The Case Brief
M Siddiq (D) Thr Lrs
Mahant Suresh Das & Ors.
Appellants-M Siddiq (D) Thr Lrs
Respondents-Mahant Suresh Das & Ors.
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The first appeals centre around a dispute between two religious communities both of whom claim ownership over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The disputed property is of immense significance to Hindus and Muslims. The Hindu community claims it as the birth-place of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claims it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur. The lands of our country have witnessed invasions and dissensions. Yet they have assimilated into the idea of India everyone who sought their providence, whether they came as merchants, travelers or as conquerors. The history and culture of this country have been home to quests for truth, through the material, the political, and the spiritual. This Court is called upon to fulfill its adjudicatory function where it is claimed that two quests for the truth impinge on the freedoms of the other or violate the rule of law.
The Court is tasked with the resolution of a dispute whose origins are as old as the idea of India itself. The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime. Constitutional values form the cornerstone of this nation and have facilitated the lawful resolution of the present title dispute through forty-one days of hearings before this Court. The dispute in these appeals arises out of four regular suits which were instituted between 1950 and 1989. Before the Allahabad High Court, voluminous evidence, both oral and documentary was led, resulting in three judgements running the course of 4304 pages.
The full bench of High Court comprising of Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the judgement, which is in appeal. Justice S U Khan and Justice Sudhir Agarwal held “ all the three sets of parties” – Muslims, Hindus and Nirmohi Akhara – as joint holders of the disputed premises and allotted a one third share to each of them in a preliminary decree.
Suit 1 filed by Gopal Singh Visharad is essentially a suit by a worshipper for enforcement of his right to worship Lord Ram at the Janmabhumi.
Suit 3 filed by Nirmohi Akhara is for handing over the management and charge of the Janmabhumi temple to it.
Suit 4 filed by Sunni Central Waqf Board is 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 is filed by the deity of Lord Ram and the Janmasthan (both of whom are Asserted to be juridical persons) through a next friend impleaded as a third Plaintiff for a declaration that the entire premises comprised constitute Ram Janmabhumi and for an injunction against interference in the construction of a new temple after the demolition of the existing building.
The points for determination in these appeals were as follows :
- Whether Suits were barred by limitation
- Whether res judicata will be applicable.
- Whether a Hindu temple existed at the disputed site;
- 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;
- Whether the mosque was constructed on the remains of and by using materials of temple ; and
- If any legal consequences are arising out of the determination iii.,iv, and v., above ;
- Whether the suit property is according to the faith and belief of the Hindus since time immemorial the birthplace of lord Ram;
- Whether the first and the second plaintiffs in Suit 5 are juristic persons;
- Whether the third plaintiff was entitled to represent the first and second plaintiffs as next friend;
- Whether Nirmohi Akhara has established its claim of being a shebait of the deity of Lord Ram in the disputed premises;
- If (x.) is in the affirmative, whether the objection of Nirmohi Akhara to the maintainability of Suit 5 is valid;
- Whether during the intervening night of 22/23 December 1949, Hindu idols were installed under the Central dome of Babri Masjid as pleaded in the plaint in Suit 4;
- Whether it is open to the Court to determine if the three domed structure which existed at the disputed site prior to 6 December 1992 was a mosque in accordance with Islamic tenets;
- if the answer to (xiii.) is in the affirmative, whether the three domed structure at the disputed site was constructed in accordance with Islamic tenets;
- Whether there was a dedication of the three domed structure as a waqf at the time of its construction;
- in the alternative to (xv.) above, whether there is a waqf by public user as claimed by the plaintiffs in Suit 4;
- Whether the plaintiffs in Suit 4 have established in the alternative their case of adverse possession;
- Whether the Muslims and or the Hindus have established the claim of worship and a possessory title over the disputed property;
- Whether the plaintiffs in Suit 4 have established their title to the disputed property;
- Whether the plaintiff in Suit 5 have established their title to the disputed property;
- Whether the High Court was justified in passing a preliminary decree for a three way division of the disputed property in equal shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the plaintiffs of Suit 5;
- Whether the plaintiff in Suit 1 is entitled to the reliefs as claimed in the suit; and
- What, if any, relief ought to be granted in Suits 1, 3, 4 and 5
Contentions of Parties-
- The learned Counsel appearing on behalf of the Plaintiff in Suit 1 adverted to the order of the magistrate, under section 145 Cr.P.C. by which the disputed premises were attached and receiver was appointed, further stated that fourteen affidavits were filed by certain Muslims under Oredr XIX, Rule 1 of the C.P.C. stating that :
- The place where the Babri Masjid was situated is the birth-place of Lord Ram. The Babri masjid was built by “breaking” the birthplace of lord Ram;
- After British rules, Muslims were only reading Friday namaz in the mosque;
- After the construction of the masjid Hindus did not give up their position and continued to worship there;
- both Hindus and Muslims continued to worship at the disputed site;
- Post the riots of 1934, Muslims had stop going to the masjid out of fear and ever since, the Hindus had taken position of the main place in the mosque; and
- There was no objection in the possession of the Mosque was to be handed over to the Hindus as reading namaz at that place was against the Shariat.
- The above-mentioned learned counsel made the following submission;
- The suit of 1885 will have no impact on the present suit as in the earlier suit the relief sought was for the permission to establish a temple over platform which was confined to the Chabutra outside the mosque. However, the present suit is in the respect to the right to worship and seek the darshan of lord Ram, “according to the religion and custom” at the Janmabhumi temple;
- The trial court confirmed the ad-interim order passed in suit 1 by which the injunction was modified to prevent the idols from being removed from the disputed site and from causing interference in the performance of the pooja.
- Despite the publication of public notices in three newspapers calling objections with respect to the section 145 proceedings, none of the Muslim defendants filed any contrary statements;
- The right of entry into the temple for purpose of “darshan” or worship is a right which flows from the nature of the institution itself. Worship includes attendance at the temple for the purpose of darshan of a deity or deities in the precincts. If the general public have always made use of the temple for public worship and devotion in the same way as they do in other temples. It is a strong circumstances in favour of conclusive existence of a public temple.
- The learned counsel appearing for the respondents (Sunni Central Waqf Board) has raised the following contentions-
- The mosque was constructed by Babur through his commander Mir Baqi and was dedicated as a valid worked under the Muslim Waqf Act 1936 the chief commissioner waqf decided that the mosque was a Sunni waqf;
- The Muslims have been in possession of the mosque since 1528 and by virtue of being in possession for more than 400 years, affirmed there right of adverse possession over the disputed property;
- Suit 1 has been primary file against the state authorities as the main grievance was against the authorities preventing the plaintiff from offering worship inside the disputed premises ;
- The suit was filed to and force of personal right of the plaintiff i.e. the right to worship inside the disputed structure and thus, the rights gets automatically extinguished on his death ;
- That the affidavits filed by the other Muslims person of Ayodhya in the proceedings under section 145 proceedings are not admissible in evidence under section 3 of the Indian evidence act. The affidavits have no relevance as the author of the affidavits have not been cross-examined and since they are not parties to any of the suits individually that cannot be relied upon;
- The learned counsel appearing on behalf of the plaintiff in Suit 5 has submitted that Suit 3 is barred by limitation same submission was also urged by the counsel of plaintiff in Suit 4 and no relief should or could have be granted in their suit.
- The learned counsel of plaintiffs in Suit 3 made the following contentions;
- No final order has been passed in the proceedings under section 145, hence the limitation under Article 47 of the Limitation Act has not been commenced.
- Denial of plaintiffs ‘absolute’ shebaiti rights of management and charge is a continuing wrong. By virtue of Section 23 of the Limitation Act, a fresh cause of action arose every day.
- Article 120 of the Limitation Act is a residuary provision and is applicable when no other provision, including Articles 47 and 142 applies. The doctrine of merger applies, and the preliminary order passed under section 145 merges with the order by which the ad-interim injunction in Suit 1 was upheld by the High Court.
- In a suit of restoration of possession from a receiver, the question of limitation can never arise and such suits can never be barred by limitation.
- In determining the entitlement to mesne profits, the question of title will have to be adjudicated upon and possession will have to be delivered by the receiver to the true owner.
- The learned counsel for the plaintiffs in Suit 5 refuted the submission made by the counsel of plaintiff in Suit 3, and made the following submissions with respect to limitation and the maintainability of Suit 3:
- The order under section 145 is an exercise of police powers for securing peace and does not determine title or possession over the property. Since such an order does not purport to give possession to any party, the question of plaintiff in Suit 3 being dispossessed on account of an order in proceedings does not arise.
- Section 3 of Limitation Act provides that every suit instituted after the period of limitation shall be dismissed. The Supreme Court can dispose of appeals only on the ground of limitation. Unlike the trial court that has to decide on all issues, the supreme court is not bound to do so once it comes to the conclusion that suit is barred by limitation.
- The High Court’s decision has to be set aside. The decree is contrary to the law of pleadings. No prayers for a partition of land was sought by plaintiff(Nirmohi Akhara). The High Court’s order has not been passed in the pursuance of the ends of justice but is an end of justice.
- Section 28 of the Limitation Act 1908 extinguishes the substantive rights of a person. Accordingly, if the party fails on the issue of limitation, then it also fails on all other substantive issue and , this court cannot give relief to Nirmohi Akhara(Plaintiff) in Suit 3.
- Article 120 alone governs the suit filed by Nirmohi Akhara(plaintiff). Articles 142 & 144 of the Limitation Act are not applicable. Once the limitation Starts to run, it cannot be stopped.
- The learned counsel for plaintiff in Suit 4 made following arguments with respect to limitation of Suit 3 :
- The relief which Nirmohi Akhara(plaintiff) has sought in Suit 3 is for management and charge. However in it’s plaint, it has claimed that Janmasthan ‘belongs’ and ‘has always belonged to it’ and the use of these terms in loose sense may be given context be inferred as ‘possession’, ‘ownership’ and ‘implied title’.
- Nirmohi Akhara(plaintiff) is using the term ‘belongs’ to claim title and obviate the bar of limitation. The term ‘belong’ should be given it’s ordinary meaning. If the plaintiffs claims title for itself then it is at odds with the suit of the deity. It can only claim ancillary rights.
- Nirmohi Akhara (plaintiff) has used the proceedings under section 145 to urge that the action of the government in denying them absolute shebait rights is a continuing wrong.
- The learned counsel appearing on behalf of the defendant no.4 (Sunni Central Waqf Board) in the Suit No.5 canvassed the following proposition:
- Section 10 of the Limitation Act has no application to the present case since the provisions apply to a suit against a person in whom property has become vested in trust for any specific purpose, or his legal representative or assigns (other than for lawful consideration) for following in his or their hands the property or the proceeds there of or for an account of the property proceeds;
- The suit could not have been instituted when the deity was “well represented” through its shebait.
- The defense that a deity is a perpetual minor will not aid the plaintiffs in Suit 5 for the reason that the deity was represented by the shebait and suit can be instituted by a worshipper as a next friend only when the shebait is found to have acted adversely to the interest of the deity. However, no allegations has been made by next friend against the shebait.
- It is settled by principle of law that limitation runs against a perpetual minor and Suit 5 is not maintainable as there was no cause of action for instituting it. Even otherwise, whichever provisions of the limitation act applicable suit 5 would be barred by limitation.
- The learned counsel on behalf of the plaintiffs in Suit 5 submitted that principle of res judicata are not attracted for the following reason:
- Parties are different;
- The suit was for inserting a personal right to construct a temple on the chabutra;
- Issues and relief sought in the earlier suits are different;
- The suit properties are distinct;
- The Suit of 1885 was instituted when the CPC 1882 was in force. Section 13 of the CPC 1882 dealt with res judicata. Explanation V as it stood only covered persons who were litigating in respect of a private right claimed in common for themselves and others. In the CPC 1908, the expression “public right” was added to Explanation VI in view of the provisions of Section 91. The provisions of the CPC are both procedural and substantive. In the Suit of 1885 only a private right was sought to be enforced, whereas in the present proceedings a public right to worship is sought to be enforced. Even if the CPC 1882 was to be applied, which law prevailed as on the date of the filing of the Suit of 1885, the findings in that suit (which sought to enforce only a private right) would not operate as res judicata.
- The learned counsel on behalf of the plaintiffs in Suit 5 submitted that suit 4 would be governed by article 120 of the limitation act alone and that neither articles 142 nor 144 would apply. The submission is sought to be supported on the basis of following propositions:
- The primary relief which has been sought in suit 4 is a declaration that the property dispute is a public mosque and hence, the suit does not see the declaration for the enforcement of the right of worship;
- When a suit is filed for a declaration of title to property which is attached under section 145, it is not necessary to seek further relief for the delivery of possession since the defendant is not in possession and is not in a position to deliver possession. The the property under attachment being custodia legis, the receiver is bound to handover possession to whoever is held to be entitled as a result of civil adjudication.
- A prayer seeking possession was not necessary since the property was custodia legis since December 1949 and the prayer was introduced only to circumvent the period of limitation of 6 year composed by article 120.
- Statutes of limitations are statutes of repose;
- The period of 6 years under article 120 has to be computed from the date when the right to sue accrues and there is no right to sue unless there is an accrual of the right asserted in the suit and infringement or a clear and unequivocal intention to infringe the right.
- The cause of action as pleaded in the plaint is stated to have arisen on 23rd December 1949 when the Hindus unlawfully entered the most and desecrated it by placing idols inside, thus causing an interference in the offering of prayers by Muslims;
- The case of the plaintiffs is that the injury which was sustained was of a continuing nature and not the wrong, which was complete on the date of the desecration. The bar of limitation is sought to be overcome by alleging that the cause of action is renewed by virtue of a continuing wrong;
- In the present case, there can be no question on a continuing wrong since the property was custodia legis. Hence, even assuming (without admitting) that the placement of the idols under the central dome was a continuing wrong, it came to an end upon the attachment of the property; and
- The cause of action arose when the idols were placed in the inner courtyard. This arose even before the proceedings under Section 145 and hence, the fact that the Magistrate has not passed any final order would not lead to limitation ceasing to run.
The Constitutional Bench of Supreme Court gave the judgement which contained Reliefs & Directions as follows-
- (I) Suit 3 instituted by Nirmohi Akhara is held to be barred by limitation and shall accordingly stand dismissed;
- Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs is held to be within limitation. The judgment of the High Court holding Suit 4 to be barred by limitation is reversed; and
- Suit 5 is held to be within limitation
- Suit 5 is held to be maintainable at the behest of the first plaintiff who is represented by the third plaintiff. There shall be a decree in terms of prayer clauses (A) and (B) of the suit, subject to the following directions:
- The Central Government shall, within a period of three months from the date of this judgment, formulate a scheme pursuant to the powers vested in it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya Act 1993. The scheme shall envisage the setting up of a trust with a Board of Trustees or any other appropriate body under Section 6. The scheme to be framed by the Central Government shall make necessary provisions in regard to the functioning of the trust or body including on matters relating to the management of the trust, the powers of the trustees including the construction of a temple and all necessary, incidental and supplemental matters;
- Possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted.
4. In exercise of the powers vested in this Court under Article 142 of the Constitution, we direct that in the scheme to be framed by the Central Government appropriate representation may be given in the Trust or body, to the Nirmohi Akhara in such manner as the Central Government deems fit.
5. The right of the plaintiff in Suit 1 to worship at the disputed property is affirmed subject to any restrictions imposed by the relevant authorities with respect to the maintenance of peace and order and the performance of orderly worship.
6. All the appeals shall stand disposed of in the above terms. Parties are left to bear their own costs.
Rule of Law-
The law is very simple in this case it’s the history and dispute of case which is rather tough it’s a simple civil suit of title which constitute under the Code of Civil Procedure , a title suit is a suit in which “A proceeding to establish an individual’s right to ownership of real property against one or more adverse claimants” this was the gist of the of the whole case “ who the lands belong to, who is the owner of the land”. That is the law which applies here in this case.
The Title to the land must be decided on the settled legal principles and applying evidentiary standards which governs civil trail. Title cannot be established on the basis of faith and believe. The High Court has adopted a part which was not open to it in terms of the principles, it granted relief which were not the subject matter of the prayer in the suits. The provision does not entitled 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. The High Court has completely erred in granting relief which lay outside the ambit of the pleadings and the cases set up by plaintiffs. The other serious flaw in the entire approach of the high court in the granting relief of a three-way bifurcation of the disputed site, that the suit 3 and 4 were barred by limitation.
The dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence. The law provides us with parameters as clear but as profound as ownership and possession. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property.
The present case have traversed the realm of history, archaeology, religion and the law. The law must stand apart from political contestations over history, ideology and religion. For a case replete with references to archaeological foundations, we must remember that it is the law which provides the edifice upon which our multicultural society rests. The law forms the ground upon which, multiple strands of history, ideology and religion can compete. By determining their limits, the Court as the final arbiter must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another. On 15 August 1947, India as a nation realized the vision of self-determination. On 26 January 1950 we gave ourselves the Constitution of India, as an unwavering commitment to the values which define our society. At the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law. Under our 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. Those whose duty it is to interpret the Constitution, enforce it and engage with it can ignore this only to the peril of our society and nation. The Constitution speaks to the judges who interpret it, to those who govern who must enforce it, but above all, to the citizens who engage with it as an inseparable feature of their lives.