarnation as Krishna, Buddhavatara or
Buddha Incarnation, Kalkyavatara or Kalki Incarnation. On
pages 316-317, Ramavatara has been described as under :
They relate that Ravana one of Rakshasas two
generation in descent from Brahma, had ten heads and
twenty hands. He underwent austerities for a period of ten
thousand years in the Kailasa mountain and devoted his
heads, one after another in this penance in the hope of
obtaining the sovereignty of the three worlds. The deity
appeared to him and granted his prayer. The gods were
1747
afflicted by his rule and as in the former instances, solicited
his dethronement which was vouchsafed, and Rama was
appointed to accomplish this end. He was accordingly born
during the Treta Yuga on the ninth of the light half of the
month of Chaitra (March-April) in the city of Ayodhya, of
Kausalya wife of Raja Dasaratha. At the first dawn of
intelligence, he acquired much learning and withdrawing
from all worldly pursuits, set out journeying through wilds
and gave a fresh beauty to his life by visiting holy shrines.
He became lord of the earth and slew Ravana. He ruled for
eleven thousand years and introduced just laws of
administration. (Page 316-317)
1622. Chapter IX Vol. 2 of Ain-e-Akbari deals with
sacred places of pilgrimages and it includes a number of rivers
as well as several places including Ayodhya as under :
CHAPTER IX
SACRED PLACES OF PILGRIMAGE
Although profound and enlightened moralists are
convinced that true happiness consists in the acquisition of
virtue and recognise no other temple of God but a pure
heart, nevertheless the physicians of the spiritual order,
from their knowledge of the pulsation of human feeling,
have bestowed on certain places a reputation for sanctity
and thus rousing the slumberers in forgetfulness and
instilling in them the enthusiastic desire of seeking God,
have made these shrines instruments for their reverencing
of the just, and the toils of the pilgrimage a means of
facilitating the attainment of their aim.
These holy places are of four degrees.
The first is termed deva or divine and dedicated to
Brahma, Vishnu and Mahadeva. The greatest among these
1748
are twenty-eight rivers in the following orders:- [P.177] (1)
Ganges, (2) Sarasvati, (3) Jamuna, (4) Narbada, (5) Vipasa,
Known as Biah (Hyphasis), (6) Vitasta (Hydaspes or
Bidaspes) known as the Bihat, (7) Kausiki, a river near
Rhotas in the Panjab, but some place it in the neighborhood
of Garhi in the eastern districts (8) Nandavati (9)
Chandrabhaga, known as the Chenab, (10) Sarayu (Sarju)
known as the Sarau, (11) Satyavati, (12) Tapi known as
Tapti upon the (north) bank of which is Burhanpur. (13)
Paravati, (14) Pasavati (15) Gomati (Gumti) near Dvaraka.
(16) Gandaki, upon the banks of which is Sultanpur of the
Subah of Oudh, (17) Bahuda, (18) Devika (Deva or Gogra).
(19) Godavari, called also Banganga. Pattan of the Dekhan
is situated on its bank. (20) Tamraparni at the extremity of
the Dekhan. Here pearls are found. (21) Charmanvati (22)
Varana, near Benares (23) Iravti, known as the Ravi
(Hydraotes), Lahor is on its bank. (24) Satadru (the
hundred-Channelled), known as the Sutlej. Ludhiana is
upon its bank. (25) Bhimarathi, [178] called also the
Bhima, in the Dekhan. (26) Parnasona. (27) Vanjara, in the
Dekhan, (28) Achamiyya, Some include the Indus, but it is
not of the same sanctity.
Each of these rivers as dedicated to one of these deities,
has peculiar characteristics ascribed to it: Some of the
places situated on their banks are esteemed holy, as, for
example, the village of Soron on the Ganges, to which
multitudes flock on the twelfth of the month of Aghan (Nov-
Dec). Some regard certain cities as dedicated to the
divinities. Among these are Kasi, commonly called
Benares. The Adjacent country for five kos around the city
is held sacred. Although pilgrimages take place throughout
1749
the year, on the Siva-ratri multitudes resort thither from
distant parts and it is considered one of the most chosen
places in which to die. Final liberation is said to be
fourfold: (1) Salokya passing from the degrees of paradise
to Kailasa. They say that when a man goes to heaven
through good works, he must return to earth, but when
after various transmigrations, he attains that region, he
returns no more (2) Sarupya (assimilation to the deity);
when a man partakes of the divine elementary form, he
does nor revisit the earth. (3) Samipya (nearness to the
deity) is when a man after breaking the elemental bonds,
by the power of good works is admitted into the presence
of God's elect, and does not return to earth. (4) Sayuiya
(absorption into the deity); after passing through all
intermediate stages, he obtains the bliss of true liberation.
They have likewise divided the territory of Benares into
four kinds. The characteristic of two parts is that when a
being dies therein, he attains the fourth degree of Mukti; if
he dies in one of the others, he reaches the third degree,
and if in the remaining one, the second degree.
Ayodhya, commonly called Awadh. The distance of
forty kos to the east, and twenty to the north is regarded as
sacred ground. On the ninth of the light half of the
month of Chaitra a great religious festival is held.
Avantika, Ujjain. All around it for thirty-two kos is
accounted holy and a large concourse takes place on the
Siva-ratri.
Kanchi (Conjervaram) in the Dekhan. For twenty
kos around it is considered sacred. On the eighth of every
Hindu month that falls on a Tuesday, there is a great
concourse of pilgrims.
1750
Mathura is sacred for forty-eight kos around, and
even before it became the birthplace of Krishna, was held in
veneration. Religious festivals are held on the 23
rd
of the
month of Bhadra (Aug-Sept) and the 15
th
of Karitika (Oct-
Nov).
Duaraka. The country for forty kos in length and
twenty in breadth is esteemed holy. On the Dlwalt festival,
crowds resort hither.
Maya, known as Haridvra (Hardwar) on the Ganges.
It is held sacred for eighteen kos in length. Large numbers
of pilgrims assemble on the 10
th
of Chaitra.
These seven are called the seven (sacred) cities.
Prayaga now called Illahabas. The distance for
twenty kos around is venerated. They say that the desires
of a man that dies here are gratified in his next birth. They
also hold that whoever commits suicide is guilty of a great
crime except in this spot where it meets with exceeding
reward. Throughout the year it is considered holy, but
especially so during the month of Magha (Jan-Fab).
Nagarkot For eight kos round it is venerated. On the
eighth of the months of Chaitra and Kartika, many
pilgrims assemble.
Kashmir is also accounted of this class and is
dedicated to Mahadeva. Many places in it are held in great
veneration.
The second are the shrines of the Asuras, which are
temples dedicated to the Daitya race. In many things they
share the privileges of the devatas; but the latter are more
pure, while the others are filled with the principle of tamas
(darkness). Their temples are said to be in the lower
regions (Patala).
1
1751
The third are called Arsha, or shrines of the great
Rishis, men who by virtue of austerities and good works
are in near proximity to the deity. [180] Their shrines are
counted by thousands. Amongst them are Nimkhar
(Nimishara), Pukhra (Pushkara), Khushab, and Badiri.
The fourth are called Manusha, or appertaining to
men who by their power of good works are superior to
mankind in general, though they do not obtain the rank of
the third degree. Their shrines also are numerous. Among
them is Kurkushetra, which for forty kos around is
considered holy, and numerous pilgrims resort thither
during eclipses of the sun and moon.
Ceremonies are laid down for each pilgrimage and
their various meritorious results are declared.
O THOU! That seekest after divine knowledge, learn
wisdom of these Hindu legends! Each particle among
created atoms is a sublime temple of worship. May the
Almighty deliver mankind from the wanderings of a vain
imagination troubles over many things. (Page 332-336)
...taken from the letter which is therewith connected
and a name of more than four letters is considered
blameworthy. In the fourth month they bring it into the sun
before which time it is never carried out of the house. In
the fifth month they bore the lobs of the right ear. In the
sixth month, if the child be a boy, they place various kinds
of food around him, and feed him with that for which he
shows a preference. If it be a girl, this is not done till the
sixth or seventh month. When it is a year old, or in the third
year, they shave his head, but by some this is delayed till
the fifth year, by others till the seventh, and by others again
1752
till the eighth year, when a festival is held. In the fifth year
they send him to school and meet together in rejoicing.
They observe the birthday and annually celebrate it
with a feast, and at the close of each year make a knot on a
thread of silk. He is invested with the sacred string at the
appointed time. At each of these occasions they perform
certain works and go through some extraordinary
ceremonies. (Page 349)
1623. On page 349, the important religious festivals of
Hindus are also discussed which include Rama-Navami on page
350. Sri Mishra says, while acknowledging Ayodhya at length
on various aspects of the matter, Abul Fazal having not noticed
any building said to have been constructed by or under the
command of Babar in 1528 AD proves that the same was not
actually built in that manner and did not exist till then also.
1624. Sri Mishra, when asked that the building in dispute ex
facie appears to be a Mosque, then how it came into existence if
not constructed in 1528, submitted that it was actually attacked
and damaged at the time of Aurangzeb and attempt was made to
give it shape of a Mosque and inscriptions on the said building
were fixed by someone much thereafter. He placed before us
Indian Texts Series-Storia Do Mogor or Mogul India 1653-
1708 by Niccolao Manucci translated in English by Milliam
Irvine Vol. III pages 244/245 where it deals with the Hindu holy
places and reference to destruction of chief temple of Ayodhya
by Aurangzeb and reads as under :
In this realm of India, although King Aurangzeb
destroyed numerous temples, there does not thereby fail to
be many left at different places, both in his empire and in
the territories subject to the tributary princes. All of them
1753
are thronged with worshippers; even those that are
destroyed are still venerated by the Hindus and visited for
the offering of alms. The Hindus assert that in the world
there are seven principal places where it is possible to
obtain what one has imagined and desired-that is to say, in
cases where a person wishes to become emperor or king,
wealthy, powerful, or to attain other positions of the same
order. Now they ordinarily hold that on dying a person's
soul is transferred according to the deeds he has done; if
he has done good, his soul will pass into some one of
consideration or of wealth, and should the deceased have
done evil, his soul will be sent into some animal- an
elephant, camel, buffalo, cow, tiger, wolf, a bird, a snake, a
fish, et cetera. Now, some great sinner, deserving of hell,
may be anxious for delivery therefrom, and want to become
an emperor or great noble, or whatever he fancies; it can
be done by sacrificing his life by drowning himself in a
river or in the tanks found near temples at the foot of the
gates.
The principal temples referred to above are these-
that is to say:
1. The first, Maya, to be found among the mountains
of the north.
2. Matura (Mathura), which is near the city of Agrah.
3. Caxis (Kashi), which is on the Ganges, in the city
of Benaras.
4. Canchis (Kanji), in the Karnatik
5. Evantica, in the mountains of Tartary.
6. Puris (Puri), on the borders of Cochin China.
7. Darahotis (? Gangotri), at the source of the
1754
Ganges, as they suppose it to be [+5].
Bands of interested persons make these lengthy
pilgrimages, enduring a thousand hardships on the way,
only at the end to drown by their own choice, without
considering where they are about to take up their abode.
The chief temples destroyed by King Aurangzeb
within his kingdom were the following:
1. Maisa (? Mayapur),
2. Matura (Mathura),
3. Caxis (Kashi)'
4. Hajudia (Ajudhya),
and an infinite number of others; but, not to tire the reader,
I do not append their names. (Page 244-245)
1625. Niccolo Mauucci was a traveller, who came to India
during the reign of Aurangzeb and had written his account of
travel in the aforesaid book.
1626. Sri Mishra pointed out that the reign of Emperor
Aurangzeb was a total Islamic reign and all actions to cause
damage to Hindu religion and religious places were taken by
him. He not only revived Jizya which was a tax payable by non-
Islamic people but also caused damage to Hindu religious places
at a large scale. Sri Mishra refers to India in the 17
th
Century
(Social, Economic and Politician) Memoirs of Francois
Martin (1670-1694) Volume II, Part I (1681/1688) translated
by Lotika Varadarajan first published 1984 by Manohar
Publications, New Delhi and on page 880 where it discusses
about the rate of 'Jizya' increased by the Emperor in October
1683 AD and says :
Towards the beginning of October, the principal
bania merchants assembled to discuss the orders to
1755
increase the rate of jizya which had been sent by the
Emperor to the Governor. I have already spoken about this
tax which is similar to the carage paid by Christians in
Turkey. During the remaining part of the month, several
more meetings took place but these met with small success.
If the entire amount due from this tax had been properly
collected and paid into the imperial exchequer, the amount
obtained by the Emperor under this head alone would have
been far larger than the entire revenue accruing to him
from the many kingdoms which made up his vast empire.
(Page 880)
1627. About the destruction of religious places, Sri Mishra
referred to Page 914 which says :
When it had come to the knowledge of the Emperor
that many rich Gujarati banias had built temples within
their homes to perform their devotions, in his religious
fervour, he ordered that the Governors of the province
should carry out an inspection. All the temples in the
cities and villages had been destroyed. Now these inner
sanctums were also to be laid low and the least sign of
the practice of Hindu religion was to be wiped out. The
members of this community, particularly at Hyderabad and
Cambay where they were to be found in large numbers,
were greatly alarmed at these instructions. It was said that
the banias managed to circumvent the Mughal orders by
giving presents to the Governors who thereupon took their
inspection tours very lightly. (Page 914)
1628. Volume II, Part II or India in the 17
th
Century
(Social, Economic and Politician) Memoirs of Francois
Martin (1670-1694) first published in 1985 page 1249 was
1756
relied by Sri Mishra which reads as under :
Following the Emperor's orders with regard to the
destruction of temples, the Moors brought one down in the
Carnatic. This incited the Hindus to revolt in an attempt to
prevent this action. The two communities clashed openly
and both sides sustained loss of life. As a result, the Moors
were forced to postpone their demolition activities to a
later date.
1629. He also referred to footnote 31 on page 1249 which
says :
31. According to French archival sources, B.N.,
N.A., 6213 (16), the Emperor had ordered all Hindu
temples to be destroyed including that of Jagannath at
Puri. This had brought about a Hindu rebellion as a result
of which the edict was not enforced.
1630. He also referred to Mughal Documents (A.D. 1628-
59) Volume II by S.A.I. Tirmizi (first published 1995 by
Manohar Publishers and Distributors, New Delhi). On page 142
at sl. no. 426 there is a reference of a Farman of Aurangzeb of
15
th
March 1659 AD, which reads as under :
426. Manshur of Aurangzeb addressed to Abul
Hasan states that it has been brought to the notice of the
royal court that the Brahmins of Banaras are being
removed from their ancient offices and that Hindus of
Banaras and its neighbourhood are harassed. In
accordance with the sharia the ancient temples, are not to
be destroyed and new ones are not to be built and since our
innate kindness of disposition and natural benevolence, the
whole of our untiring energy and our upright intentions are
engaged in promoting the public welfare and bettering the
1757
condition of all classes, high and low, it is ordered that no
person should interfere with or disturb the Brahmins and
other Hindus so that they may, as before, remain in their
ancient occupation and engage themselves with peace of
mind in offering prayers for the continuance of our God-
gifted empire so that it may last forever (JPHS, V(1)., pp.
247-48).
20 Jumada II/1069 A.H./15 March, 1659 A.D.
1631. He contended that initially the existing policy of
Akbar, Jahangir and Shahjahan was followed by Aurangzeb, i.e.
neither to destroy existing Hindu religious places nor to allow
them to construct any new religious building but later on he took
a different stand and pursuant thereto demolished a large
number of Hindu temples.
1632. The total change of heart in reversing the earlier policy
said to have taken place almost after 10 years, i.e., with the start
of 11th year of his reign in April 1669. It has been discussed in
detail by Stanley Lane Poole in his book "Aurangzib-and the
decay of the Mughal Empire", first published in 1890,
reproduced in 1995, published by Low Price Publications, Delhi
on page 135-137. The relevant extract is as under:
"It seems to have been 1669 that the storm began to
gather. In April of that year Aurangzib was informed that
the Brahmans of Banares and other Hindu centers were in
the habit of teaching their 'wicked sciences,' not only to
their own people but to Muslims. This was more than the
orthodox Emperor could tolerate; but the severity of his
measures shows that he had been only waiting for a pretext
to come down like a thunderbolt upon the unfortunate
'heathen.' 'The Director of the Faith,' we are told, 'issued
1758
orders to all the governors of provinces to destroy with a
willing hand the schools and temples of the infidels; and
they were strictly enjoined to put an entire stop to the
teaching and practising of idolatrous forms of worship.' It
is not for a moment to be supposed that these orders were
literally carried out. Even the English Government would
not dare to risk such an experiment in India. All that was
done was to make a few signal examples, and thus to warn
the Brahmans from attempting to make proselytes among
the True Believers. With this object the temple of Vishnu at
Benares was destroyed and a splendid shrine at Mathura
was razed to the ground, to make room for a magnificent
mosque. The idols found in the temples were brought to
Agra and buried under the steps of the mosque, so that
good Muslims might have the satisfaction of treading them
under foot." (para 135-136)
"It is very difficult to trace the cause and effect of
Aurangzib's successive steps in his reactionary policy
towards the Hindus. In the eleventh year of his reign he
suddenly put a stop to the system of official chronicles,
which had been minutely recorded by historiographers
royal since the time of Akbar. Now, it was strictly forbidden
to write any chronicles at all, and those that have come
down to us were recorded in secret, or merely treasured in
the memory, and have all the confusion and fragmentary
character of haphazard reminiscences. There are probably
several links missing in the chain of events which
connected the first destruction of Hindu temples in 1669
with the imposition of the hated jizya or poll-tax on
unbelievers, a few years later. The revolt of the Satnamis is
1759
one of the few links that have been preserved by the secret
chroniclers, who were naturally disinclined to soil their
pens with the doings of 'unclean infidels.' Another event is
the rash interference of the Emperor in the matter of
Jaswant Singh's children." (pares 137-138)
1633. Sri P.N.Mishra also tried to take help from the
judgment of the District Judge Fyzabad in Suit 1885 since he
himself has visited the disputed premises on 18
th
March, 1886.
In para 7 and 8 of his written argument Sri Mishra formulated
his argument based on the above as under:
7. The District Judge of Faizabad who visited Sri
Ramjanmasthan/alleged Baburi Masjid on 18th March
1886 did not find any of the Inscriptions published by A.
Fuhrer in 1989 and by A. S. Beveridge in 1921. Said Ld.
Judge in his Judgment has recorded that the entrance to
the enclosure was under a gateway which bore the
superscription Allah immediately on the left as the
platform or Chabootra of masonary occupied by the
Hindus. His said finding is recorded in Judgment and
Order dated 18th March 1889 passed in Civil Appeal
No.27 of 1886 Mahanta Raghubardass, Mahant Janam
Asthan City Oudh VS. Secretary of State of India, Court
of Council and Mohd. Asghar by the said Judicial Officer
Mr. F.E.A. Chamier, District Judge Faizabad which
constitute pages 87 to 91 of the volume 10 of the
Documents of O.O.S. No. 4 of 1989 being Volume I of
the plaintiffs documents. Relevant portion from page 89
of the said Volume being an extract of the said judgment
reads as follows:
I visited the land in dispute yesterday, in the presence
1760
of all parties.
I found that the Masjid built by the Emperor Babar
stands on the border of the town Ajudhia-that is to say
to the west and south it is clean of inhabitations. It is
most unfortunate that a Masjid should have been built
on land specially held sacred by the Hindus, but as the
event occurred 356 years ago it is too late now to
remedy the grievance all that can be done is to
maintain the parties in status quo. In such a case as the
present one any (Sic) would cause more harm and
damage (Sic) of order than benefit. The entrance to the
enclosure is under a gateway which bears the
superscription Allah immediately on the left as the
platform or Chabootra of masonary occupied by the
Hindus. On this is a small superstructure of wood in
the form of a tent. This Chabootra is said to indicate
the birthplace of Ram Chan deer. Infront of the
gateway in the entry to masonary Platform of the
Musjid. A wall pierced (illegible) and therewith
railings divides the platform of the Musjid from the
enclosure in which stands the Chabootra.
Be it mentioned herein that said judgment is Judgment
per Incuriam as it has been passed in ignoratum of law.
Prior to annexation of Oudh to British Rule the Law of
Shar was law in force which law neither had rule of
Limitation nor did recognise adverse possession. Apart
from this Hindu law in respect of Debutter property also
did not recognise adverse possession. This principle of
Law had already been laid down by the Indian Courts of
Record as well as Privy Council, London as such said
1761
judgment passed in ignoratum of those judicial
pronouncement has no force of law. Moreover in the said
Suit the Disputed Structure was not subject matter of that
suit nor was declaration of title in respect thereof prayed
for.
8. In the aforesaid judgment recording of the Ld. Judge
the superscription Allah leaves no doubt that he had
inspected the disputed premises and Structure very
minutely and it is needless to say that if there would have
been alleged Inscriptions that would not have gone
unnoticed by him. Be it mentioned herein that according
to Hindus sacred book Allopanisad Allah is one of
the several names of the almighty. Be it mentioned herein
that the Allopanishad has been reproduced by the
founder of Arya Samaj Maharshi Dayanand Saraswati in
his book Satyarthaprakash 2nd revised edition published
in Vikram Samvat 1939 i.e. 1882 A.D.. According to him
it was written during the reign of Emperor Akbar. The text
of Allopanishad as published on pages 556-67 of
Satyarthaprakash in Dayanand-Granthmala published
by Srimati Paropakarini Sabha, Ajmer 1983 Edn. reads as
follows:
i i ~i l i i i -i - |
--i~i ;~ l-iii lil i-i|
;~~ ii ii |
r-i l-i ;~i ;~~ ;~i ii l--n -i-||||
rinil- i ri nil- -ri l i|
~i - - i ir -i ~i- ||z||
~i -ri-- ~i ~i- ||s||
i~i - - | ~i liin- ||||
~i n r nr -i| ~i ii||r||
1762
~i ~i|ii li ; i -ii --nlii||c||
~ lii nli l- ||/||
;~i ;~i ;~i ;~~ ln ;~~i||s||
i- ~i;~~i il-i i iii-i r r| ii l,i
i - - ||s||
rili| r r| ~i -r-- ~i ~i- ;~~ ln
;~~i||o||
;-~i l i n -i ni ||
1634. Be that as it may, the above discussion and the
material considered by us make it very clear that the foundation
of the entire history regarding construction of disputed building
by Babar in 1528 AD is based upon the inscriptions said to be
fixed thereon. The original text of the said inscriptions is not
available at all. At least it has not been produced before us from
any authentic source. The text of the said inscriptions published
in different books and historical work, we have discussed, show
several crucial discrepancies therein. The historians, it appears
being aware that Babar came to India in 1526 AD and visited
Ayodhya in 1528 AD formed opinion in majority and read the
text of the inscriptions that the date of construction of the
building therein is 1528 AD i.e. 935 AH. However, in the
earliest Journal of ASI, the text is not only different but the
period mentioned is also different i.e. 930 AH.
1635. Interestingly there are some work written in Urdu in
the 19
th
Century by some Muslim writers. Therein mostly they
have mentioned the period of construction of the disputed
building as 923 Hijri and further that it was constructed by the
Babar at the instance of Syed Musa Ashikan. One of such
document is titled as "Ameer Ali Shaheed Aur Marka
Hanuman Gari" by Shekh Mohammad Ajmat Ali Alvi
Kakoravi (written in 1886) revised by Dr. Zaki Kakoravi
1763
published in 1987 and on page 9/10 it says:
n ( -n ) ili ( ) -i - r l i n~ n (i)
ii -+ ni |
in| ;-il-i li (iri ) lr -ni n lii - ri
r| - | ()
. .. . i; ri (-) ;-i-| ni -l- iiir
- il ii i l i - l (i n|) - l i |
-ir--| i iii li i i-i
ln (i i ) . . . li i l nr -i i li n r
i ii iii (ii )
ln i li| ;| nr ii i - i i .. . i
-i- ii, nnnir l - i- ii nii --ii -
szs l r| - - i i l i i rn-i - - -l -
i | n i r ; | r| | r lr i - |ni |
i ; . . . .-ir i||
ni | i l i i i | ( szs l r| ) r r n i ni
l -i n| r |
1636. Thus the very basis of forming the view that the
disputed building was constructed in 1528 AD by Babar or at
his command by his agents founded solely on inscriptions
whose authenticity itself is not creditworthy.
1637. Unlike the historians who without any further probe,
Proceeded on the observations of Dr. Buchanan as published by
Martin in 1838, we do not find it possible to record a finding
that the building in dispute was constructed in 1528 AD by
Babar or any of his agents.
1638. If we summarize our reasons, we find firstly that
Babar in his chronological detail (to the extent it is available) in
"Baburnama" has mentioned various buildings which he got
constructed mainly at Agra where he stayed and made his
headquarter and in the nearby areas or else. Obviously, if some
1764
construction or alteration in an existing building was made by
any of his army officer or non-army officer who accompanied
him from Farghana, there could not have any occasion for him
to mention about the same in a work in which he recorded his
daily affairs. His period of rule in the then Hindustan is very
short, i.e., slightly more than four years. He being the founder of
the dynasty, later known as Mughal dynasty, obviously was
more interested in expansion of his reigning territory and not to
indulge in avoidable confrontation which strategically may have
added to his agony. A careful study of Baburnama show that
wherever possible he made friends among non-muslims also so
as to lessen rebels. Of course this was subject to the acceptance
of those non-muslim Rulers about his supremacy. Besides the
fact that no army commander of the name of "Mir Baqi", as
such is mentioned in Baburnama, we find that Baqi Shaghawal
who was made incharge of Oudh (Ayodhya) territory did not
have any rest at Ayodhya. From 28.03.1528 and onwards, for a
sufficiently long time, he remain on his toes chasing Bayazid
and others. He was granted leave in June 1529 AD by Babar. It
is the admitted case of the muslim parties that in a legendary
work of Goswami Tulsidas on Lord Rama, i.e.
'Ramcharitmanas' which came into existence in a very short
time after Babar, there is no mention of construction of a huge
mosque at Ayodhya by Babar or anyone else. We are using the
term "huge mosque" in the context of the place where the
disputed building was constructed.
1639. Then in two traveller's account of Finch and
Tieffenthaler also, this conspicuous miss cannot be overlooked.
The first reference of Ayodhya and in particular the fort of Lord
Rama at Ayodhya in the travellers account just after about 75
1765
years and more, i.e., of "William Finch" who visited India
between 1608 to 1611 AD. It is nobody's case that besides the
area which is known today as Mauja Ramkot there was any
other place where it was ever believed or seen by anybody the
alleged house or fort of Lord Rama. On the contrary, what has
been pointed out that in the first settlement of 1861 the site in
dispute was part of plot no. 161 which had a total area of more
than 9 Bighas. William Finch did not mention about any
recently constructed Islamic building or mosque in this area and
instead has referred to a house or fort which according to him
was constructed about 400 years ago and belief of Hindus as
birthplace of Ramchandar (Lord Rama). The period he mention
may be approximate, i.e., may or may not be very accurate but it
carries the period of the then existing building to 11th or 12th
century when Ayodhya was under the rule of Gaharwals. He
also mentions about Pooja and worship being performed by
Hindus (Brahmans) in the said area but there is no mention
about the existence of muslims or their religious place of a
recent construction in the said area. It is difficult to believe if
such a huge construction was existing at that time, the same
would have gone unnoticed by a person who has given so much
details of the area he visited at Ayodhya.
1640. Then comes the next available version of Nicolo
Minouchi who travelled India during the reign of Aurangzeb.
On the one hand it cannot be disputed that he has mentioned
about demolition of a temple at Ayodhya during the aforesaid
period but further particulars have not been given. It gives an
occasion to the learned counsels for the plaintiff (Suit-4) to
contend that the travellers account of Minouchi does not throw
any light that the alleged destruction of temple mention in his
1766
travellers account relates to the alleged Janambhumi temple and
none else. This argument is unexceptionable since Minouchi's
travellers account does not pin point any building or the area but
then there are some further material.
1641. Father Joseph Tieffenthaler, an Austrian traveller
visited India and remain here for more than two decades. In fact
he stayed in India till his death. His credentials which have been
made available to us through an internet printout of Wikipedia
site shows that he was a linguist and well conversant with the
languages like Persian and Sanskrit. It is this account which for
the first time mentions about the alleged temple at the birthplace
as well as its demolition by a muslim Ruler, in particular
Mughal Ruler and construction of a mosque thereat.
Tieffenthaler, however, say when he visited, the people in
locality said that the demolition caused by Emperor Aurangzeb
though some people said that it was Babar. Had the inscriptions
alleged to be fixed on the building in dispute at the time of its
construction would have existed thereat when Tieffenthaler
visited the site, it is difficult to conceive that he could have
written in his work whether it was Aurangzeb or Babar since he
himself could have noticed the correct facts by reading the
inscriptions for which he did not require any external help.
Tieffenthaler's work which though written like a travellers guide
between 1740-1760 and onwards but could not be seen by
subsequent historians or those who prepared historical data
perhaps for the reason that it remain unpublished in English. It
might have been published in the Latin itself, the language in
which Tieffenthaler wrote his diary but the publically known
work is the "French translation" which is said to have been
published in 1786. To us it appears that the building in dispute
1767
by the time Tieffenthaler came to Ayodhya had already been
constructed but the inscriptions were not there. Besides, even at
that time, inside the building in dispute, the Hindu religious
structure in the form of a 'Vedi' existed which was being
worshipped by Hindus. Here also it is remarkable that
Tieffenthaler though has noticed worship by Hindus but is
conspicuously silent about worship by muslims in the disputed
building.
1642. We tried to enquire from learned counsel for the
plaintiffs (Suit-4) as to how it could happen that a mosque was
constructed but inside the premises a Hindu religious structure
was allowed to remain as to be worshipped by Hindu public. In
the absence of any source material on this aspect no reply
obviously was forthcoming but to us it appears that though the
building in dispute was constructed but immediately thereafter
or after sometime it stood deserted by muslims. Hindus made
their entry and raised a religious structure in order to continue
with the sanctity of their belief that the place in dispute was the
birthplace of Lord Rama and that is how their worship
continued. It is inconceivable that at the time when the disputed
building was constructed the people who did so would have
allowed a Hindu religious structure inside the premises
particularly when the building which they constructed was an
Islamic religious place, i.e., mosque. We also find that Islamic
religious scriptures clearly prohibit same place fit for worship
by the persons of different faith and religion. We make it clear
our use of the word mosque herein these issues be not treated as
our finding since it being a separate issue shall be dealt with
later.
1643. Though it amounts to delving into some kind of
1768
conjectures but since here is a case which necessarily goes in
history and particularly when for sufficiently long time the
things are in dark, in the absence of anything contrary, we do
not find it impermissible to think in this manner. It would comes
within the domain of preponderance of probability.
1644. The position appears to be that when the building in
dispute was constructed, obviously the Islamic people, were in
power who constructed the building in dispute. They did not
allow or could not have allowed any Hindu religious structure to
exist within the premises of the disputed building. If it was done
after demolition of a Hindu religious structure, it is
inconceivable while demolishing such structure, some part
thereof would have been allowed to remain so as to be
worshipped continuously by Hindu people after entering the
premises of the mosque. Thus initially when it was constructed
no such structure could have existed but as soon as the local
Hindu people got opportunity, they created or made a symbolic
structure to continue with the worship according to their belief
with regard to the birthplace of Lord Rama and that is how
structure in the form of Vedi was there and noticed by
Tieffenthaler in his work which relates to the period of 1740-
1760 AD.
1645. The building in dispute, therefore, not constructed in
1528 AD or during the reign of Babar, the preponderance of
probability lie in favour of the period when Aurangzeb was the
Emperor since it is again nobody's case that such an action
could have been taken during the reign of Humaun, Akbar or
Shahjahan. Without entering into the wild goose chase on this
aspect suffice it to say that the building in dispute must have
come into existence before 1707 AD when the reign of
1769
Aurangzeb ended on his death. Tieffenthaler's visit to Ayodhya
is 35-55 years thereafter and this gave sufficient time in which
the things as we have indicated above could have happened. The
inscription on the disputed building either inside or outside was
not there otherwise there was no occasion that the same could
not have been noticed and seen by Tieffenthaler who himself
was quite conversant with the language in which these
inscriptions were written and found subsequently.
1646. Then comes the person who for the first time noticed
the above inscription, i.e., Dr. F. C. Buchanan. He was a
medicine man and, as his autobiography says, worked as
personal physician of Lord Wellesley at the end of 18th century.
He was entrusted with the work of survey of the territory within
the hold of East India Company in North-West provinces at the
commencement of 19th century. Obviously this was not his field
of expertise and, therefore, it can well be conceived that he
actually functioned as an overall Observer or Supervisor but in
effect must have been assisted/attended by a team of the persons
knowing the work of survey and also quite conversant with the
local tradition, languages etc. The survey continued for about 7
years, i.e., 1807-1814. The survey report said to have been
submitted in more than one set. It appears that the record of the
said survey sent to Calcutta office of East India Company as
also to its main office in London. At the time he conducted
survey, the area of Oudh as such was not within the reining
territory of East India Company but was part of the reining
territory of Nawab Vazir of Lucknow with whom East India
company had a kind of agreement entered in 1801. The area
towards Gorakhpur, Varanasi etc. was in the territory of East
India Company and the demarkating land appears to be the bank
1770
of river Saryu near Ayodhya as is evident from the observations
of Buchanan where he said that he did not undertook the
exercise of measurement etc. at Ayodhya as it would have
offended Nawab Wazir of Lucknow who was the reigning
authority of that area. It is Buchanan who for the first time
referred to an inscription wherefrom he could notice that the
disputed building was erected in 1528 AD at the command of
Babar though local people still at that time believed and said
that the same was constructed at the time of Emperor Aurangzeb
after demolishing a Hindu temple. When Buchanan visited
Ayodhya, i.e. between 1807-1814, the period of Aurangzeb was
about 100 years back while the period of Babar was about 275
years and more. It is difficult to conceive that the local people
were not conversant as to who was responsible for construction
or during whose reign the construction was made particularly
when the matter was comparably recent. The people's memory
is not so short and fade away with such a pace that they cannot
recollect the events of just 50-60 years back. During the period
of Buchanan it was a matter of just 100 years or more.
Comparatively period of Aurangzeb was quite recent. Therefore,
Buchanan's approach to ignore local belief that the building in
dispute was constructed during the reign of Aurangzeb, in the
absence of any concrete material, and not to make any further
probe cannot be appreciated. However some margin has to be
given to him since he was not an expert historian. It may happen
that on plain reading of text, the period mentioned therein found
923 AH or 930 AH but he, knowing the period of Babar took
upon himself to correct it.
1647. Moreover, Buchanan also cannot be said at fault since
he had a reason to contradict this local belief based on an
1771
inscribed document which he found fixed on the building in
dispute. To us it appears that this inscription must have been
fixed in the building in dispute sometimes between the visit of
Tieffenthaler and survey of Dr. Buchanan. In order to give
importance and antiquity to the building so as to avoid local
hatred and conflict the inscript writer or the person responsible
for it tried to co-relate it with the reign of Babar but due to lack
of information or mistake, the period got written wrongly, i.e.,
923 A.H. or 930 A.H. and he also mention a name i.e. Mir Baki
or Mir Khan which did not find mention in Babar's "Tuzuk-i-
Babri".
1648. Whether Buchanan actually noticed 923 A.H. or 935
A.H., we find difficult to record any concrete finding in the
absence of any authenticated text of such inscription as was
available to Buchanan. To us it appears when he noticed the
name of Babar mentioned in the inscription even if the period in
the inscription would have written as 923 A.H. he might have
got it corrected in the light of the known period of visit of Babar
at Ayodhya. This part of our observation as to what Buchanan
might have done at that time is obviously in the realm of
conjecture and we are conscious about it, but for us it is suffice
to mention that in the absence of an authenticated text of the
inscription as noticed by Buchanan, the only thing relevant for
us is that the inscription was noticed for the first time by
Buchanan and at that time he tried to contact the local people
with respect to the period and person who constructed the
disputed building. He was told about Aurangzeb but he
discarded it on the basis of inscription and said that it is Babar
and not Aurangzeb as locally believed. It is again nobody's case
that the inscription of the period of Buchanan was replaced or
1772
changed at any later point of time atleast when it was so noticed
and read by A. Fuhrer.
1649. In the meantime, we find that this text has been
referred to in certain books written by muslim writers after 1855
AD. Without entering into the question whether those writers
were well known Historians or merely story writers or whatever
the case may be, for us suffice it to mention that in all these
books they have mentioned the period of construction contained
in the inscription as 923 A.H. Obviously it cannot be said that
those writers who have written their books in Persian and
Arabic were not capable of correctly reading the inscription and
they committed a mistake in reading.
1650. In brief, we summarize the things and the position
boils down as under:
i. Dr. Fransis C. Buchanan said to be first person who
read and collect the transcription but this text duly proved
in accordance with law is not available to us. However,
this found the basis of contradicting the local belief as it
prevail till then i.e. around 1810 AD that the building in
dispute was constructed during the reign of Aurangzebe
after demolition of a temple was wrong and it was actually
Babar, as borne out from the inscription.
ii. Next is A. Fuhrer. He was the first archaeologist
who read and translated in 1889/1891 and got published
three inscriptions alleged to be fixed on Babari Masjid
which was alleged to be built under command of Emperor
Babur at the site of Sri Ramjanmasthan.
A. Fuhrers translations and introductory notes thereto
read as follows:
Babars- Masjid at Ayodhya was built in A.H. 930,
1773
or A. D. 1523, by Mir Khan, on the very spot where the
old temple Janamasthanam of Ramchandra was
standing . The following inscriptions are of interest.
Inscription No.XL written in Arabic character over the
mihrab of the masjid it gives twice the Kalimah:-
There is no God but Allah, Muhammad is His
Prophet
Inscription no.XLI is written in Persian poetry, the
meter being Ramal, in six lines on the member, right-
hand side of the masjid.
1.By order of Babar, the king of the world,
2. This firmament-like, lofty,
3. Strong building was erected.
4. By the auspicious noble Mir Khan.
5. May ever remain such a foundation,
6. And such a king of the world.
Inscription No.XLII is written in Persian poetry ,the
metre being Ramal, in ten lines, above the entrance
door of the masjid. A few characters of the second and
whole third lines are completely defaced.
1. In the name of God, the merciful, the clement.
2. In the name of him who; may God perpetually
keep him in the world.
3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Such a sovereign who is famous in the world, and in
person of delight for the world.
5. In his presence one of the grandees who is another
king of Turkey and China.
6. Laid this religious foundation in the auspicious Hijra
930.
1774
7. O God ! May always remain the crown, throne and
life with the king.
8. May Babar always pour the flowers of happiness;
may remain successful.
9. His counselor and minister who is the founder of this
fort masjid.
10. This poetry, giving the date and eulogy, was written
by the lazy writer and poor servant Fath-allah-Ghori,
composer.
The old temple of Ramachandra at Janamasthan must
have been a very fine one, for many of its columns
have been used by the Musalmans in the construction
of Babars masjid. These are of strong, close-grained,
dark- coloured or black stone, called by the natives
Kasauti, touch-stone slate, and carved with different
devices. They are from seven to eight feet long, square
at the base,centre and capital, and round or octagonal
intermediately.
(The Sharqi Architecture of Jaunpur by
A.Fuhrer Ph.D. p 67-68)
ii. Third is Annette Susannah Beveridge was the
second british scholar who in 1921 published texts of
two Inscriptions purported to be of alleged baburi Mosque
which were supplied by the Deputy- Commissioner of
Fyzabad alongwith English Translation and
Transliteration thereof done by a Muslim. In her said book
A.S. Beveridge before giving Text and Translation of the
alleged two Inscriptions writes as follows:
Thanks to the kind response made by the Deputy-
Commissioner of Fyzabad to my husbands enquiry
1775
about two inscriptions mentioned by several
Gazetteers as still existing on Baburs Mosque in
Oudh, I am able to quote copies of both.
After giving text and transliteration of an Inscription he
gives Translation with her exaggerating value thereof as
follows:
The translation and explanation of the above,
manifestly made by a Musalman and as such having
special value, are as follows:-
The inscription inside the Mosque is as follows:-
After giving its Text and Transliteration she translates the
alleged First Inscription as follows:
1. By the command of the Emperor Babur whose
justice is an edifice reaching up to very height of the
heavens,
2. The good-hearted Mir Baqi built this alighting-place
of angels;
3. Bavad khair baqi ! (May this goodness last for
ever!) The year of building it was made clear likewise
when I said Buvad khair baqi (=935).
The inscription outside the Mosque is as follows:-
After giving its Text and Transliteration she translates
the alleged Second Inscription as follows:
The explanation of the above is as follows:-
In the first couplet the poet praises God, in the
second Muhammad, in the third Babur - there is a
peculiar literary beauty in the use of the word la-
makani in the 1st couplet. The author hints that the
mosque is meant to be the abode of God, although
he has no fixed abiding-place. - In the first hemistich