# Bhagwan Shrikrishna Virajman & Ors. Plaintiffs v. U.P. Sunni Central Waqf Board & Ors

- **Citation:** (2024) 8 ILRA 1182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-01
- **Case number:** Original Suit No. 1 of 2023
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-shrikrishna-virajman-ors-plaintiffs-v-u-p-sunni-central-waqf-board-ors-52423
- **Pages:** 92

## Headnote

Sri
Gulrez
Khan,
Sri
Hare
Ram,
Sri
Nasiruzzaman, Sri Punit Kumar Gupta

A. Chronicle of facts-Shri Krishna is
believed to have been born at Katra
Keshav Dev, Mathura, over 5000 years
ago- A temple at this site was historically
constructed and reconstructed by various
Hindu rulers, including Shri Brajnabha
(great-grandson
of
Shri
Krishna),
Chandragupta Vikramaditya, and Raja
Veer
Singh
Bundela-
temple
was
demolished multiple times by invaders like
Mahmud Ghaznavi, Sikandar Lodi, and
Aurangzeb,
the
latter
constructing
a
mosque (Shahi Idgah) over the temple
ruins in 1670- In 1815, Raja Patnimal
purchased the 13.37 acres of Katra Keshav
Dev land in a public auction conducted by
the
British-His
legal
heirs-maintained
ownership,
affirmed
through
multiple
suits and decrees till 1935- In 1951, Shree
Krishna Janmabhoomi Trust was created
by industrialist Jugal Kishore Birla- In
1964, Sewa Sansthan, a distinct entity
with no legal claim over the land, filed
Civil Suit No. 43/1967 against the Trust
Shahi Idgah- A compromise decree was
passed on 20.07.1973 and 07.11.1974 in
favour of maintaining status quo between
the structures, allegedly without authority
from the lawful trust- Multiple suits and
8 All. Bhagwan Shrikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
1183
appeals followed questioning the validity
of this compromise, its legality, and its
binding effect. (Para 13)

B. Statutes involved- Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 2(a), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 2(g), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 2(j), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 3, Ancient Monuments And
Archaeological Sites And Remains Act,
1958 - Section 39, Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 39(2), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 4, Ancient Monuments And
Archaeological Sites And Remains Act,
1958 - Section 6, Ancient Monuments And
Archaeological Sites And Remains Act,
1958 - Section 6(2), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 9; Ancient Monuments
Preservation
Act,
1904
[repealed]
-
Section
3,
Ancient
Monuments
Preservation
Act,
1904
[repealed]
-
Section 3(3); Code of Civil Procedure,
1908 (CPC) - Order VI Rule 13; Code of
Civil Procedure, 1908 (CPC) - Order VI
Rule 17; Code of Civil Procedure, 1908
(CPC) - Order VII Rule 11; Code of Civil
Procedure, 1908 (CPC) - Order VII Rule 11
(d); Code of Civil Procedure, 1908 (CPC) -
Order VII Rule 11(d); Code of Civil
Procedure, 1908 (CPC) - Order VII Rule
13; Code of Civil Procedure, 1908 (CPC) -
Order VII Rule 7; Code of Civil Procedure,
1908 (CPC) - Order XIV Rule 2; Code of
Civil Procedure, 1908 (CPC) - Order XXIII
Rule 3; Code of Civil Procedure, 1908
(CPC) - Order XXIII Rule 3-A, Code of Civil
Procedure, 1908 (CPC) - Order XXIII Rule
3A; C

## Text

_Characters 0–39,954 of 284,267. This is a partial read: ask again with offset=39954 for what follows._

1182 INDIAN LAW REPORTS ALLAHABAD SERIES
correctly found that the accused respondent
is entitled to get benefit of doubt. The trial
court has elaborately discussed the oral and
documentary evidence on record and
reached the right conclusion and committed
no mistake in recording the acquittal of the
accused respondent.

31. The learned trial Court has
given logical and plausible findings in the
impugned judgement and has rightly
concluded
that
the
prosecution
has
miserably failed to prove its case beyond
reasonable doubt. The judgment and order
of the trial court under judicious scrutiny is
just and proper and carries no perversity
therein, hence it does not warrant any
interference by this Court. The reasoning
adopted by the learned Trial Judge is based
upon proper application of judicial mind.
No illegality or infirmity is found in the
impugned judgment and order and it needs
no interference by this Court in exercise of
its power under Section 378 CrPC.

32. Thus, the application moved by
the appellant - State to grant leave to appeal
for the reasons discussed here-in-above is
not liable to be allowed and the said prayer
is refused.

Re : Government Appeal

1. Since the application for grant of
leave to appeal has been disallowed, the
government appeal is also not liable to be
admitted and same is dismissed at this
stage.
2. This Court is thankful to learned
Advocate and Mr. Akash Verma, Research
Associate of this Court for ably assisting
the Court.
----------
(2024) 8 ILRA 1182
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2024

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Original Suit No. 1 of 2023
Alongiwith other connected cases

Bhagwan Shrikrishna Virajman & Ors.
 ...Plaintiffs
Versus
U.P. Sunni Central Waqf Board & Ors.
 ...Defendants

Counsel for the Plaintiffs:
Sri Prabhash Pandey, Sri Pradeep Kumar Sharma

Counsel for the Defendants:
Sri
Gulrez
Khan,
Sri
Hare
Ram,
Sri
Nasiruzzaman, Sri Punit Kumar Gupta

A. Chronicle of facts-Shri Krishna is
believed to have been born at Katra
Keshav Dev, Mathura, over 5000 years
ago- A temple at this site was historically
constructed and reconstructed by various
Hindu rulers, including Shri Brajnabha
(great-grandson
of
Shri
Krishna),
Chandragupta Vikramaditya, and Raja
Veer
Singh
Bundela-
temple
was
demolished multiple times by invaders like
Mahmud Ghaznavi, Sikandar Lodi, and
Aurangzeb,
the
latter
constructing
a
mosque (Shahi Idgah) over the temple
ruins in 1670- In 1815, Raja Patnimal
purchased the 13.37 acres of Katra Keshav
Dev land in a public auction conducted by
the
British-His
legal
heirs-maintained
ownership,
affirmed
through
multiple
suits and decrees till 1935- In 1951, Shree
Krishna Janmabhoomi Trust was created
by industrialist Jugal Kishore Birla- In
1964, Sewa Sansthan, a distinct entity
with no legal claim over the land, filed
Civil Suit No. 43/1967 against the Trust
Shahi Idgah- A compromise decree was
passed on 20.07.1973 and 07.11.1974 in
favour of maintaining status quo between
the structures, allegedly without authority
from the lawful trust- Multiple suits and
8 All. Bhagwan Shrikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
1183
appeals followed questioning the validity
of this compromise, its legality, and its
binding effect. (Para 13)

B. Statutes involved- Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 2(a), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 2(g), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 2(j), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 3, Ancient Monuments And
Archaeological Sites And Remains Act,
1958 - Section 39, Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 39(2), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 4, Ancient Monuments And
Archaeological Sites And Remains Act,
1958 - Section 6, Ancient Monuments And
Archaeological Sites And Remains Act,
1958 - Section 6(2), Ancient Monuments
And Archaeological Sites And Remains Act,
1958 - Section 9; Ancient Monuments
Preservation
Act,
1904
[repealed]
-
Section
3,
Ancient
Monuments
Preservation
Act,
1904
[repealed]
-
Section 3(3); Code of Civil Procedure,
1908 (CPC) - Order VI Rule 13; Code of
Civil Procedure, 1908 (CPC) - Order VI
Rule 17; Code of Civil Procedure, 1908
(CPC) - Order VII Rule 11; Code of Civil
Procedure, 1908 (CPC) - Order VII Rule 11
(d); Code of Civil Procedure, 1908 (CPC) -
Order VII Rule 11(d); Code of Civil
Procedure, 1908 (CPC) - Order VII Rule
13; Code of Civil Procedure, 1908 (CPC) -
Order VII Rule 7; Code of Civil Procedure,
1908 (CPC) - Order XIV Rule 2; Code of
Civil Procedure, 1908 (CPC) - Order XXIII
Rule 3; Code of Civil Procedure, 1908
(CPC) - Order XXIII Rule 3-A, Code of Civil
Procedure, 1908 (CPC) - Order XXIII Rule
3A; Code of Civil Procedure, 1908 (CPC) -
Order XXIII Rule XXIII; Code of Civil
Procedure, 1908 (CPC) - Order XXVI Rule
10; Code of Civil Procedure, 1908 (CPC) -
Order
XXVI
Rule
9;
Code
of
Civil
Procedure, 1908 (CPC) - Order XXXIX Rule
1; Code of Civil Procedure, 1908 (CPC) -
Order XXXIX Rule 2; Code of Civil
Procedure, 1908 (CPC) - Order XXXIX Rule
2-A, Code of Civil Procedure, 1908 (CPC) -
Section 151; Code of Civil Procedure, 1908
(CPC) - Section 9; Code of Civil Procedure,
1908 (CPC) - Section 92; Constitution Of
India - Article 226, Constitution Of India -
Article 25, Constitution Of India - Article
26; Electricity Act, 2003 - Section 135;
Indian Evidence Act, 1872 [repealed] -
Section 90; Indian Penal Code 1860, (IPC)
[repealed] - Section 116; Limitation Act,
1963 - Section 17, Limitation Act, 1963 -
Section 17 (1), Limitation Act, 1963 -
Section 17(1), Limitation Act, 1963 -
Section 2 (j), Limitation Act, 1963 -
Section 23, Limitation Act, 1963 - Section
3; Places Of Worship (special Provisions)
Act, 1991 - Section 2 (b), Places Of
Worship (special Provisions) Act, 1991 -
Section 2 (c), Places Of Worship (special
Provisions) Act, 1991 - Section 2(b),
Places Of Worship (special Provisions) Act,
1991 - Section 2(c), Places Of Worship
(special Provisions) Act, 1991 - Section 3,
Places Of Worship (special Provisions) Act,
1991 - Section 4, Places Of Worship
(special Provisions) Act, 1991 - Section 4
(1), Places Of Worship (special Provisions)
Act, 1991 - Section 4 (2), Places Of
Worship (special Provisions) Act, 1991 -
Section 4(1), Places Of Worship (special
Provisions) Act, 1991 - Section 4(2),
Places Of Worship (special Provisions) Act,
1991 - Section 4(3), Places Of Worship
(special Provisions) Act, 1991 - Section 6,
Places Of Worship (special Provisions) Act,
1991 - Section 7; Specific Relief Act 1963 -
Section 34, Specific Relief Act 1963 -
Section 5, Specific Relief Act 1963 -
Section 6; Specific Relief Act, 1877
[repealed]
-
Section
42;
St.s
Reorganisation Act 1956 - Section 126;
Uttar Pradesh Ancient And Historical
Monuments And Archaeological Sites And
Remains Preservation Act, 1956 - Section
3; Uttar Pradesh Muslim Waqfs Act, 1960 -
Section 6; Wakf Act, 1954 [repealed] -
Section 16, Wakf Act, 1954 [repealed] -
Section 5, Wakf Act, 1954 [repealed] -
Section 69 (2); Waqf Act, 1995 - Section
108-A, Waqf Act, 1995 - Section 108A,
Waqf Act, 1995 - Section 112, Waqf Act,
1995 - Section 3(r), Waqf Act, 1995 -
Section 4, Waqf Act, 1995 - Section 5,
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
Waqf Act, 1995 - Section 5 (2), Waqf Act,
1995 - Section 6, Waqf Act, 1995 - Section
6(1), Waqf Act, 1995 - Section 6(5), Waqf
Act, 1995 - Section 7, Waqf Act, 1995 -
Section 7(1), Waqf Act, 1995 - Section
7(2), Waqf Act, 1995 - Section 83, Waqf
Act, 1995 - Section 83(1), Waqf Act, 1995
- Section 83(5), Waqf Act, 1995 - Section
85, Waqf Act, 1995 - Section 86, Waqf Act,
1995 - Section 89, Waqf Act, 1995 -
Section 90, Waqf Act, 1995

C. Scope of Order VII Rule 11 of the CPCcause of action-bundle of facts-plaintiffs
must prove to succeed- facts pleaded in
the plaint reveal cause of action as
averred in their plaints- defence of the
defendant or the written St.ment filed on
their behalf need not be considered- only
the averments made in the plaint are to be
considered at the time of the disposal of
such application- prima facie it appears
that a valid cause of action arose to the
plaintiffs to institute suits. (paras 170,
172, 178 and 179)

HELD:
A cause of action is a bundle of facts, which the
plaintiffs must prove, to succeed in their suits. A
cause of action is constituted on the basis of
various facts averred in the plaint. (para 170)

Perusal of the respective plaints, as a whole,
goes to show that the historical background of
the matter, averments made in the plaints about
the title, ownership and possession of Raja
Patnimal of Benaras and his legal heirs over the
property of Katra Keshav Dev measuring 13.37
acres, several rounds of subsequent litigations
establishing the title and possession of suit
property in their favour, the execution of sale
deed in favour of Mahamana Pandit Madan
Mohan
Malviya
&
ors.,
creation
of
the
Janmabhoomi Trust by Late Sri Jugal Kishore
Birla, institution of Suit No.43 of 1967 by Sewa
Sansthan, the compromise dated 12.10.1968
entered into between the parties, construction
of superstructure known as 'Shahi Idgah Masjid'
by the defendants, and execution of certain
documents from time to time which are brought
on record by plaintiffs, are bundle of facts which
indicate that the plaintiffs have a cause of action
to institute present suits. All these peculiar facts
and circumstances constitute a cause of action
as averred in their respective plaints. (Para 172)

It is a settled law that the defense of the
defendant or the written St.ment filed on their
behalf need not be considered and only the
averments made in the plaint are to be
considered at the time of the disposal of such
application. (Para 178)

I am of the considered view that after perusal of
the plaints, as a whole and meaningfully,
documentary evidence brought on record and
oral arguments advanced by the learned
Counsel for the parties, prima facie it appears
that a valid cause of action arose to the
plaintiffs to institute the suits. At this stage, it
cannot be assumed that the plaints do not
disclose a cause of action as agitated by the
learned Counsel for the defendants. (Para 179)

D. Bar under the Limitation Act, 1963Articles 58 and 59 of the Limitation Act,
1963-relief of declaration can be sought
within three years-averments made in the
plaint disclose illusory cause of action-
date of knowledge-question of limitation
is directly related to the cause of action-
cause of action, being the mixed question
of fact and law-can be examined on the
basis of evidence led by parties during
trial- e plea of limitation can be decided
based on the pleadings of the parties after
framing an issue under Order VI Rule 13
of the CPC-mixed question fact and law-
on the question of limitation, the plaints
cannot be rejected at the threshold.
(paras 180,189, 190, 191, 194 and 195)

HELD:
The aforesaid recital about the name of the
trust and description of the property of Katra
Keshav Dev clearly shows that Suit No. 43 of
1967 was filed by concealing the true facts by
its plaintiffs. Sewa Sansthan was not the owner
and was not in possession of the property of
Katra Keshav DeVs It misrepresented itself as
the owner and Zamindar and in possession of
entire area of 13.37 acres land known as Katra
Keshav DeVs Further the property was endowed
to the Janmabhoomi Trust and not to Sewa
Sansthan by the trust deed dated 09.03.1951.
The property endowed to the Janmabhoomi
8 All. Bhagwan Shrikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
1185
Trust was mentioned in the trust deed by metes
and bounds. (Para 189)

Conclusively, Suit No. 43 of 1967 was not filed
by its plaintiffs by disclosing their true identity
and their status qua the property. Since the
property of Katra Keshav Dev was endowed to
the Janmabhoomi Trust and it was never
transferred or vested in Sewa Sansthan,
therefore, the plaintiffs in the said suit had no
right or authority, either to file the suit or to
enter into the compromise dated 12.10.1968
and to concede two bighas land of the temple to
the defendants. (Para 190)

In the case in hand, the question of limitation is
directly related to the cause of action. The
cause of action, being the mixed question of
fact and law, as averred in the plaints can only
fuller and finally be examined on the basis of
the evidence led by the parties during the trial.
(Para 191)

The plea of limitation can be decided based on
the pleadings of the parties after framing an
issue under Order VI Rule 13 of the CPC. On the
basis of the chain of events as averred in the
plaints, at this stage, when the maintainability
of the suit is challenged by the defendants, the
question of limitation cannot be determined
without framing an issue and taking the
evidence of the parties. Since the question of
limitation is a mixed question of fact and law,
therefore, on the question of limitation, the
plaints cannot be rejected at the threshold.
(para 194)

E. Bar under Order XXIII Rule 3A of the
CPC- Suit No. 43 of 1967 was filed in
1967-
compromise
was
entered
on
12.10.1968- title and the possession of
Shahi Masjid Idgah were settled on the
basis of the terms of such compromise-
provisions of Order XXIII Rule 3A of the
CPC would apply- decree is challenged by
any of the parties already arrayed in the
suit-plaintiffs not party to the suit in
which
compromise
was
reached-
e
plaintiffs are strangers to the proceedings
in Suit No.43 of 1967- express bar
imposed under the provisions of Order
XXIII Rule 3A of the CPC does not apply.
(paras 196, 200 and 202)
HELD:
The provisions of Order XXIII Rule 3A of the
CPC would apply where the decree is challenged
by any of the parties already arrayed in the suit.
Had the compromise dated 12.10.1968 been
challenged by the parties to Suit No.43 of 1967,
the subsequent suit brought by the parties to
that suit would have been barred by the
provisions under Order XXIII Rule 3A of the
CPC. (para 200)

Since the plaintiffs are strangers to the
proceedings in Suit No.43 of 1967, therefore,
the express bar imposed under the provisions of
Order XXIII Rule 3A of the CPC does not apply.
Hence, I am of the view that the suits of the
plaintiffs are not barred by the provisions
contained under Order XXIII Rule 3A of the
CPC. (Para 202)

F. Bar under the Places of Worship
(Special Provisions) Act, 1991-Sections, 3,
4, 6 and 7 of Act of 1991- Act of 1991 does
not define religious character- 'religious
character of the place of worship' has to
be determined-for applicability of the Act
of 1991- averments made in the plaint-
documents filed on behalf of the plaintiffs
in support of their plaints-determinative
factor to decide religious character of the
property-
religious
character
of
the
property can only be determined- basis of
the facts and circumstances of the case-
basis of the evidence to be led by the
parties during the trial- Section 4(3)(a) of
Act
of
1991
expressly
bars
the
applicability of the provision of subSection (1) and (2) of Section 4- any place
of worship, which is an ancient and
historical monument or an archaeological
site or remains covered by the Act of 1958
or any other law for the time being in
force- principle of 'first in existence' or
'prior in existence' is the determinative
factor for deciding the applicability of the
provisions of the Act of 1991- 'once a
temple, always a temple' is a judicially
recognized principle of law- determination
of the religious character of the suit
property is a mixed question of fact and
law- religious character of the property
has to be determined after framing of the
issues on the basis of the pleadings of the
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
parties- suits of the plaintiffs do not
appear to be barred under any provision of
the Act of 1991. (paras 217, 218, 219,
220, 224 , 225, 226, 227, 228, 23, 232 and
233)
HELD:

The Act of 1991 does not define 'religious
character'. To attract the provisions of this Act,
the 'religious character of the place of worship'
has to be determined. This Act does not bar
determination of question of fact as to the
religious character of a particular place of
worship by the Court. The religious character of
the place of worship is the determinative factor
for deciding the applicability of the provisions of
the Act of 1991 over a property. (Para 217)

The averments made in the plaint as well as the
documents filed on behalf of the plaintiffs in
support of their plaints can also be a
determinative factor to decide the religious
character of the property. The sale deed dated
08.02.1944, executed by Rai Krishna Das and
Rai Anand Krishna in favour of Mahamana Pt.
Madan Mohan Malviya & ors.and, the trust deed
dated 09.03.1951, creating a trust in the name
of Shree Krishna Janmbhoomi Trust by late
Jugal Kishore Birla to construct a lofty temple
over
the
property
can
be
taken
into
consideration during the trial to determine the
religious character of the suit property. The
documents relating to Suit No. 43 of 1967, the
compromise dated 12.10.1968 entered into
between the parties in the aforesaid suit, entry
in revenue records, facts relating to historical
backgrounds as referred to hereinbefore, certain
notifications, information obtained through RTI
by the plaintiffs, entries in the records of
Municipal Corp. of Mathura and Vrindavan are
brought on record by the plaintiffs in their
respective suits. All these documents are related
to the suit property and are in support of the
subsequent developments which had taken
place from time to time. These documentary
evidence can be taken into consideration for
determination of the religious character of the
property and are subject to evidence led by the
parties during the trial. (Para 218)

The religious character of the property can only
be determined on the basis of the facts and
circumstances of the case and on the basis of
the evidence to be led by the parties during the
trial. There is a rival claim of the parties about
the nature and use of the suit property. The
defendants claim it to be a mosque, while the
plaintiffs claim that since time immemorial, the
property has been worshipped as a temple of
Lord Shree Krishna. (Para 220)

Section 4(3)(a) of Act of 1991 expressly bars
the applicability of the provision of sub-Section
(1) and (2) of Section 4, to any place of
worship, which is an ancient and historical
monument or an archaeological site or remains
covered by the Act of 1958 or any other law for
the time being in force. (Para 224)

This Court finds substance in the argument of
the plaintiffs that the principle of 'first in
existence'
or
'prior
in
existence'
is
the
determinative
factor
for
deciding
the
applicability of the provisions of the Act of 1991.
The arguments of learned Senior Counsel, Sri C.
S. Vaidyanathan, that 'once a temple, always a
temple' is a judicially recognized principle of law
and learned Counsel, Sri Satyaveer Singh, that
'resolution always stays alive' (संकमप ह मेशा ण्जंदा
रहता है, और यह क भी मेरता नहींहै) are also
indicative of the religious character of the
property as temple. (Para 228)

The Court also find substance in the argument
that the provisions contained in Section 39(2) of
the Act of 1958 and entries made in Seventh
Schedule of the Constitution of India are
important aspects to be considered as one of
the factors with regard to non-applicability of
the provisions of the Act of 1991 over the suit
property at this stage. (para 231)

In view of the above discussion, this Court is of
the
opinion
that
under
the
facts
and
circumstances of the case, the determination of
the religious character of the suit property is a
mixed question of fact and law. The religious
character of the property has to be determined
after framing of the issues on the basis of the
pleadings of the parties, and after taking
documentary and oral evidence to be led by the
parties during the trial. (Para 232)

This Court is also of the opinion that on the
basis of the averments made in the plaints and
8 All. Bhagwan Shrikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
1187
the documents brought on record and further
considering the arguments advanced on behalf
of the rival parties, at this stage, the suits of the
plaintiffs do not appear to be barred under any
provision of the Act of 1991. (Para 233)

G. Bar under the Waqf Act, 1995-Sections
3(r), 4, 5 of the Act, 1995- defendants
have
not
brought
on
record
any
information to corroborate- suit property
was ever called as 'Idgah Masjid Aalmgiri'-
defendants defined as a trust and not
waqf- during several rounds of litigation-
nowhere it was pleaded that the suit
property was a waqf property-notification
dated 25.02.1994- at this stage it cannot
be assumed that the suit property was
notified as a 'waqf property' under this
Notification- amendment in Section 6 of
the Act of 1995, for substituting the
phrase 'any person interested therein'
with 'any person aggrieved' is prospective
in
nature
and
is
effective
from
01.11.2013-Waqf
Tribunal
has
no
jurisdiction to decide these suits- suits are
not barred under any provision of the Act
of 1995. (paras 244, 246, 247, 248, 256,
257, 261, 262, 263 and 264)
HELD:
The defendants have not brought on record any
information to corroborate that the suit property
was ever called as 'Idgah Masjid Aalmgiri'.
Almost all the plaints have described the
defendants to be a trust and not as waqf. Even
in their application under Order VII Rule 11 of
the CPC, the defendants have not mentioned
the waqf number. (para 246)

The present superstructure came into existence
on the basis of the compromise dated
12.10.1968. It is also to be taken into
consideration that during several rounds of
litigation, prior to institution of Suit No. 43 of
1967 nowhere it was pleaded that the suit
property was a waqf property. (para 247)

In view of the foregoing observation and the
averments made in the plaint, prima facie, it
appears that the Notification dated 25.02.1944
does not relate to the suit property. Thus, at this
stage it cannot be assumed that the suit
property was notified as a 'waqf property' under
this Notification. (Para 248)
In view of the above, it appears that the Waqf
Tribunal has no jurisdiction to decide the issues
involved in the present suits. Since, there is no
admission on the part of the plaintiffs that the
suit property is a waqf property, therefore,
question of jurisdiction does not arise at this
stage. (Para 261)

Documentary
evidence
corroborating
the
averments made in plaints are brought on
record by the plaintiffs. Whereas, except for the
Notification
dated
25.02.1944,
no
other
evidence is filed by the defendants. The
evidence filed by the plaintiffs and the
notification filed by the defendants are subject
to evidence to be led by the parties during the
trial. (Para 262)

It is also to be noted that the sale deed dated
8.2.1944 and trust deed dated 9.3.1951 are
more than 30 years old documents. Therefore,
as per Section 90 of the Evidence Act, 1872,
their genuineness may be presumed, unless
rebutted by the defendants. (Para 263)

In view of the above, considering the facts and
circumstances of the case, averments made in
the plaint and the legal proposition referred by
the rival parties, it cannot be assumed that the
suit property is a waqf property. All the facts
and circumstances of the case are subject to
appreciation of oral and documentary evidence
to be led by the parties during the trial.
Therefore, at this stage I am of the view that
the suits are not barred under any provision of
the Act of 1995. (Para 264)

H. Bar under the Specific Relief Act, 1963no relief of possession sought- Section 34
of the Specific Relief Act, 1963-perusal of
plaints- plaintiffs nowhere have admitted
lawful possession of the defendants over
the suit property- plaintiffs claim that they
were
in
possession
since
time
immemorial-
defendants
claim
the
existence of the mosque only from 1669,
when Aurangzeb constructed the mosque
over
the
suit
property-
constructive
possession of the deity over the land from
the time immemorial- legality and validity
of the compromise dated 12.10.1968 are
questions of fact that can only be proved
by the evidence to be led during the trial-
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
question whether the suit is barred by
Section 34 of the Specific Relief Act,1963-
cannot be decided at this stage without
taking and appreciating the evidence of
the parties to be led during the trial- suits
of the plaintiffs are not barred by
provisions of Section 34 of the Specific
Relief Act,1963- plaints in all the suits of
the plaintiffs disclose a cause of action
and they do not appear to be barred by
any provisions of the Waqf Act, 1995; the
Places of Worship (Special Provisions) Act,
1991; the Specific Relief Act, 1963; the
Limitation Act, 1963 and Order XIII Rule
3A of the Code of Civil Procedure Code,
1908. (paras 268, 270, 271, 273, 274 and
275)
HELD:
Perusal of the plaints goes to show that the
plaintiffs
nowhere
have
admitted
lawful
possession of the defendants over the suit
property. It is the case of the plaintiffs that
pursuant to illegal, fraudulent and void ab initio
compromise dated 12.10.1968, two bigha land,
within the area of Katra Keshav Dev, which was
a part of the temple, was conceded to the
defendant. Suit No. 43 of 1967 was filed on the
basis of fraud and misrepresentation. Therefore,
the decree was also based on fraud and
misrepresentation. It was obtained to defeat the
interest of the deity. Hence, any illegal
construction carried out pursuant to the
compromise dated 12.10.1968 is not admitted
to the plaintiffs. (Para 268)

As per the averments made in the plaints, the
plaintiffs claim that they were in possession
since time immemorial and mere demolition of
the temple by the intruders, did not result in
their ouster as they contined to be in possession
over the suit property from time to time and
from regime to regime. The defendants claim
the existence of the mosque only from 1669,
when Aurangzeb constructed the mosque over
the suit property. (para 270)

It is to be taken into consideration that
Aurangzeb did not construct the mosque on the
vacant land. It is the case of the plaintiffs that
Aurangzeb partially demolished the temple and
constructed a superstructure, which is called as
Shahi Masjid Idgah. The defendants did not
claim their possession prior to 1669. In contrast,
the plaintiffs have averred in their respective
plaints that Brijnabha, the great grandson of
Lord Shree Krishna constructed a temple at
Katra Keshav Dev 5000 years ago. (Para 271)

The plaintiffs have claimed the relief for
cancellation of judgement and decree dated
20.07.1973 and judgment and decree dated
07.11.1974 passed in Suit No. 43 of 1967.
Therefore, it cannot be assumed that the
plaintiffs have admitted the lawful possession of
the defendants over the suit property. (para
272)

The constructive possession of the deity over
the land from the time immemorial and the
legality and validity of the compromise dated
12.10.1968 are questions of fact that can only
be proved by the evidence to be led during the
trial. The question that the suits of the plaintiffs
are barred by Section 34 of the Specific Relief
Act,1963 can only be decided after framing a
proper issues on the basis of the pleadings of
the parties during the trial after taking and
appreciating evidence led by the parties. What
relief can and can not be granted has to be
decided by this Court on the basis of the
pleadings and evidence available on record.
Beside this, the plaintiffs have claimed several
reliefs
such
as
cancellation,
declaration,
mandatory injunction as well as for possession
which are subject to evidence to be led during
the trial. The question whether the suit is barred
by Section 34 of the Specific Relief Act,1963
cannot be decided at this stage without taking
and appreciating the evidence of the parties to
be led during the trial. (Para 273)

In view of the foregoing discussions, in my
opinion, it appears that the suits of the plaintiffs
are not barred by provisions of Section 34 of the
Specific Relief Act,1963. (para 274)

On reading of the plaints as a whole and in a
meaningful manner, perusal of the material
placed
on
records,
consideration
of
the
arguments advanced by the rival parties, and
settled legal propositions, I conclude that the
plaints in all the suits of the plaintiffs disclose a
cause of action and they do not appear to be
barred by any provisions of the Waqf Act, 1995;
the Places of Worship (Special Provisions) Act,
1991; the Specific Relief Act, 1963; the
8 All. Bhagwan Shrikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
1189
Limitation Act, 1963 and Order XIII Rule 3A of
the Code of Civil Procedure Code, 1908. (Para
275)

All Applications rejected. (E-14)

List of Cases cited:

1. R K Roja Vs U S Rayudu (2016) 14 SCC 275

2. Dahiben Vs Arvindbhai Kalyanji Bhanusali,
(2020) 7 SCC 366

3. Azhar Hussain Vs Rajiv Gandhi, AIR 1986 SC
1253

4. Saleem Bhai Vs St. of Mah., AIR 2003 SC 759

5. T. Arivandadam Vs T.VS Satyapal, AIR 1977
SC 2421

6. Umesh Chandra Saxena Vs Administrator
General & ors., AIR 1999 ALL. 109

7. Archana Kanaujia Vs Pooja Educational and
Social Development Trust & ors., 2021 ILR 10
ALL. 576

8. M Satyanayaran Murthy Died Vs K Ramalinga
Swami Naidu Died, by the Andhra Pradesh High
Court in Second Appeal No.1023 of 2005

9. Ram Saran & ors.Vs Ganga Devi, AIR 1972 SC 2685

10. Vasantha (Dead) through LRs Vs Rajlakshmi
@ Rajam (Dead) through LRs, 2024 SCC Online
SC 132

11. Rashid Wali Beg Vs Farid Pindari (2022) 4
SCC 414

12. Board of Waqf West Bengal Vs Anis Fatima
Begum, (2010) 14 SCC 588

13. P.VS Gururaj Reddy Vs P. Neeradha Reddy &
ors.; 2015(8) SCC 331

14. Kuldeep Singh Pathania Vs Bikram Singh
Jaryal; 2017 (5) SCC 347

15.
Shaukathussain
Mohammed
Patel
Vs
Khatunben Mohammedbhai Polara; 2019(10)
SCC 226
16. Mayar (H.K.) Ltd. & ors.Vs Owners & Parties,
Vs Parties, Vessel M.VS Fortune Express &
ors.2006(3) SCC 100

17. Kamla & ors.Vs K.T. Eshwara Sa & ors.2008
(12) SCC 661

18. Srihari Hanumdas Totala Vs Hemant Vithal
Kamath 2021 (9) SCC 99

19. M/s Crescent Petroleum Ltd. Vs M V
Monchegorsk & anr., AIR (2000) BOM 161

20. Popat and Kotecha Property Vs St. Bank of
India Staff Assoc., (2005) 7 SCC 510

21. C Natarajan Vs Aashim Bhai, (2007) 14 SCC 183

22. Asma Latif & anr.Vs Shabbir Ahmad & ors.,
Civil Appeal No. 9695 of 2013

23. U.P. Sunni Waqf Board Vs Ancient Idol of
Swayambhoo Lord Vishveshwar & ors., 2023
AHC 239874

24. Anjuman Intezamia Masjid Vs Rakhi Singh,
2023 SCC Online All 208

25. Archaeological Survey of India Vs St. of M.P.
& ors., (2014) 12 SCC 34

26. U P Sunni Central Waqf Board Vs Ancient
Idol of Swayambhu Lord Vishweshwar, 2023 SCC
Online Allahabad 2760

27. Assistant Excise Commissioner, Kottayam &
ors.Vs Esthopian Cherian & anr., 2021 (10) SCC 210

28. Most ReVs P.M.A. Metropolitan Vs Moran Mar
Marthoma, 1995 Supp (4) SCC 286

29. Salem Muslim Burial Ground Protection
Committee Vs St. of T.N. & ors., Civil Appeal
Nos. 7467-7470 of 2014

30. Punjab Waqf Board Vs Sham Singh Harika,
(2019) 4 SCC 688

31. Daya Singh & anr. Vs Gurudev Singh (dead)
by LRS & ors., (2010) 2 SCC 194

32. A.A. Gopalakrishnan Vs Cochin Devaswom
Board, (2007) 7 SCC 482
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
33. Indian Bank Vs Satyam Fibbers (India) Pvt.
Ltd., 1996 (5) SCC 550

34. A V Papayya Sastry & ors.Vs Govt of A.P. &
ors., 2007 (4) SCC 221

35. Chandro Devi Vs U.O.I., 2017 (9) SCC 469

36. Bilkis Yakub Rasool Vs U.O.I. & ors., 2024
SCC OnLine SC 25

37. Srimati Suraj Kumari Vs District Judge
Mirzapur & ors., AIR 1991 Alld 75

38. Balkrishna Savalram Pujari & ors.Vs Shri
Dhyaneshwar Maharashtra Sansthan & ors.AIR
1959 SC 78

39. Khair Mohammad & ors.Vs Jannat & ors.,
AIR 1940 Lah 359

40. Mosque, & ors. Vs Shiromani Gurudwara
Prabandhak Committee, AIR 1938 Lah 369

41. M. Siddiq Vs Mahendra Suresh Das, 2020 (1)
SCC 1

42. Deity Sri Pabuji Maharaj Vs Board of
Revenue, 2023 SCC OnLine Raj 1690

43.
Board
of
Muslim
Waqf
Vs
Radha
Krishan,1979 SCC (2) 468

44. Triloki Nath Singh Vs Anirudh Singh, Civil
Appeal No. 3961 of 2010

45. Shyamlal Ranjan Mukherjee Vs Nirmal
Ranjan Mukherjee, Civil Misc. Writ Petition No.
56447 of 2003

46.
Shriomani
Gurudwara
Prabandhak
Committee Vs Somnath Das, Devkinandan Vs
Murlidhar, 1957 AIR 133

47. St. of M.P. Vs Pujari Utthan Avam Kalyan
Samiti, CA No. 4850/2021

48. Mukundji Maharaj Vs Parshottam Lal Ji, AIR
1957 ALL 77

49. K Santhel Kumar Vs Principal Secretary to
Government, W.P. No.18190/ 2021

50. Salim D Agboatwala & ors.Vs Shamalji
Oddhavaji Thakkar & ors., AIR 2021 SC 502

51.
Swami
Atmanand
Vs
Ram
Krishna
Tapovanam, AIR 2005 SC 2392

52. Church of Christ Charitable Trust &
Educational Charitable Society Vs Ponniamman
Educational Trust, (2012) 8 SCC 706

53. A.B.C. Laminart (P) Ltd. Vs A.P. Agencies,
(1989) 2 SCC 163

54. Thankamma George Vs Lilly Thomas & anr.,
2024 SCC OnLine SC 1673

55. Saranpal Kaur Anand Vs Praduman Singh
Chandhok, (2022) 8 SCC 401

(Delivered by Hon'ble Mayank Kumar Jain, J.)

1. Heard S/Sri C.S. Vaidyanathan, learned
Senior Counsel, Hari Shanker Jain, Vishnu
Shanker Jain, assisted by Ms. Mani Munjal and
Mr Parth Yadav, Rahul Sahai, learned Senior
Counsel, Anil Kumar Airi, learned Senior
Counsel, Mahendra Pratap Singh, Saurabh
Tiwari, Ajay Kumar Singh, Hare Ram Tripathi,
Prabhash Pandey, Pradeep Kumar Sharma,
Vinay Sharma, Gaurav Kumar, Siddharth
Srivastava, Anil Kumar Singh, Ashish Kumar
Srivastava,
Ashvanee
Kumar
Srivastava,
Satyaveer Singh, Dr. Dharmesh Chaturvedi,
Arya Suman Pandey, Rama Nand Gupta,
Harshit
Gupta,
Saurabh
Basu,
Gopal
Srivastava, Anil Kumar Bisen, Ajay Pratap
Singh, Rana Singh, Amit Kumar, Naman
Kishore Sharma, Jawahar Yadav, Kumar Beenu
Singh, Aniruddh Tiwari, Ugrasen Kumar
Pandey, Radhey Shyam Yadav, Brahm Kumar
Tiwari, Mayank Singh, Tejas Singh, Alok
Dubey, Kumar Anish, A. K. Malviya, Amitabh
Trivedi, Rajesh Kumar Shukla, Mrs. Rama
Goyal Bansal and Mrs. Reena N Singh, learned
Counsel for the plaintiffs. S/Sri Rajendra
Maheshwari, Advocate and Ashutosh Pandey,
appearing in person.
8 All. Bhagwan Shrikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
1191
Mrs.
Tasneem
Ahmadi,
S/Sri
Mehmood Pracha, Nasiruzzaman, Pranav
Ojha, Hare Ram Tripathi, Manoj Kumar
Singh, Afzal Ahmad, Tanveer Ahmad and
Imran, learned Counsel for the defendants.

2. Original Suits No.1 to 18 of
2023, which were filed by respective
plaintiffs before the Court of Civil Judge
(Senior
Division),
Mathura,
stand
transferred to this Court, pursuant to order
dated 26.05.2023 passed by this Court in
Transfer Application (Civil) No.88 of 2023
(Bhagwan Shrikrishna Virajman and 7
Others vs. U.P Sunni Central Waqf
Board and 3 Others).

3. Original Suits No.17 and 18 of
2023, stand transferred to this Court,
pursuant to order dated 16.11.2023 passed
in Original Suit No.1 of 2023 on the basis
of the report submitted by the District
Judge, Mathura.

4. Vide order dated 06.10.2023
passed by Hon'ble the Chief Justice,
Allahabad High Court, these suits were
nominated to this Bench.

5. Committee of Management,
Trust Alleged Shahi Masjid Idgah1 and
U.P. Sunni Central Waqf Board2, arrayed as
defendants in OSUT No.1 of 2023
(Bhagwan Shrikrishna Virajman At
Katra Keshav Dev Khewat No. 255 and
7 Others vs. U.P. Sunni Central Waqf
Board And 3 Others), have filed
applications (numbered as A-17, A-18
and A-37) under Order VII Rule 11 (d)
read with Section 151 of the Civil
Procedure Code, 19083 inter alia, praying
to reject the plaints as suit filed by the
plaintiffs is barred by the provisions of
various statutes.

6. During the pendency of the
above applications, an application under
Order XXVI Rules 9 and 10 read with
Section 151 of the CPC was moved on
behalf of the plaintiffs in OSUT No.1 of
2023 for appointment of a panel of three
advocates as commission, seeking the
following relief:-

"A. Appoint a commission
consisting of three advocates with
direction to submit report in the
light of the averment made in the
suit and in this application and that
entire commission proceeding be
photographed and video-graphed
and the report be submitted in the
time provided by the Hon'ble
Court;
B. Police protection may be
directed to be provided by the
District
administration
and
to
maintain law and order situation
during the survey proceeding."

7. The matter was heard by this Court
on the following issues:-

a. Whether an application
for rejection of plaint should be
decided prior to the application for
appointment of a commission.
b.
Application
for
appointment of commission under
Order XXVI Rules 9 and 10 of the
CPC. (Application No.130 C)

8. This Court, vide its order dated
14.12.2023, concluded that an application
for appointment of commission can be
decided first in order and, therefore,
allowed such application. It was also
observed
that
the
modalities
and
composition of the commission would be
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
decided after hearing learned Counsel for
the parties for such purpose.

9. Aggrieved by this order, the
Committee filed a Special Leave petition
No.481/2024: Committee of Management,
Trust Shahi Masjid Idgah Vs Bhagwan
Shrikrishna Virajman & Ors. Following
orders were passed by the Hon'ble Apex
Court:

"Legal issues arise for
consideration
including
the
question in the light of judgment
passed by this Court in Civil
Appeal No.9695 of 2013 titled
"Asma Lateef & Anr. vs. Shabbir
Ahmad & Ors."
The proceedings before the
High Court will continue. However,
the
Commission
will
not
be
executed till the next date of
hearing."

10. Thus, the proceedings in
respective suits were taken up. OSUT No.
01, 02, 04, 05, 06, 07, 08, 09, 11, 12, 13,
14, 15, 16, and 18, were consolidated by
this Court under Order IV-A of the CPC,
vide its order dated 11.01.2024. OSUT
No.01 of 2023 was made as leading case.
OSUT No.03, 10, and 17 were not
consolidated.

11. The Committee and the Waqf
Board, arrayed as defendants in respective
suits, filed applications under Order VII
Rule 11(d), read with Section 151 of CPC
in most of the cases and in some cases,
applications under Order VII Rule 11 of the
CPC, read with Section 151 of the CPC,
which are numbered as A-17, A-18, A-37 in
OSUT No.1 of 2023; C-57 and C-69 in
OSUT No.2 of 2023; C-20 and C-45 in
OSUT No.4 of 2023; 14-Ka and A-14 in
OSUT No.5 of 2023; A-20, A-30 and A-32
in OSUT No.6 of 2023; A-16 and A-39 in
OSUT No.7 of 2023; A-21, A-22 and C-23
in OSUT No.9 of 2023; A-9 in OSUT
No.11 of 2023; C-30 and C-49 in OSUT
No.12 of 2023; C-36 and A-46 in OSUT
No.13 of 2023; C-18 and C-23 in OSUT
No.14 of 2023; C-12 and C-22 in OSUT
No.15 of 2023; A-7, A-17 and A-18 in
OSUT No.16 of 2023; A-14 in OSUT
No.17 of 2023; and A-7 in OSUT No.18 of
2023).

The aforesaid applications, include
the applications moved in the Court of
Civil Judge, Senior Division, Mathura.

12. It is averred in the applications
that the plaint is liable to be rejected since
it does not disclose any cause of action and
the suits of the plaintiffs are barred under
certain statutes.

13. For proper appreciation of
facts to decide the maintainability of suits
under Order VII Rule 11 read with Section
151 of CPC, it would be germane to
summarize the facts set out by the plaintiffs
in their respective plaints. They are as
under: -

i. Lord Shree Krishna is the
incarnation of Lord Vishnu.