# C/M Anjuman Intezamia Masajid Varanasi Revisionist v. Smt. Rakhi Singh & Ors

- **Citation:** (2023) 7 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Civil Revision No. 101 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-anjuman-intezamia-masajid-varanasi-revisionist-v-smt-rakhi-singh-ors-50600
- **Pages:** 41

## Headnote

Sri Prabhash Pandey, Sri Arya Suman
Pandey, Sri Saurabh Tiwari, Si Vishnu
Shankar Jain, Sri Vineet Sankalp, Sri Hari
Shanker Jain, Ms. Mani Munjal, Sri Parth
7 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
713
Yadav, Sri Pradeep Sharma, Sri M.C.
Chaturvedi (Addl. A.G.), Sri Bipin Bihari
Pandey (C.S.C.-V), Sri Rananjay Singh
(Addl. C.S.C.), Sri Shrawan Kumar Dubey,
Sri Girijesh Kumar Tripathi & Sri Hare Ram
Tripathi, S.C.

The
Places
of
Worship
(Special
Provisions) Act, 1991-Sections 3 & 4 -
The Waqf Act, 1995- Section 85-Plaintiff
Respondent instituted suit against the St. of
U.P.
&
ors.including
Petitioner/defendant
representing Gyanvapi mosque-claiming their
right to do pooja of the Deities on Settlement
Plot No.9130 be declared -and the defendants
be restrained from interfering in the exercise
of their right by the plaintiffs to do pooja,
aarti, bhog of the Deities-nor demolish or
destroy any part of images of those DeitiesApplication under Order VII Rule 11 CPC filed
claiming the suit is barred by the Act, 1991- -
rejected-Revision- mere asking to enforce a
subsisting right that inheres with hindu
devotees since long to worship Hindu Deities
located in the suit property -at their specified
place- it is not an act that changes the
character of the Gyanvapi Mosque into a
temple-does
not
attract
the
bar
under
Sections 3 and 4 of the Act of 1991- no relief
claimed by the plaintiffs which is required to
be decided by a Tribunal under the Act of
1995 within the meaning of Section 85 -
absolutely no relief claimed regarding title or
possession with regard to the suit property,
claimed to be waqf, so as to bring in the
ouster of jurisdiction under Section 85.

Revision dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,944 of 141,085. This is a partial read: ask again with offset=39944 for what follows._

712 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused if enlarged on bail, he is not
likely to commit any offence while on bail,
it is essential to note that the Hon'ble
Supreme Court in the case of Ranjitsingh
Brahmajeetsing Sharma (supra) had
clearly held that while forming a view with
regard to future conduct of the accused, the
court should consider keeping in view the
antecedents of the accused, his propensity
and the nature and the manner in which he
is alleged to have committed the offence. In
the present case, the accused has no
criminal antecedents and thus, I have
reasons to record satisfaction as is required
in the second part of Section 37(1)(b)(ii) of
the Act. Although, delayed trial in itself is a
ground for grant of bail in the cases under
N.D.P.S. Act, the court cannot ignore the
fact that after about two years of detention,
only one witness has been examined. This
view has been recently taken by the
Hon'ble Supreme Court in the case of
Mohd Muslim @ Hussain (supra) and the
order passed by the Hon'be Apex Court in
the Case of Rabi Prakash vs. The State of
Odisha decided in the Special Leave to
Appeal (Crl.) No(s).4169/2023. I am not
going to the other arguments raised at the
bar with regard to the violation of Circular
No.1/88,
the
factum
regarding
the
conscious possession which is to be
analyzed after the evidence. Any finding at
this stage may have affect on the outcome
of the trial and the same are also not
required in view of my findings recorded
above pertaining to the violation of
condition under Section 50 N.D.P.S. Act. In
view of the findings recorded above, the
accused- applicant is entitled to be enlarged
on bail. Thus, the bail application is
allowed.

25. Let the applicant Wahid Ali be
released
on
bail
in
aforesaid
first
information report number subject to his
furnishing a personal bond and two reliable
sureties each of the like amount to the
satisfaction of the court below concerned
with the following conditions:

(a) The applicant shall execute a
bond to undertake to attend the hearings;

(b) The applicant shall not
commit any offence similar to the offence
of which he is accused or suspected of the
commission; and

(c) The
applicant
shall
not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.
----------
(2023) 7 ILRA 712
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 101 of 2022

C/M Anjuman Intezamia Masajid Varanasi
 ...Revisionist
Versus
Smt. Rakhi Singh & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Sri Syed Ahmed Faizan, Sri S.F.A. Naqvi
(Sr. Advocate), Sri Zaheer Asghar, Ms.
Fatma Anjum, Sri Mahmood Alam.

Counsel for the Opposite Parties:
Sri Prabhash Pandey, Sri Arya Suman
Pandey, Sri Saurabh Tiwari, Si Vishnu
Shankar Jain, Sri Vineet Sankalp, Sri Hari
Shanker Jain, Ms. Mani Munjal, Sri Parth
7 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
713
Yadav, Sri Pradeep Sharma, Sri M.C.
Chaturvedi (Addl. A.G.), Sri Bipin Bihari
Pandey (C.S.C.-V), Sri Rananjay Singh
(Addl. C.S.C.), Sri Shrawan Kumar Dubey,
Sri Girijesh Kumar Tripathi & Sri Hare Ram
Tripathi, S.C.

The
Places
of
Worship
(Special
Provisions) Act, 1991-Sections 3 & 4 -
The Waqf Act, 1995- Section 85-Plaintiff
Respondent instituted suit against the St. of
U.P.
&
ors.including
Petitioner/defendant
representing Gyanvapi mosque-claiming their
right to do pooja of the Deities on Settlement
Plot No.9130 be declared -and the defendants
be restrained from interfering in the exercise
of their right by the plaintiffs to do pooja,
aarti, bhog of the Deities-nor demolish or
destroy any part of images of those DeitiesApplication under Order VII Rule 11 CPC filed
claiming the suit is barred by the Act, 1991- -
rejected-Revision- mere asking to enforce a
subsisting right that inheres with hindu
devotees since long to worship Hindu Deities
located in the suit property -at their specified
place- it is not an act that changes the
character of the Gyanvapi Mosque into a
temple-does
not
attract
the
bar
under
Sections 3 and 4 of the Act of 1991- no relief
claimed by the plaintiffs which is required to
be decided by a Tribunal under the Act of
1995 within the meaning of Section 85 -
absolutely no relief claimed regarding title or
possession with regard to the suit property,
claimed to be waqf, so as to bring in the
ouster of jurisdiction under Section 85.

Revision dismissed. (E-9)

List of Cases cited:

1. Sopan Sukhdeo Sable & ors. Vs Assistant
Charity Commissioner & ors., (2004) 3 SCC 137

2. Mohd. Aslam @ Bhure Vs U.O.I.& ors., (1994)
2 SCC 48

3. Abdul Gafur & anr.Vs St. of Uttarakhand &
ors., (2008) 10 SCC 97

4. Bhargavi Constructions & anr.Vs Kothakapu
Muthyam Reddy & ors., (2018) 13 SCC 480
5. Sree Surya Developers & Promoters Vs N.
Sailesh Prasad & ors., (2022) 5 SCC 736

6. T. Arivandandam Vs T.VS Satyapal & anr.,
(1977) 4 SCC 467

7. Madanuri Sri Rama Chandra Murthy Vs Syed
Jalal, (2017) 13 SCC 174

8. Most ReVs P.M.A. Metropolitan & ors.Vs
Moran Mar Marthom Vs & anr., 1995 Supp (4)
SCC 286

9. Ram Jankijee Deities & ors.Vs St. of Bihar &
ors., (1999) 5 SCC 50

10.
M.
Siddiq
(dead)
through
Legal
Representatives
(Ram
Janmabhumi
Temple
Case) Vs Mahant Suresh Das & ors., (2020) 1
SCC 1

11. Ganesh Vs Sri Ram Lalaji Maharaj Birajman
Mandir & ors., 1972 SCC OnLine All 244 : AIR
1973 All 116 (FB)

12. Nari Shringar Big Bazar, Nagpur & anr.Vs
Pantaloon Retailing (India) Ltd., Mumbai Vs&
anr., (2008) 3 Mah.L.J. 698

13. St. of Bihar Vs Radha Krishna Singh & ors.,
(1983) 3 SCC 118

14. Sital Das Vs Sant Ram & ors., AIR 1954 SC
606

15. Sri Adi Visheshwara of Kashi Vishwanath
Temple, Varanasi & ors.Vs St. of U.P. & ors.,
(1997) 4 SCC 606

16. Board of Muslim Wakfs, Rajasthan Vs Radha
Kishan & ors., (1979) 2 SCC 468

17. Ramesh Gobindram (Dead) Through LRs Vs
Sugra Humayun Mirza Wakf, (2010) 8 SCC 726

18. Din Mohammad & ors.Vs Secretary of St.,
AIR 1942 All 353

19. U.O.I.& ors. Vs Vasavi Cooperative Housing
Society Limited & ors., (2014) 2 SCC 269

20. Prabhagiya Van Adhikari Awadh Van
Prabhag Vs Arun
714 INDIAN LAW REPORTS ALLAHABAD SERIES
21. Kumar Bhardwaj (Dead) through LRs. &
ors., 2021 SCC OnLine SC 868

22. P.VS Guru Raj Reddy represented by GPA
Laxmi Narayan Reddy & anr. Vs P. Neeradha
Reddy & ors., (2015) 8 SCC 331

23. H.S. Deekshit & anr. Vs M/s. Metropoli
Overseas Ltd. & ors., 2022(4) ICC 944

24. T. Arivandandam Vs T.VS Satyapal Vs& anr.,
(1977) 4 SCC 467

25. Jawahra & ors.Vs Akbar Husain, ILR, (1885)
7 All 178 (FB)

26. Baiju Lal Parbatia & ors.Vs Bulak Lal Pathuk,
ILR (1897) 24 Cal 385

27. Ram Chandra & ors.Vs Ali Muhammad &
ors., ILR (1913) 35 All 197

28. Balakrishna Savalram Pujari Waghmare &
ors.Vs Shree Dhyaneshwar Maharaj Sansthan &
ors., AIR 1959 SC 798

29. Hukum Chand Vs Maharaj Bahadur Singh,
AIR 1933 PC 193

(Delivered by Hon'ble J.J. Munir, J.)

This is a defendant's Civil Revision
under Section 115 of the Code of Civil
Procedure, 1908, arising out of an order of
Dr. Ajaya Krishna Vishvesha, the District
Judge of Varanasi, rejecting an application
by the defendant-revisionist under Order
VII Rule 11 CPC in Original Suit No.18 of
2022.

The reliefs claimed in the Suit

2. The five plaintiff-respondents to
this revision have instituted Original Suit
No.18 of 2022 against the State of Uttar
Pradesh,
represented
by
the
Chief
Secretary, the District Magistrate, Varanasi,
the Commissioner of Police, Varanasi, the
Committee
of
Management, Anjuman
Intezamia Masajid, Varanasi through its
Secretary,
representing
the
Gyanvapi
Mosque and the Board of Trustees, Sri
Kashi Vishwanath Temple through the
Chief Executive Officer/Secretary of the
Board, seeking reliefs of declaration,
permanent
prohibitory
injunction
and
mandatory injunction, which can best be
understood by a reproduction of these
verbatim:

"a) Decree the suit for declaration
declaring that Plaintiffs are entitled to have
Darshan, Pooja and perform all the rituals
of Maa Srinigar Gauri, Lord Ganesha, Lord
Hanuman and other visible and invisible
deities within old temple complex situated
at settlement Plot No.9130 (Nine Thousand
One Hundred Thirty) in the area of Ward
and P.S. Dashwamedh District Varanasi;

b) Decree the suit for permanent
injunction restraining the Defendants from
imposing any restriction, creating any
obstacle, hindrance or interference in
performance of daily Darshan, Pooja,
Aarti, Bhog and observance of rituals by
devotees of Goddess Maa Sringar Gauri at
Asthan of Lord Adi Visheshwar along with
Lord
Ganesha,
Lord
Ganesha,
Lord
Hanuman, Nandiji and other visible and
invisible deities within old temple complex
situated at settlement Plot No 9130 (Nine
Thousand One Hundred Thirty) in the area
of Ward and P.S. Dashwamedh District
Varanasi;

c) Decree the suit for permanent
injunction restraining the Defendants from
demolishing, damaging,
destroying
or
causing any damage to the images of
deities Goddess Maa Sringar Gauri at
Asthan of Lord Adi Visheshwar along with
Lord
Ganesha,
Lord
Ganesha,
Lord
Hanuman, Nandiji and other visible and
invisible deities within old temple complex
situated at settlement Plot No.9130 (Nine
7 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
715
Thousand One Hundred Thirty) in the area
of Ward and P.S. Dashwamedh District
Varanasi;

d) Decree the suit for mandatory
injunction, directing the Government of
Uttar Pradesh and District Administration
to make every security arrangement and
facilitate daily Darshan, Pooja, Aarti, Bhog
by devotees of Maa Sringar Gauri along
with Lord Ganesha, Lord Hanuman, Nandji
and other images and deities within the
precincts of temple complex known as
'Ancient temple' existing at settlement Plot
No.9130 (Nine Thousand One Hundred
Thirty) within the area of Ward and P.S.
Dashwamedh the heart of the city of
Varanasi;"

e) Grant such other relief for
which the Plaintiffs may be found entitled
to or which may be deem fit and necessary
in the interest of justice; and

f) Decree the suit with costs in
favour of Plaintiffs and against the
Defendants;"

The Application under Order VII
Rule 11 CPC

3. An application has been made in
this suit on behalf of the revisionistdefendant No.41, to wit, the Committee of
Management, Anjuman Intezamia Masajid,
Varanasi, saying that the plaint ought to be
rejected without a trial of the suit, because
the suit is barred by The Places of Worship
(Special Provisions) Act, 19912. The basis
to say this, according to the revisionist, is
that the plaintiffs have claimed a relief to
the effect that their right to do pooja of the
Deities on Settlement Plot No.9130 be
declared and further that the defendants be
restrained from interfering in the exercise
of their right by the plaintiffs to do pooja,
aarti, bhog of the Deities, nor demolish or
destroy any part of images of those Deities.
The objection pleading the bar claimed
under the Act of 1991 proceeds on the basis
that in Plot No.9130, there is in existence
the Gyanvapi Mosque for the past 600
years and is still in existence, where
Muslims from the city of Varanasi and its
neighbourhood offer namaz five times a
day as also on the two Eid and Fridays etc.,
without any let or hindrance.

4. It is the revisionist's case that under
the Act of 1991, the religious character of a
place of worship, as existing on 15th
August, 1947, shall continue as it was, with
no change to it. The statutory bar, therefore,
pleaded is that by the relief claimed in the
suit, the plaintiffs want to alter the
character of the Gyanvapi Mosque. This
objection is further supported on the foot of
the contents of Paragraph No.5 of the said
application, where it is said that the
contents
of
Paragraph
No.12,
subParagraphs Nos. (i) to (xiv) of the plaint
make it manifest that whatever facts have
been pleaded there, relate to the Gyanvapi
Mosque, that is in existence for the past
600 years and that the plaintiffs seek relief
of doing pooja, archana in the said
Mosque. This would violate the Act of
1991, attracting the bar. This objection is
also supplemented by asserting that in
Paragraph No.29 of the plaint, it is said that
the building complex is in the control of the
Committee
of
Management, Anjuman
Intezamia Masajid, Varanasi which shows
that the relief claimed in the suit is with
regard to the Gyanvapi Mosque and that all
of it is clever drafting.

5. The other objection is that the suit
is barred by The Uttar Pradesh Sri Kashi
Vishwanath Temple Act, 19833. The
objection based on the Act of 1983 is to be
found in Paragraph No.4 of the application,
which asserts that the Government of U.P.
716 INDIAN LAW REPORTS ALLAHABAD SERIES
enacted the Act of 1983, by which, the
control of the entire Kashi Vishwanath
premises and its upkeep was entrusted to
the Board of Trustees. It is the Board of
Trustees of Sri Kashi Vishwanath Temple
that has to take care of all the Gods and
Goddesses and management of their affairs.

6. The next statute, under which the
suit is said to be barred, is The Waqf Act,
19954. The basis of the last mentioned
objection is to be found in Paragraph Nos.6
and 7 of the application, where it is said
that the Gyanvapi Mosque, which has been
described
in
Paragraph
No.12,
subParagraph Nos.(i) to (xiv) of the plaint, is
waqf property, which is recorded as Waqf
No.100, Banaras with the U.P. Sunni
Central Board of Waqf, Lucknow. The
objection is that since the plaintiffs claim a
right in property that is waqf, the Civil
Court's jurisdiction to try the suit is barred
under Section 85 of the Act of 1995. It is on
the basis of all these three statutes that the
revisionist has urged that the suit is barred
under Order VII Rule 11(d) of the Code of
Civil Procedure, 19085.

7. In their reply filed to the application
under Order VII Rule 11 of the Code, the
plaintiffs say that the application is not
based on the averments made in the plaint
and the plea regarding bar to the suit under
the Act of 1991 has been raised to prolong
litigation and avoid a hearing on merits. It
has been asserted that there is no mosque
within Settlement Plot No.9130, situate in
the area of ward and Police Station
Dashashwamedh, Varanasi, which has been
described as the suit property in the plaint,
and also, in the reply to the application
under Order VII Rule 11.

8. The crux of the reply to the
application under Order VII Rule 11 of the
Code carried in Paragraph Nos.4 to 8,
including sub-Paragraphs of Paragraph
No.8, is that there have been Deities in the
suit property from time immemorial. The
forcible offering of namaz within the
property in question, at a particular point of
time or a particular place, would not alter
its character into a mosque. The principle
of first existence has also been invoked.
The scope of the suit has been spelt out as
one to restrain the defendants from
interfering in the performance of darshan,
pooja of Goddess Maa Sringar Gauri, Lord
Ganesha, Lord Hanuman, Nandiji, visible
and invisible Deities, mandaps and shrines,
existing within the old temple complex i.e.
the suit property. It has been emphasized
that these Deities are continuously in
existence within the property in question
since before 15th of August, 1947 and the
worshippers have a right to darshan and
pooja of the Deities. They have every right
to file a suit to protect and preserve the
right to practice their religion flowing from
Article 25 of the Constitution. The main
events relating to the establishment of the
Temple, its destruction across a number of
events and restoration have been set out in
historical detail. There is also a reference to
an earlier suit on the issue, being Civil Suit
No.62 of 1936, where the testimony of
witnesses recorded during trial establishes
that the Deities were in existence within the
suit property before 15th August, 1947.

9. It is further on mentioned, in the
reply to the application under Order VII
Rule 11 of the Code that the report of the
Advocate
Commissioner,
who
was
appointed to carry out the inspection,
would throw light on the averments in the
plaint and the plaintiffs would point out,
based on evidence, the specified places
within the suit property, where the Deities
exist for worship by the plaintiffs. It has
7 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
717
been emphasized that the scope of the
Court's jurisdiction under Order VII Rule
11 is confined to averments in the plaint
and the revisionist's case cannot be
considered at this stage. The averments in
the plaint and the material on record make
it clear that the Deities are existing within
the suit property since before 15th August,
1947, and, therefore, the provisions of the
Act of 1991 would not bar the suit at all. It
is emphasized that under the Hindu Law, a
property once vested in the Deity, shall
continue to be the Deity's property and
destruction (of the temple or the property),
if any, cannot change the nature of the
property.

10. There is also an averment in the
reply to the application under Order VII
Rule 11 of the Code based on the principle
that the destruction of the idol does not lead
to the termination of its pious purpose, and
consequently, by an act of destruction of
the idol, neither the endowment, its purpose
nor
existence
can
be
effaced.
The
dedication of the property to the idol once
vested in it would also continue, as would
the idol's legal personality. The crux of the
reply is that the Deities of Maa Sringar
Gauri, Lord Ganesha, Lord Hanuman and
the other visible and invisible Deities
within the old temple complex i.e. the suit
property, having once been established,
intermittent acts of destruction would not
efface their existence or the suit property,
once vested in the Deities.

11. The thrust of this part of the
plaintiffs' reply to the application under
Order VII Rule 11 of the Code is that given
the existence of the idols since time
immemorial in the precincts of the suit
property, the provisions of the Act of 1991
would not bar the suit. Dwelling further
upon the reply to the application under
Order VII Rule 11 based on the provisions
of Section 4(1) of the Act of 1991, it is said
that under the statute, the religious
character of a place of worship existing on
the 15th of August, 1947, has to be
preserved. It is, therefore, imperative for
the parties to the suit to prove before the
Court by evidence led at the trial as to what
was the religious character of the property
prevalent on the 15th August, 1947.
Therefore, the plaint cannot be summarily
rejected, invoking Rule 11 of Order VII of
the Code.

12. It has further on been said in the
reply that the plaintiffs have laid foundation
by facts pleaded in the plaint that the
religious character of the suit property was
that of a Hindu Temple and the Deities
were being worshipped there within the suit
property. It is also said in the reply that
under Section 2(c) of the Act of 1991, the
term 'Mosque' means a religious Islamic
construction raised according to Islamic
tenets. It is not permissible under the Hindu
law or the Muslim law to raise any
construction over the religious property of
the other religious community, which is
precisely the case here. It is also
emphasized in the reply that in Paragraph
No.4 of the plaint, it has been clearly
averred
that
Raja
Todarmal
had
reconstructed a magnificent Temple of Lord
Shiva at the same place, where the original
Temple existed i.e. in Plot No.9130 on a
grand scale, consisting a central Sanctum
(Garbhgrih) surrounded by eight mandaps.
In Paragraph No.6 of the plaint, it has been
pleaded that Muslims, without creating any
waqf or acquiring ownership of land
lawfully, have forcibly raised constructions,
which has been termed as the Gyanvapi
Mosque. In other paragraphs of the plaint,
it has been pleaded that the worshippers
have been worshipping the old and existing
718 INDIAN LAW REPORTS ALLAHABAD SERIES
idols in the suit property. There is evidence
to that effect reflected in the testimony of
witnesses in Civil Suit No.62 of 1936. In
their reply, the plaintiffs, therefore, say that
all issues arising between parties in the suit
ought to be tried and not summarily
determined under Order VII Rule 11 of the
Code. It is then pointed out in the reply that
in Paragraph Nos.22, 23, 24 and 25 of the
plaint, the suit property is included within
the scope of the term 'Temple' as defined in
Section 4(9) of the Act of 1983. The
religious character of the property in
dispute has already been declared by the
U.P. State Legislature and, therefore, there
is no question of applicability of the
provisions of the Act of 1991. It is also
emphasized that the competent Legislature
has also recognized the existence of the
Jyotirlinga
within
the
definition
of
'Temple', which is in existence beneath the
structure claimed by the revisionist as the
Gyanvapi Mosque.

The Order of the District Judge

13. The District Judge of Varanasi,
who has heard and decided the application
under Order VII Rule 11 of the Code
moved by the revisionist, has rejected it by
the order impugned and directed the suit to
be tried. A perusal of the impugned order
passed by the learned District Judge shows
that, like this Court, he too was oppressed
by parties pleading facts, law and evidence,
running into tomes, well beyond the settled
parameters of judging a plea under Order
VII Rule 11 of the Code. The parties seem
to have endeavoured almost to cajole the
learned District Judge into holding a trial
ahead of schedule in the garb of the
application under Order VII Rule 11 of the
Code.

14. This Court is gratified to note that
the learned District Judge, though took note
of all that was argued beyond the brief by
parties, stuck course and decided within the
permissible parameters of the motion under
Order VII Rule 11 of the Code. The learned
District
Judge
has
fundamentally
considered the bar to the suit pleaded by
the revisionist under the Act of 1991, the
Act of 1983 and the Act of 1995. From a
perusal of the application under Order VII
Rule 11 of the Code, no other plea, apart
from the bar to the suit under the three
statutes aforementioned, has apparently
been raised. The learned District Judge,
before embarking upon an examination of
the parties' case, set for himself the
parameters, after review of authority on the
point, by which he ought to judge the plea
under Order VII Rule 11 of the Code. He
then enumerated the specific pleas that
were raised to say that the suit is barred.
How the learned District Judge went about
his task, can be best expressed in his words,
carried in the impugned order, which read:

"Therefore, in view of the law
laid down in the above mentioned rulings,
it is clear that while deciding an application
under Order 7 Rule 11 of CPC, only the
averments of the plaint must be seen and
the defence made in the suit must not be
considered. However, if the suit does not
disclose a right to sue, the plaint can be
rejected under Order 7 Rule 11 C.P.C.

From
the
perusal
of
the
application
paper
no.35C,
the
main
contentions of defendant no.4 are as
follows:-

(a) The suit of the plaintiffs is
barred by Section 4 of the Places of
Worship (Special Provisions) Act, 1991
(Act no.42 of 1991);
7 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
719

(b) The suit of the plaintiffs is
barred by Section 85 of the Waqf Act, 1995
(Act no.43 of 1995);

(c) The suit of the plaintiffs is
barred by the Uttar Pradesh Sri Kashi
Vishwanath Temple Act, 1983 (Act no.29
of 1983)"

15. The learned District Judge
repelled the contention regarding the bar to
the suit under the Act of 1991, holding that
the plaintiffs are not seeking a declaration
about their ownership of the suit property
or a declaration that the suit property is a
temple. They are seeking a right to worship
Maa Sringar Gauri, Lord Ganesha, Lord
Hanuman and the other visible and
invisible Deities, that they had, according
to the plaint case, worshipped throughout
the year, until 1993, located on a part of the
suit property, that is to say, the backside of
the Gyanvapi Mosque, on the north-east
corner. It was also held that according to
the plaint case, the right has been restricted
under an administrative instruction of the
Government of Uttar Pradesh to once a
year after the year 1993 and is still being
exercised within that limitation.

16. The learned District Judge opined
that at the disputed place, even after 15th
August, 1947, to wit, the relevant date
under the Act of 1991, the Hindus have
worshipped Maa Sringar Gauri, Lord
Ganesha, Lord Hanuman and the other
Deities, visible and invisible, restricted or
unristricted till date. The learned Judge
held that the right to worship is not only a
fundamental right, but also a civil right,
that can be enforced by suit. The plaintiffs
do not, in substance, seek to alter the
character of the suit property, which the
defendants say is prohibited by the Act of
1991. They only seek to enforce their right
to worship, which they have done all along.
The learned District Judge, while turning
down the plea of a bar to the suit under the
Act of 1991, held in his concluding
remarks:

"Therefore, in the light of the law
laid down by Hon'ble Supreme Court of
India and Hon'ble Allahabad High Court, it
is clear that right to worship is a civil right
and any interference in it will raise a
dispute of civil nature and under Section 9
of C.P.C., Civil Court has jurisdiction to
decide such case involving such a dispute.
In the present case, the plaintiffs are
demanding right to worship Maa Sringar
Gauri, Lord Ganesha, Lord Hanuman at the
disputed property, therefore, Civil Court
has jurisdiction to decide this case.

Further,
according
to
the
pleadings of the plaintiffs, they were
worshipping Maa Sringar Gauri, Lord
Hanuman, Lord Ganesh at the disputed
place incessantly since a long time till
1993. After 1993, they were allowed to
worship the above mentioned Gods only
once in a year under the regulatory of State
of Uttar Pradesh. Thus, according to
plaintiffs, they worshipped Maa Sringar
Gauri, Lord Hanuman at the disputed place
regularly even after 15th August, 1947.
Therefore, The Places of Worship (Special
Provisions) Act, 1991 does not operate as
bar on the suit of the plaintiffs and the suit
of plaintiffs is not barred by Section 9 of
the Act."

17. The next statute, on the basis of
which bar of the suit was claimed by the
revisionist, is Section 85 of the Act of
1995. This plea is based on the exclusion of
the Civil Court's jurisdiction relating to
matters of a waqf property. The learned
Judge has taken note of the provisions of
Section 85, which bar the jurisdiction of a
civil court, revenue court of other authority
720 INDIAN LAW REPORTS ALLAHABAD SERIES
to determine any question, dispute or other
matter relating to any waqf, waqf property
or other matter, which is required by or
under the Act of 1995 to be determined by
a Tribunal constituted under the said Act.

18. The learned Judge has looked into
the provisions of the said Act to discern
what a waqf means, as defined there,
including a waqf by user. He has also
considered what is meant by a person
interested in a waqf as defined under
Section 3(k) of the Act of 1995. A wealth of
authority has been surveyed on the issue
about what suits would be barred under the
Act of 1995 and what kind of actions can
still be tried by Civil Court, the jurisdiction
of Civil Court being plenary. The learned
District Judge opined that it is only those
matters that are required by or under the
Act of 1995 to be determined by the
Tribunal,
where
the
Civil
Court's
jurisdiction would be ousted.

19. In substance, the learned Judge
held that the relief seeking the right to
worship the Deities of Maa Sringar Gauri,
Gods and other Goddesses, located in the
disputed property is not a relief covered by
Sections 33, 35, 47, 48, 51, 54, 61, 64, 67,
72 and 73 of the Act of 1995. These are not
matters required by or under the Act of
1995 to be decided by the Tribunal.
Therefore, the jurisdiction of the Civil
Court to try the suit was held unfettered by
the bar under Section 85 of the Act of 1995.

20. The last of the statutes, by dint of
which the suit was urged to be barred by law,
on behalf of the revisionist, is the Act of 1983.
Sections 4(5), 4(9), 5 and 6 of the Act of 1983
were taken into consideration by the learned
Judge to hold that the suit in no way can be
said to be barred by the Act of 1983. It was,
therefore, held by the learned District Judge
that none of the three statutes bar the trial of
the suit, rendering the plaint liable to be
rejected under Order VII Rule 11 of the Code.

A remark by the Court and a mention
of learned Counsel who appeared at the
hearing

21. It must be mentioned as a prelude to
the disposition of the contentions of parties
before this Court that a reading of the order
passed by the learned District Judge shows
that no other plea apart from the bar under the
three statutes, above mentioned, was urged in
aid of the application under Order VII Rule 11
of the Code seeking to reject the plaint.

22. Heard Mr. S.F.A. Naqvi, learned
Senior Advocate assisted by Mr. Syed Ahmad
Faizan, Ms. Fatma Anjum, Mr. Zaheer Asghar
and Mr. Mahmood Alam, learned Counsel
appearing for the revisionist, Mr. Hari Shankar
Jain, Mr. Vishnu Shankar Jain, Ms. Mani
Munjal,
Mr.
Parth
Yadav
(via
video
conferencing) along with Mr. Prabhash
Pandey and Mr. Pradeep Sharma, learned
Counsel appearing on behalf of the plaintiffrespondents nos. 2 to 5, Mr. Saurabh Tiwari
along with Mr. Arya Suman Pandey, learned
Counsel appearing for plaintiff-respondent
No.1,
Mr.
M.C.
Chaturvedi,
learned
Additional Advocate General assisted by Mr.
Bipin Bihari Pandey, learned Chief Standing
Counsel-V along with Mr. Rananjay Singh,
Additional Chief Standing Counsel, Mr.
Shrawan Kumar Dubey, Mr. Girijesh Kumar
Tripathi and Mr. Hare Ram Tripathi, learned
Standing Counsel appearing on behalf of
defendant-respondents Nos. 6, 7 and 8 and
Mr.
Vineet
Sankalp,
learned
Counsel
appearing on behalf of respondent No.9, the
Board of Trustees.

Submissions
on
behalf
of
the
revisionist
7 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
721

23. It is submitted by Mr. S.F.A.
Naqvi, learned Senior Advocate that the
suit is barred by Section 9 of the Code, as
the provisions of the Act of 1991 carry an
express bar to the maintainability of a suit,
that can effect altering the character of
religious places of worship as existing on
15th August, 1947. He submits that the
present suit precisely attempts to do that. It
seems to seek altering the character of an
existing mosque on the date of the suit into
a Hindu temple. It is urged that the learned
Trial Judge was duty bound to examine if
the suit was maintainable, in view of the
provisions of Sections 3, 4 and 7 of the Act
of 1991. It is submitted by Mr. Naqvi that
under Section 9 of the Code, the
jurisdiction of Civil Court with regard to a
particular kind of suit can be excluded, if
there is an express provision barring the
Court's jurisdiction or the bar is inferable
by necessary implication. It is urged that all
suits of civil nature are triable by the Civil
Court, except those of which cognizance is
barred expressly or impliedly. Here, the suit
is expressly barred by the Act of 1991,
according to Mr. Naqvi. He has referred to
the provision of Rule 11(d) of Order VII of
the Code to say that the provision affords
the defendant a remedy to assail the
maintainability of the suit at the threshold.
It is emphasized that the law does not
ostensibly contemplate any kind of a stage
at which the bar may be pleaded. It can be
raised at any stage. Rule 11 of Order VII
casts a duty upon the Court to examine if
the suit is worth trial and to reject the
plaint, if it finds that the suit is barred
under any of the clauses of Rule 11 of
Order VII of the Code. In aid of his
submissions on this point, Mr. Naqvi has
placed reliance upon the decision of the
Supreme Court in Sopan Sukhdeo Sable
and
others
v.
Assistant
Charity
Commissioner and others6. It is argued
that the Mosque and portions underneath
were always there and never disturbed. It
has
been
in
existence
since
time
immemorial. It is pointed out that on 15th
August, 1947, the Gyanvapi Mosque and
all that was underneath it along with
appurtenant land was in existence. Hence,
the suit is barred by Sections 3, 4 and 7 of
the Act of 1991. It is next submitted that if
a suit is barred under any provision of the
law, Order VII Rule 11(d) of the Code
makes it imperative for the Courts to
exercise jurisdiction and reject the plaint.
This the Trial Court has failed to do,
according to Mr. Naqvi. He has drawn the
Court's attention to the objects and reasons
of the Act of 1991 and submitted that the
statute was enacted with the purpose of
thwarting all attempts at converting the
character of religious places as existing on
August the 15th, 1947.

24.

Learned
Senior
Advocate
appearing for the revisionist particularly
emphasizes that, in judging an application
under Order VII Rule 11 of the Code,
evidence, howsoever overwhelming on
either side, cannot be looked into. The
issues that may arise if the suit were to
proceed to trial would be beyond the scope
of proceedings at this stage. He submits
that the provision under Order VII Rule 11
is a power available to the Court and a
remedy to the defendant, where the Court
can summarily terminate action at the
threshold, without holding a trial, if
satisfied
that
the
action
should
be
terminated on any of the grounds carried in
Rule 11 of Order VII. It is argued that
Order VII Rule 11(d) forbids the trial of a
suit that is barred by law. The law includes
statutory and customary law, including
Judge-made law. A reference in this
connection has been made to the decision
of the Supreme Court in Mohd. Aslam
722 INDIAN LAW REPORTS ALLAHABAD SERIES
alias Bhure v. Union of India and
others7, where the writ petition was
disposed of, bearing in mind the assurance
extended on 24 points, both by the Central
and the State Government, to take all
necessary steps for the safeguarding all
religious places, including the Gyanvapi
Mosque in Varanasi. Referring to the
provisions of the Act of 1983, its subject
and the definition of Temple there on one
hand and the meaning of a Waqf
enumerated in Section 3(r) of the Act of
1995 on the other, Mr. Naqvi submits that
Waqf property of the Gyanvapi Mosque is
separate from the property of Sri Kashi
Vishwanath Temple Trust. He emphasized
that this fact is clearly established by the
deed of exchange, Paper No. 224C, that
was executed between the U.P. Sunni
Central Board of Waqf and the State of U.P.
represented by the Collector. The Board of
Trustees of Sri Kashi Vishwanath Temple
and the State of U.P. desired that a Police
Control Room should be established for the
security of the "disputed property" as Mr.
Naqvi describes. The Board of Trustees of
the Temple and the Government of U.P.
discussed the matter with the U.P. Sunni
Central Board of Waqf and requested them
to give some land on lease or a license for
the purpose in the year 1993-94. The U.P.
Sunni Central Board of Waqf gave some
land to the Government of U.P. on license
for the purpose of establishment of a Police
Control Room. Later on, the State of U.P.
represented by the Chief Executive Officer
of the Board of Trustees of Sri Kashi
Vishwanath Temple and the Committee of
Management, Anjuman Intezamia Masajid,
Varanasi (the revisionist) in the year 2021,
amicably exchanged land, earlier licenced.
These facts are evident from Paper Nos.
227C and 230C. It is pointed out that the
aforesaid dealing in the land and its
disposition by the Government of U.P. as
well as the Board of Trustees of Sri Kashi
Vishwanath Temple show that both of them
consider the suit property as waqf property.
It is for the said reason that in the first
instance, the land was taken on a license by
the Government from the Waqf Board in
the year 1993-94, and, later on, dealt with
through a deed of exchange in the year
2021.

25. It has also been urged by the
learned Senior Advocate appearing for the
revisionist that the present suit and its
ancillary proceedings are pending in three
different Courts, to wit, the learned District
Judge, who has seisin of the suit, this
Court, that has, before it, Matters under
Article 227 Nos. 3341 of 2017, 1521 of
2020, 3562 of 2021 and 3844 of 2021,
including this revision, and the Supreme
Court. The matter which is engaging the
attention of the Supreme Court is Petition
for Special Leave to Appeal (C) No. 9388
of 2022 arising out of an earlier order
passed in the suit and approved by this
Court in a Matter under Article 227 of the
Constitution. Learned Senior Advocate
submits that doing all this is nothing but
wastage of precious judicial time at
different levels, which ought not to be
permitted. Mr. Naqvi, during the course of
his submissions, has reverted to the point,
time and again, that the suit cannot
proceed, bearing in mind the provisions of
the Act of 1991, its objects and whatever it
prohibits. He submits that office of the suit
is ultimately to alter the religious character
of Gyanvapi Mosque into a temple, which
is within the prohibitive clause carried in
the Act of 1991. He has also, during the
course his submissions, said that the suit
does not disclose a cause of action and it is
a
product
of
"clever
drafting",
an
expression that has resounded during the
long hearing of this revision. The learned
7 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
723
Senior Advocate says that in the garb of
asserting their right to worship, the
dominant purpose of the suit is to convert
the character of the existing Gyanvapi
Mosque into a temple, which the Act of
1991 forbids. The dispute in the form raised
through the device of clever drafting is to
create the illusion of a cause of action,
which is forbidden by law and does not
exist.

26. Learned Senior Advocate for the
revisionist has, for the proposition that a
suit that is barred by law should be nipped
in the bud, relied upon a decision of the
Supreme Court in Abdul Gafur and
another v. State of Uttarakhand and
others8. He has also emphasized that the
expression "law" in Clause (d) of Rule 11 of
Order VII of the Code includes not only
statutes, but also judicial precedents. For the
said proposition, the learned Senior Advocate
has placed reliance on a decision of the
Supreme Court in Bhargavi Constructions
and another v. Kothakapu Muthyam
Reddy and others9. The learned Senior
Advocate has further placed reliance upon the
decision of the Supreme Court in Sree Surya
Developers and Promoters v. N. Sailesh
Prasad and others10. To buttress his
contention that the present suit is a product of
clever drafting, whereby a non-existent cause
of action has been portrayed as a real one, an
illusion for which this Court must not fall and
terminate the action, the revisionist has
further referred to T. Arivandandam v. T.V.
Satyapal & another11 and Madanuri Sri
Rama Chandra Murthy v. Syed Jalal12.

Submissions on behalf of plaintiffrespondents Nos. 2 to 5

27. Mr. Hari Shankar Jain, Mr. Vishnu
Shankar Jain, Ms. Mani Munjal and Mr.
Parth Yadav along with Mr. Prabhash
Pandey and Mr. Pradeep Sharma, learned
Counsel appearing on behalf of plaintiffs
nos.