# M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS

- **Citation:** [2019] 18 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2019-11-09
- **Case number:** Civil Appeal Nos. 10866-10867 of 2010
- **Bench:** Ranjan Gogoi, S. A. Bobde, Dr. Dhananjaya Y Chandrachud, Ashok Bhushan, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-siddiq-d-thr-lrs-v-mahant-suresh-das-ors-33694
- **Pages:** 867

## Headnote

Religion / Religious Structure - Ayodhya Matter - Ram
Janmabhumi - Babri Masjid dispute - Five suits instituted between
1950 and 1989, centering around dispute of ownership between
Hindu community and Muslim community over piece of land
admeasuring 1500 square yards in the town of Ayodhya - Hindu
community claimed the disputed site to be the birth-place of Lord
Ram, referring it as Ram Janmabhumi or Ram Janmasthan and
asserting that there existed at the disputed site an ancient temple
dedicated to Lord Ram, which was demolished by Mughal Emperor
Babur - Muslim community however claimed it as the site of the
Babri Masjid (mosque) built by or at the behest of Babur on vacant
land - Suit 1 was filed by a worshipper for enforcement of his right
to worship Lord Ram at the Janmabhumi - Suit 2 seeking reliefs
similar to those in Suit 1 was however subsequently withdrawn -
Suit 3 filed by Nirmohi Akhara (representing a religious sect amongst
Hindus) was for handing over the management and charge of the
Janmabhumi temple to it - Suit 4 filed by Sunni Central Waqf Board
was for a declaration that the entirety of the disputed site, including
Babri Masjid and the surrounding graveyard, is a public mosque
and for a decree for possession - Suit 5 was filed by the deity of
Lord Ram and the Janmasthan (both of whom were asserted to be
juridical persons) through a next friend impleaded as a third plaintiff
for a declaration that the entire premises constitute Ram Janmabhumi
and for an injunction against interference in construction of new
temple after demolition of the existing building - All the suits were
transferred by the High Court to itself - In a split 2:1 verdict, the
High Court held that the Hindu and Muslim parties were joint holders
of the disputed premises - Each of them was held entitled to one
third of the disputed property - Nirmohi Akhara was granted the
remaining one third - A preliminary decree to that effect was passed
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in the suit brought by the idol and the birth-place of Lord Ram
through the next friend - On appeal, held: Disputed site was one
composite whole - On balance of probabilities, clear evidence to
indicate that worship by Hindus in the outer courtyard of the premises
continued unimpeded in spite of the setting up of a grill-brick wall
in 1857 by British colonial administration - Hindus established a
clear case of a possessory title to the outside courtyard by virtue of
long, continued and unimpeded worship at the Ramchabutra and
other objects of religious significance - As regards the inner
courtyard, evidence on preponderance of probabilities to establish
worship by the Hindus prior to annexation of Oudh by the British
in 1857 - Muslims offered no evidence to indicate that they were in
exclusive possession of the inner structure prior to 1857 - Sunni
Central Waqf Board did not establish its case of dedication by user
or alternate plea of adverse possession - Existence of the structure
of a mosque until 6 December 1992 however does not admit any
contestation - Submission that the mosque did not accord with
Islamic tenets, also not tenable - Muslims have been wrongly
deprived of a mosque which had been constructed well over 450
years ago - While a decree must ensue in Suit 5, Suit 4 (instituted
by Sunni Central Waqf Board) must also be partly decreed by
allotment of alternate land to the Muslims for construction of a
mosque and associated activities - Allotment of land to the Muslims
is necessary because though on a balance of probabilities, evidence
in respect of possessory claim of the Hindus to the composite whole
of the disputed property stands on a better footing than the evidence
adduced by the Muslims, the Muslims were dispossessed upon the
desecration of the mosque in December 1949 which was ultimately
destroyed on 6 December 1992 - Justice would not prevail if the
Court were to overlook the entitlement of the Muslims - Direction
issued that land a

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[2019] 18 S.C.R. 1
1
M SIDDIQ (D) THR LRS
V.
MAHANT SURESH DAS & ORS
(Civil Appeal Nos. 10866-10867 of 2010)
NOVEMBER 09, 2019
[RANJAN GOGOI, CJI, S. A. BOBDE,
DR. DHANANJAYA Y CHANDRACHUD,
ASHOK BHUSHAN AND S. ABDUL NAZEER, JJ.]
Religion / Religious Structure - Ayodhya Matter - Ram
Janmabhumi - Babri Masjid dispute - Five suits instituted between
1950 and 1989, centering around dispute of ownership between
Hindu community and Muslim community over piece of land
admeasuring 1500 square yards in the town of Ayodhya - Hindu
community claimed the disputed site to be the birth-place of Lord
Ram, referring it as Ram Janmabhumi or Ram Janmasthan and
asserting that there existed at the disputed site an ancient temple
dedicated to Lord Ram, which was demolished by Mughal Emperor
Babur - Muslim community however claimed it as the site of the
Babri Masjid (mosque) built by or at the behest of Babur on vacant
land - Suit 1 was filed by a worshipper for enforcement of his right
to worship Lord Ram at the Janmabhumi - Suit 2 seeking reliefs
similar to those in Suit 1 was however subsequently withdrawn -
Suit 3 filed by Nirmohi Akhara (representing a religious sect amongst
Hindus) was for handing over the management and charge of the
Janmabhumi temple to it - Suit 4 filed by Sunni Central Waqf Board
was for a declaration that the entirety of the disputed site, including
Babri Masjid and the surrounding graveyard, is a public mosque
and for a decree for possession - Suit 5 was filed by the deity of
Lord Ram and the Janmasthan (both of whom were asserted to be
juridical persons) through a next friend impleaded as a third plaintiff
for a declaration that the entire premises constitute Ram Janmabhumi
and for an injunction against interference in construction of new
temple after demolition of the existing building - All the suits were
transferred by the High Court to itself - In a split 2:1 verdict, the
High Court held that the Hindu and Muslim parties were joint holders
of the disputed premises - Each of them was held entitled to one
third of the disputed property - Nirmohi Akhara was granted the
remaining one third - A preliminary decree to that effect was passed
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in the suit brought by the idol and the birth-place of Lord Ram
through the next friend - On appeal, held: Disputed site was one
composite whole - On balance of probabilities, clear evidence to
indicate that worship by Hindus in the outer courtyard of the premises
continued unimpeded in spite of the setting up of a grill-brick wall
in 1857 by British colonial administration - Hindus established a
clear case of a possessory title to the outside courtyard by virtue of
long, continued and unimpeded worship at the Ramchabutra and
other objects of religious significance - As regards the inner
courtyard, evidence on preponderance of probabilities to establish
worship by the Hindus prior to annexation of Oudh by the British
in 1857 - Muslims offered no evidence to indicate that they were in
exclusive possession of the inner structure prior to 1857 - Sunni
Central Waqf Board did not establish its case of dedication by user
or alternate plea of adverse possession - Existence of the structure
of a mosque until 6 December 1992 however does not admit any
contestation - Submission that the mosque did not accord with
Islamic tenets, also not tenable - Muslims have been wrongly
deprived of a mosque which had been constructed well over 450
years ago - While a decree must ensue in Suit 5, Suit 4 (instituted
by Sunni Central Waqf Board) must also be partly decreed by
allotment of alternate land to the Muslims for construction of a
mosque and associated activities - Allotment of land to the Muslims
is necessary because though on a balance of probabilities, evidence
in respect of possessory claim of the Hindus to the composite whole
of the disputed property stands on a better footing than the evidence
adduced by the Muslims, the Muslims were dispossessed upon the
desecration of the mosque in December 1949 which was ultimately
destroyed on 6 December 1992 - Justice would not prevail if the
Court were to overlook the entitlement of the Muslims - Direction
issued that land admeasuring 5 acres be allotted to Sunni Central
Waqf Board either by the Central Government out of the acquired
land or by Government of Uttar Pradesh within the city of Ayodhya
- This exercise, and the consequent handing over of the land to the
Sunni Central Waqf Board, to be conducted simultaneously with
the handing over of the disputed site comprising of the inner and
outer courtyards as a consequence of the decree in Suit 5 - Suit 4
shall stand decreed in the above terms - Central Government to
frame scheme in exercise of powers conferred upon it by ss.6 and 7
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M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS
(of the Acquisition of Certain Area at Ayodhya Act 1993) to set up a
trust or any other appropriate mechanism to whom the land would
be handed over in terms of the decree in Suit 5 - Suit 3 filed by
Nirmohi Akhara barred by limitation and Nirmohi Akhara's claim
to be a shebait stands rejected - However, having regard to the
historical presence of Nirmohi Akhara at the disputed site and their
role, direction issued that in framing the scheme, an appropriate
role in the management would be assigned to the Nirmohi Akhara -
Right of the plaintiff in Suit 1 to worship at the disputed property
affirmed subject to restrictions by relevant authorities with respect
to maintenance of peace and order and performance of orderly
worship - Acquisition of Certain Area at Ayodhya Act 1993 - ss.6
and 7 - Constitution of India, 1950 - Art. 142.
Partition - Ayodhya Matter - Ram Janmabhumi - Babri Masjid
dispute - High Court held that the Hindu and Muslim parties were
joint holders of the disputed premises - Each of them was held
entitled to one third of the disputed property - Nirmohi Akhara was
granted the remaining one third - A preliminary decree to that effect
was passed in the suit brought by the idol and the birth-place of
Lord Ram through the next friend - Decree for partition by High
Court - Legality - Held: Three-way bifurcation by the High Court
was legally unsustainable - High Court was not seized of a suit for
partition - High Court adopted a path which was not open to it and
granted reliefs which were not the subject matter of the prayers in
the suits - In the process of doing so, it proceeded to assume the
jurisdiction of a civil court in a suit for partition, which the suits
before it were not - Order VII Rule 7 of CPC does not entitle the
court in a civil trial to embark upon the exercise of recasting virtually
the frame of a suit, which was undertaken by the High Court -
There was no basis in the pleadings before the High Court and
certainly no warrant in the reliefs which were claimed to direct a
division of the land in the manner that a court would do in a suit for
partition - High Court completely erred in granting relief which lay
outside the ambit of the pleadings and the cases set up by the
plaintiffs in Suit 3 (filed by Nirmohi Akhara), Suit 4 (filed by Sunni
Central Waqf Board) and Suit 5 (brought by the idol and the birthplace of Lord Ram through the next friend) - Further, having come
to the conclusion that Suit 3 and Suit 4 were barred by limitation,
the High Court proceeded to grant relief in Suit 5 to the plaintiffs in
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Suits 3 and 4 - This defies logic and is contrary to settled principles
of law - Moreover, the claim by Nirmohi Akhara was as a shebait
who claimed a decree for management and charge - On its own
case, Nirmohi Akhara could not have been granted an independent
share of the land - Even as a matter of maintaining public peace
and tranquillity, the solution which commended itself to the High
Court is not feasible - The disputed site admeasures all of 1500
square yards - Dividing the land will not subserve the interest of
either of the parties or secure a lasting sense of peace and tranquillity
- CPC - Or.VII, r.7.
Places of Worship (Special Provisions) Act 1991 - Object
and Purpose - Held: The Act prohibits the conversion of place of
worship and imposes a positive obligation to maintain the religious
character of every place of worship as it existed on 15 August 1947
- The Places of Worship Act was enacted to secure the fundamental
values of the Constitution - Tolerance, respect and acceptance of
the equality of all religious faiths is a precept of fraternity -
Parliament determined that independence from colonial rule
furnishes a constitutional basis for healing the injustices of the
past.
Limitation - Ayodhya Matter - Ram Janmabhumi - Babri
Masjid dispute - Suit filed by Nirmohi Akhara (representing a
religious sect amongst Hindus) for handing over the management
and charge of the Janmabhumi temple to it - Maintainability of the
suit - Held: The City Magistrate had attached the disputed property
by order dated 29th December, 1949 u/s.145 CrPC, 1898 - The suit
was filed for restoration of management and charge so as to enable
the Nirmohi Akhara to have the benefit of the usufruct in discharge
of its obligations towards the deity - It was not a suit for possession
- Hence, neither Art.142 nor Art.144 of Limitation Act, 1908 has
any application - The suit was governed by provisions of the
residuary article, Art.120 - Period of limitation u/Art.120 is six years
- Nirmohi Akhara claimed that the cause of action arose on 5th
January, 1950 when the receiver appointed by the Magistrate took
charge of the property and they were denied charge and management
of the temple - Since the suit was instituted on 17th December, 1959
(i.e. after more than nine years) it was outside the prescribed period
of limitation and was thus barred - Alternate submission on behalf
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M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS
of Nirmohi Akhara by virtue of s.23 of the Limitation Act, 1908 that
denial or obstruction of its' shebait rights of management and charge
was a continuing wrong, also not tenable - Limitation Act, 1908 -
Art. 120 - CrPC,1898 - s.145.
Limitation - Ayodhya Matter - Ram Janmabhumi - Babri
Masjid dispute - Maintainability of suit - Suit filed by Sunni Central
Waqf Board for declaration that entirety of the disputed site,
including Babri Masjid and the surrounding graveyard, is a public
mosque and for a decree for possession - Whether suit barred by
limitation - Held: The grievance of the plaintiffs was that they were
in possession and had offered prayers till 23rd December, 1949 on
which date it was alleged that the mosque was desecrated - By
pleading specifically that the plaintiffs were in possession and had
offered prayers until a particular date, the sequitur is that after
that date, the plaintiffs ceased to be in possession - The suit in the
circumstances was a suit for possession of immoveable property
falling in the description provided by the first column of Art.142 of
the Limitation Act, 1908; and having been instituted on 18th
December, 1949, i.e. within a period of twelve years of the date of
alleged dispossession on 23rd December, 1949, it was within
limitation - Even if the plaintiffs were not in exclusive or settled
possession of the inner courtyard of the disputed site, the suit would
fall within the residuary Art. 144 in which event also, the suit would
be within limitation - Limitation Act, 1908 - Arts. 142 and 144.
Limitation - Ayodhya Matter - Ram Janmabhumi - Babri
Masjid dispute - Maintainability of the suit - Suit filed by deity of
Lord Ram and Janmasthan (both of whom were asserted to be
juridical persons) through a next friend impleaded as a third plaintiff
for declaration that the entire premises constitute Ram Janmabhumi
and for injunction against interference in construction of new temple
after demolition of the existing building - Whether suit barred by
limitation - Held: In three earlier suits centering around the dispute,
neither of the plaintiffs in the instant suit were impleaded - Case of
plaintiffs that institution of the instant suit was necessitated as a
result of the deity not being a party to the earlier suits, and on the
apprehension that in those suits, personal interests of the leading
parties were being pursued without protecting the independent needs
and concerns of the deity of Lord Ram, is well and truly borne out
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by the proceedings - Cause of action in the instant suit cannot be
considered to be barred by limitation on proper construction of the
basis of cause of action for institution of the suit - Suit at the behest
of the first plaintiff (deity of Lord Ram) who is a juristic person, is
within limitation and maintainable - The third plaintiff (next friend)
is entitled to represent the first plaintiff.
Limitation Act, 1908 - Art. 142 - Requirements to bring a suit
within purview of Art.142 - The suit must be for possession of
immoveable property; the plaintiff must establish having been in
possession of the property; and the plaintiff should have been
dispossessed or must have discontinued possession while in
possession of the property - For Art.142 to apply, these requirements
must cumulatively be established.
Ayodhya Matter - Ram Janmabhumi - Babri Masjid dispute
- Suit filed by a worshipper for enforcement of his right to worship
Lord Ram at the Janmabhumi - Maintainability of the suit, on death
of the original plaintiff - Held: The pleadings indicate that the right
asserted was not a private right, but a right in common with and for
the benefit of other Hindu devotees to pray at the disputed property
- The right claimed was that of the "Hindu public" to worship at
the disputed property without undue interference - The right asserted
on behalf of the larger "Hindu public" does not stand extinguished
upon the death of the original plaintiff and can be pursued by his
son who is also a worshipper.
Doctrines / Principles - Doctrine of res judicata - Estoppel -
Ayodhya Matter - Ram Janmabhumi - Babri Masjid dispute - An
earlier suit filed in 1885 by one Mahant Raghubhar Das for
permission to construct a temple on the Chabutra, had been dismissed
- Whether the decision operated as res judicata and brought about
a bar on filing of subsequent suits centering on the dispute, which
gave rise to the appeals in question - Held: No merit in the
contention - The parties were distinct - Claim in the earlier suit
was distinct - Basis of the claim was not which formed the subject
matter of subsequent suits - Similarly, no merit in submission based
on doctrine of issue estoppel or estoppel by record.
Religion / Religious structure - Ayodhya Matter - Ram
Janmabhumi - Babri Masjid dispute - Idol of Lord Ram - Deity -
Shebaitship - Claim of Nirmohi Akhara as shebaits - Tenability -
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Held: A claim of rights as a de facto shebait must be substantiated
with proof that person is in exclusive possession of the trust property
and exercises complete control over the right of management of the
properties without any let or hindrance from any quarters
whatsoever - Though it cannot and has not been denied in the
present proceedings that Nirmohi Akhara existed at the disputed
site, the claim of Nirmohi Akhara, taken at the highest is that of an
intermittent exercise of certain management rights - Their rights
were peripheral, usually involving the assistance of pilgrims, and
were constantly contested - A stray or intermittent exercise of
management rights does not confer upon a claimant the position in
law of a de facto shebait - It cannot be said that the acts of Nirmohi
Akhara satisfy the legal standard of management and charge that
is exclusive, uninterrupted and continuous over a sufficient period
of time - Despite their undisputed presence at the disputed site,
Nirmohi Akhara is not a shebait for the idols of Lord Ram at the
disputed site.
Religion / Religious structure - Ayodhya Matter - Ram
Janmabhumi - Babri Masjid dispute - Idol of Lord Ram - Deity -
Shebait - Absence of lawfully recognised shebait - Effect - Held:
In such a case, it is open for an interested worshipper to sue on
behalf of the deity.
Religion / Religious structure - Hindu temple - Idol - Deity -
Shebait - Distinction between shebait and pujari - Held: A shebait
is vested with the authority to manage the properties of the deity
and ensure the fulfilment of the purpose for which the property was
dedicated - As a necessary adjunct of this managerial role, a shebait
may hire pujaris for the performance of worship - This does not
confer upon the appointed pujaris the status of a shebait - As
appointees of the shebait, they are liable to be removed from office
and cannot claim a right to continue in office.
Religion / Religious structure - Hindu temple - Debutter
property - Shebait - de facto shebait and de jure shebait - Held:
Where a person claims to be a shebait despite lack of a legal title,
relevant enquiry before the Court is whether the person was in actual
possession of the debutter property and was exercising all rights of
a shebait - Paramount interest in protection of the debutter property
underlines the recognition of a de facto shebait.
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Religion / Religious structure - Hindu temple - Debutter
property to Idol - Title - Independent claim of shebait - If tenable
- Held: Though the shebait may have an interest in the usufruct of
the debutter property, the de facto shebait is not vested with an
independent right of title over the debutter property - Where a de
facto shebait raises an independent claim to the debutter property
to the idol, it assumes the position of a trespasser and no action at
its behest is maintainable.
Religion / Religious structure - Hindu temple - Idol - Deity -
Shebait acting adverse to interests of the deity - Suit by worshipper
- Held: Where a shebait acts adverse to the interests of the deity, a
worshipper can, as next friend of the deity, sue on behalf of the
deity itself, provided that if the next friend's bona fides are contested,
the court must scrutinise the intentions and capabilities of the next
friend to adequately represent the deity - The court may do so of its
own accord, ex debito justitae.
Religion / Religious structure - Deity - Juristic personality -
Ayodhya matter - Ram Janmabhumi - Babri Masjid dispute - Hindu
idol - Juristic personality of the deity of Lord Ram ("Bhagwan Shri
Ram Virajman") - Held: For devotees of Lord Ram, the deity is
embodiment of Lord Ram and constitutes the resident deity of Ram
Janmabhumi - Oral and documentary evidence shows that Hindu
devotees of Lord Ram hold a genuine, long standing and profound
belief in the religious merit attained by offering prayer to Lord Ram
at the site they believe to be his birth-place - Travel logs in the
eighteenth century and early nineteenth century record prevalence
of Hindu worship at the disputed site - Factum of Hindu belief in
the sanctity of the disputed site established by evidence - The deity
has been the object of worship for several hundred years and the
underlying purpose of continued worship is apparent even absent
any express dedication or trust - Existence of the idol is merely a
question of form, or corpus, and legal personality of the deity
"Bhagwan Sri Ram Virajman" is not dependent on the continued
existence of the idol - Jurisprudence - Juristic Personality.
Religion / Religious structure - Birth-place of deity - Juristic
personality - Ayodhya matter - Ram Janmabhumi - Babri Masjid
dispute - Birth-place of Lord Ram 'Asthan Sri Ram Janam Bhumi' -
Juristic personality - Held: Recognition of 'Asthan Sri Ram Janam
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Bhumi' as a juristic person would result in the extinguishment of all
competing proprietary claims to the land in question - This conferral
of 'absolute title' (resulting from the conferral of legal personality
on land) would in truth render the very concept of title meaningless
- Moreover, the extinguishing of competing claims would arise not
by virtue of settled legal principles, but purely on the basis of the
faith and belief of the devotees - This cannot be countenanced in
law - Jurisprudence - Juristic Personality.
Evidence - Title to land - Ayodhya matter - Ram Janmabhumi
- Babri Masjid dispute - Report of Archaeological Survey of India
(ASI) - Evidentiary value - Held: Title to the land must be decided
on settled legal principles and applying evidentiary standards which
govern a civil trial - A finding of title cannot be based in law on the
archaeological findings arrived at by ASI - On facts, conclusion in
the ASI report about remains of an underlying structure of Hindu
religious origin, symbolic of temple architecture of the twelfth
century A.D., must be read contextually with caveats.
Evidence - Historical records - Travelogues - Gazetteers -
Ayodhya matter - Ram Janmabhumi - Babri Masjid dispute - Rival
claims to possessory title - Historical records of travellers -
Relevance of - Held: Accounts of the travellers must be read with
circumspection - Their personal observations must carefully be
sifted from hearsay - matters of legend and lore - Consulting their
accounts on matters of public history is distinct from evidence on a
matter of title - Contents of gazetteers can at best provide
corroborative material to evidence which emerges from the record
- The court must be circumspect in drawing negative inferences
from what a traveller may not have seen or observed - Title cannot
be established on the basis of faith and belief.
Religion / Religious structure - Ayodhya Matter - Ram
Janmabhumi - Babri Masjid dispute - Birth-place of Lord Ram -
Faith and belief of Hindu devotees - Whether the disputed structure
is birth-place of Lord Ram according to the faith and belief of the
Hindu devotees - Held (per addenda): Faith and belief of Hindus
since prior to construction of Mosque and subsequent thereto has
always been that Janmasthan of Lord Ram is the place where Babri
Mosque has been constructed which faith and belief is proved by
documentary and oral evidence.
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Acts of State - Change in sovereignty - Effect - Held:
Municipal courts of the new sovereign will not enforce the legal
rights of parties existing under the former sovereign absent an
express or implied recognition by the new sovereign of such legal
rights - Municipal courts of the new sovereign can embark upon
an inquiry as to whether the new sovereign has expressly or impliedly
recognised the rights and liabilities existing under a former regime
- However, burden to establish the existence and recognition of
such rights and liabilities remains on the party claiming them.
Law and Justice - Historical rights and wrongs - Role of
Court - Held: Courts of today cannot take cognisance of historical
rights and wrongs unless it is shown that their legal consequences
are enforceable in the present - The law cannot be used as a device
to reach back in time and provide a legal remedy to every person
who disagrees with the course which history has taken.
Evidence - Civil Trial - Proof - Preponderance of
probabilities - Held: Court in civil trials apply standard of proof
governed by preponderance of probabilities - Proof of a fact
depends upon probability of its existence - Findings of the court
must be based on: (i) test of a prudent person, who acts under the
supposition that a fact exists; and (ii) in the context and circumstances
of a particular case.
Religion / Religious structure - Place of worship - Title or
ownership of composite place of worship - Held: In absence of
historical records with respect to ownership or title, the court has to
determine the nature and use of the disputed premises as a whole
by either of the parties - In determining the nature of use, the court
has to factor in the length and extent of use.
Religion / Religious structure - Mosque - Characteristics of
mosque in Islamic law - Judicial review - Held: It would be
inappropriate for Supreme Court to enter upon an area of theology
and to assume the role of an interpreter of the "Hadees" - True test
is whether those who believe and worship have faith in religious
efficacy of the place where they pray - Courts must steer clear from
choosing one among the possible interpretations of theological
doctrine and must accept the faith and belief of the worshipper -
Any attempt to lead the court to interpret religious doctrine in an
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absolute and extreme form and question the faith of worshippers
must be firmly rejected - Nothing would be as destructive of the
values underlying Art.25 of the Constitution - Constitution of India,
1950 - Art.25.
Jurisprudence - Juristic personality - Conferral of - Effect
- Held: It does not automatically grant an ensemble of legal rights
- The contours of juristic personality i.e. the rights and liabilities
that attach upon the object conferred with juristic personality, must
be determined keeping in mind the specific reasons for which such
legal personality was conferred.
Jurisprudence - Juristic Personality - Idols - Hindu idol and
divinity - Contours of legal personality ascribed to a Hindu idol -
Held: Conferral of legal personality on a Hindu idol is not conferral
of legal personality on divinity itself, which in Hinduism is often
understood as the 'Supreme Being' - The Supreme Being has no
physical presence for it is understood to be omnipresent - the very
ground of being itself.
Jurisprudence - Juristic Personality - Idols - Legal
characteristics of Hindu idols and the properties associated with
them - Held: To provide courts with a conceptual framework within
which they could analyse and practically adjudicate upon disputes
involving competing claims over endowed properties, courts
recognised the legal personality of the Hindu idol - It was a legal
innovation necessitated by historical circumstances, the gap in the
existing law and by considerations of convenience - It had the added
advantage of conferring legal personality on an object that within
Hinduism had long been subject to personification - Legal
personality of the idol, and the rights of the idol over the property
endowed and the offerings of devotees, are guarded by the law to
protect the endowment against maladministration by the human
agencies entrusted with the day to day management of the idol.
Constitution of India, 1950 - Art. 142 - Scope under - Held:
Supreme Court in exercise of its powers u/Art.142 must ensure that
a wrong committed must be remedied - This power is not limitless -
Power u/Art.142 authorises the court to pass orders to secure
complete justice in the case before it - Art.142 embodies both the
notion of justice, equity and good conscience as well as a
supplementary power to the court to effect complete justice.
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Constitution of India, 1950 - Art. 372 - Change of legal
regime between British sovereign and the Republic of India - Line
of continuity - Art. 372 embodies the legal continuity between the
British sovereign and independent India.
Constitution of India, 1950 - Equality - Rule of law - Held:
Under the Constitution, citizens of all faiths, beliefs and creeds
seeking divine provenance are both subject to the law and equal
before the law - The Constitution does not make a distinction
between the faith and belief of one religion and another - All forms
of belief, worship and prayer are equal.
Constitution of India, 1950 - Equality and Secularism - Held:
The Constitution postulates the equality of all faiths - Tolerance
and mutual co-existence nourish the secular commitment of our
nation and its people.
CrPC, 1898 - s.145 - Nature and scope of proceedings
u/s.145 - Held: s.145 proceedings do not purport to decide a party's
title or right to possession of the land - Property held in attachment
in proceedings u/s.145 is 'custodia legis' - Provisions of s.145 can
be invoked only when there is danger of breach of peace -
Jurisdiction of Magistrate does not extend to adjudicate into
disputed questions of title - Determination of the Magistrate is
confined to which party was in actual possession on the date of the
order - The real purpose is to decide who has actual physical
possession and not legal possession supported by title over the land
- To initiate proceedings u/s.145, the Magistrate has to be satisfied
of the existence of a dispute which is likely to cause a breach of
peace - Enquiry by the Magistrate is of a summary nature, the object
being to ensure tranquillity in the locality when the dispute is likely
to result in a breach of peace.
Property Law - Immovable property - Dispute - Title - Held:
Court does not decide title on basis of faith or belief but on basis of
evidence of ownership and possession.
Doctrines / Principles - Doctrine of Justice, Equity and Good
Conscience - Applicability - Held: With the development of statutory
law and judicial precedent, including progressive codification of
customs, the need to place reliance on justice, equity and good
conscience gradually reduced - However, where the existing
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statutory framework is inadequate for courts to adjudicate upon
the dispute before them, or no settled judicial doctrine or custom
can be availed of, or when parties are not governed by a particular
personal law, or when the source of law requires to be supplemented,
courts may legitimately take recourse to the principles of justice,
equity and good conscience to effectively and fairly dispose of the
case.
Doctrines / Principles - Doctrine of lost grant - Applicability
- Held: The doctrine supplies a rule of evidence and is applicable
in the absence of evidence, due to lapse of time, to prove the
existence of a valid grant issued in antiquity - However, the court
is not bound to raise the presumption where there is sufficient and
convincing evidence to prove possession or when there are no
defined grantees - There must be long, uninterrupted and peaceful
enjoyment of an incorporeal right - The doctrine of lost grant is
different from assertion of rights due to a prolonged custom -
Alternate plea of adverse possession is destructive of a valid legal
basis to apply the doctrine of lost grant as a rule of evidence -
Evidence.
Doctrines / Principles - Doctrine of lost grant - Effect of
alternate plea of adverse possession - Held: Adverse possession
postulates the vesting of title in one person and the existence of a
long continued and uninterrupted possession of another, to the
knowledge of and in a manner hostile to, the true title holder - Plea
of adverse possession would lead to an inference against the
application of the doctrine of lost grant as a plea of adverse
possession is premised in title vesting in someone other than the
alleged grantee - A person who sets up a plea of adverse possession
must establish both possession which is peaceful, open and
continuous - possession which meets the requirement of being 'nec
vi nec claim and nec precario' - To substantiate a plea of adverse
possession, the character of the possession must be adequate in
continuity and in the public because the possession has to be to the
knowledge of the true owner in order for it to be adverse - These
requirements have to be duly established first by adequate pleadings
and second by leading sufficient evidence - Possession - Adverse
Possession - Evidence.
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Evidence Act, 1872 - s.110 - Applicability - Held: s.110 is
based on the principle that possession in itself may raise a
presumption of title - But this applies when the facts disclose no
title in either of the disputants, in which case, possession alone
decides - Presumption cannot arise when the facts are known -
Possession.
Waqf - Waqf by user - Principles - Express declaration of
Waqf, if necessary - Held: Muslim law does not require an express
declaration of a Waqf in every case - Dedication resulting in a
waqf may also be reasonably inferred from the facts and
circumstances of a case or from conduct of the wakif - Doctrine of
waqf by user is a doctrine of necessity - The law recognises that
where, since time immemorial, worship has been offered at a land
with a mosque, the land is presumed to have been dedicated for a
religious purpose and even absent a dedication, is waqf by user -
However, this may not be extended to the extinguishment of competing
and established religious rights of another community in the same
property particular in the face of the evidence - Waqf Act, 1995 -
s.3(r) - Doctrines / Principles - Doctrine of "waqf by user" - Muslim
Law.
Evidence - Pleadings - Effect of inadequate pleadings - Held:
Evidence can only be adduced with reference to matters which are
pleaded in a civil suit and in the absence of an adequate pleadings,
evidence by itself cannot supply the deficiency of a pleaded case.
Words and Phrases - "legal person" - Meaning - Held: To
be a legal person is to possess certain rights and duties under the
law and to be capable of engaging in legally enforceable
relationships with other legal persons - Who or what is a legal
person is a function of the legal system - Jurisprudence.
The instant appeals arose out of five regular suits instituted
between 1950 and 1989, centering around a dispute of ownership
over a piece of land admeasuring 1500 square yards in the town
of Ayodhya. The Hindu community claims it as the birth-place of
Lord Ram, an incarnation of Lord Vishnu. The Hindus refer to
the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e.
birth-place of Lord Ram) and assert that there existed at the
disputed site an ancient temple dedicated to Lord Ram, which
was demolished upon the conquest of the Indian sub-continent
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by Mughal Emperor Babur. The Muslim community claims it as
the site of the historic Babri Masjid built by the Mughal Emperor,
Babur. The Muslims contended that the mosque was built by or
at the behest of Babur on vacant land.
In 1856-57, riots had broken out between Hindus and
Muslims in the vicinity of the structure. The British colonial
government attempted to raise a buffer between the two
communities to maintain law and order by setting up a grill-brick
wall which would divide the premises into two parts: the inner
portion to be used by the Muslim community and the outer portion
or courtyard, to be used by the Hindu community. In January
1885, a person claiming to be the Mahant of Ram Janmasthan
instituted a suit seeking the relief of permission to build a temple
on the Ramchabutra situated in the outer courtyard. The trial
judge dismissed the suit noting that there was a possibility of
riots breaking out between the two communities due to proposed
construction of a temple. The controversy entered a new phase
on the night intervening 22 and 23 December 1949, when the
mosque was desecrated by a group of about fifty or sixty people
who broke open its locks and placed idols of Lord Ram under
the central dome. On 29 December 1949, the City Magistrate
issued a preliminary order in respect of the property under Section
145 of the Code of Criminal Procedure 1898.
On 16th January, 1950, a suit (Suit 1) was filed before the
civil Judge by one Gopal Singh Visharad which was essentially a
suit by a worshipper for enforcement of his right to worship Lord
Ram at the Janmabhumi. On 5th December, 1950, another suit
(Suit 2) was instituted by one Paramhans Ramchandra Das seeking
reliefs similar to those in Suit 1; however it was subsequently
withdrawn. Nirmohi Akhara (which represents a religious sect
amongst the Hindus, known as the Ramanandi Bairagis) filed a
suit (Suit 3) before the civil Judge on 17th December, 1959 for
handing over the management and charge of the Janmabhumi
temple to it. On 18th December 1961, the Sunni Central Waqf
Board filed a suit (Suit 4) before the civil Judge for declaration
that the entirety of the disputed site, including Babri Masjid and
the surrounding graveyard, is a public mosque and for a decree
for possession. The plaint in Suit 4 contained a recital of a Suit of
1885 and it was contended that the plaintiff therein (Mahant) sued
on behalf of himself, the Janmasthan and all persons interested
in it, and the decision operates as res judicata as the matter
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directly and substantially in issue was the existence of the Babri
Masjid, and the rights of the Hindus to construct a temple on the
land adjoining the mosque. On 1 July 1989, a suit (Suit 5) was
brought before the civil Judge by the deity of Lord Ram
("Bhagwan Shri Ram Virajman") and the Janmasthan ("Asthan
Shri Ram Janam Bhumi, Ayodhya"), both of whom were asserted
to be juridical persons) through a next friend impleaded as a third
plaintiff for a declaration that the entire premises constitute Ram
Janmabhumi and for an injunction against interference in the
construction of a new temple after the demolition of the existing
building.
On 10th July, 1989, all the said suits were transferred by
the Allahabad High Court to itself for trial from the civil court.
Meanwhile, on 6th December 1992, the structure of the mosque
was brought down and the mosque was destroyed. In 2010, the
High Court held that the suits filed by the Sunni Central Waqf
Board and by Nirmohi Akhara were barred by limitation.
Thereafter, in a split 2:1 verdict, the High Court held that the
Hindu and Muslim parties were joint holders of the disputed
premises. Each of them was held entitled to one third of the
disputed property. The Nirmohi Akhara was granted the remaining
one third. A preliminary decree to that effect was passed in the
suit brought by the idol and the birth-place of Lord Ram through
the next friend. The judgment of the High Court was challenged
in the present appeals where the following points arose for
determination:
(i) Whether Suits 3, 4 and 5 or any of them are barred by
limitation;
(ii) Whether the decision in Suit of 1885 will operate as res
judicata in Suits 1, 3 and 5;
(iii) (a) Whether a Hindu temple existed at the disputed
site; (b) Whether the temple was demolished by Babur or at his
behest by his commander Mir Baqi in 1528 for the construction
of the Babri Masjid; (c) Whether the mosque was constructed on
the remains of and by using the materials of the temple; and (d)
What, if any are the legal consequences arising out of the
determination on (a) (b) and (c) above;
(iv) Whether the suit property is according to the faith and
belief of the Hindus since time immemorial the birth-place of
Lord Ram;
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