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The following article is a case comment on M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors. This case analyzes the dispute which arose in the last two centuries and is known as Ayodhya Land Dispute Case. The case initially started as a property dispute between the two community’s i.e., Hindus and Muslims, and in the later stage developed as a case of national importance due to a lot of politics involved in the case. In this case commentary, the authors critically analyze the decision of the apex court in this case.
The dispute regarding the civil suit was originally between two religious communities whose origin is as old as the idea of India itself. The dispute is over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The property in dispute has immense importance to Hindus and Muslims. The contention put by the Hindu community that the disputed property is the place where Lord Ram, an incarnation of Lord Vishnu has was born. The claims of the Muslim Community, on the other hand, stated that the disputed property is the place where the first Mughal Emperor, Babur built the historic Babri Masjid on vacant land.
The background, in this case, is very historical as it expanded the regime of Mughal Emperors and the British period. In 1528, Mir Baqi, General of Babur builds a mosque (Babri Masjid) at the site. The first known communal riots between the Hindu and Muslim communities happened in 1856-1857 in the vicinity of the structure.
The colonial government in 1859 build a grill brick wall at the sides of the inner courtyard and this side is given to the Muslim community and the possession of the outer courtyard is given to the Hindu Community. In 1885, the first civil suit was instituted by Mahant Raghubar Das for building a temple in the outer courtyard but the court quashed the suit of the petitioner by stating that it would create disturbance for maintaining law and order between the two communities.
On the night of December 22-23, 1949, idols of Ram Lalla was placed under the central dome by the Hindu Community and from this moment Muslim Community wrongly dispossessed from worshipping inside the Mosque. The Faizabad civil court on 29th December 1949, through the attachment orders under Section 145, of CrPC put a lock at the mosque. Then in 1986, District Judge of Faizabad Court orders unlocking of the gates to allow Hindus to worship. On 6th December 1992, the Babri Masjid was demolished by karsewaks.
On the night of 22-23 December 1949, idols of Ram Lalla were placed by the Hindu Community and then on 29 December the Faizabad Court orders attachment of the disputed property under section 145 of CrPC. So after the independence, the first civil suit instituted by Gopal Singh Visharad on 16th January 1950 and after his death in 1986 his son continued to fight the legal battle for the grant of right to worship inside the inner structure.
The Nirmohi Akhara a Hindu sect known as Ramanandi Bairagis instituted the case in 1959 and their claim is for the ‘management and charge of the temple’ as conferred by Suit-3.
In 1961 the 4th suit was instituted by Uttar Pradesh Sunni Central Board of Waqf and other Muslim residents of Ayodhya and their claim is for the declaration of title and, if necessary, a decree for possession.
In the year 1989, the 5th suit by deity himself (known as Bhagwan Ram Lalla Virajman) instituted the lawsuit in 1989 through the next friend and former Allahabad HC Judge Deoki Nandan Agarwal. In 2002 upon his death, Triloki Nath Pandey became deity’s next friend. The Claim is for the declaration of title to the disputed site coupled with an injunction.
Allahabad High Court transferred the case to itself for trial from the civil court at Faizabad in 1989. By a 2:1 split decision, the court ruled a three-way bifurcation of the disputed area between Sunni Waqf Board, The Nirmohi Akhara, and Ram Lalla. The inner courtyard where the dome once stood was given to the deity. The Ram Chabutra and Sita Rasoi gave to the Nirmohi Akhara and the rest of the land was given to the Sunni Board.
None of the three parties were satisfied and appealed in the Supreme Court challenging this judgment. Other parties also filed Special Leave Petitions before the SC challenging the 2010 HC verdict. The SC stayed the verdict on 9 May 2011 and held that the status quo would remain.
The significant argument made by the Hindu Community is that Shri Ram Janmabhoomi was built before the construction of the Mosque. There existed at the disputed site an Ancient temple, dedicated to Lord Ram, which was demolished upon the conquest of India by Mughal Emperor Babur.
The Muslims contend that the mosque was built by Mir Baqi at the behest of Babur on vacant land. But the significance of the site for the Hindus is not denied by the Muslim Community. It is the case of the Muslims that there exists no proprietary claim of Hindus over the disputed property.
The Nirmohi Akhara in suit 3 stated that they are at all material times in charge and management of the structure which according to them was a temple at a disputed site until 29 December 1949 on which date an attachment was ordered. The Nirmohi Akhara further stated that they are claiming the disputed site in the capacity of shebait and as a manager of the temple.
They also stated that denying the possession of the site is a continuing wrong because shebait’s have absolute right over the property. Even if we are barred by limitation but we continued to be shebait’s, we possess an exclusive right over the property. The trust which is set up in 1985 was to damage the interest and title of the Nirmohi Akhara.
The plaintiff in suit 5 was a vaishnavite. Lord Vishnu is the principal deity of Vaishnavas and Lord Ram is recognized as one of the avatars of Lord Vishnu. The plaintiff in suit 5 stated that the plea is founded on the ground that earlier parties were pursuing their interest and failed to protect the needs and concerns of the deity of Lord Ram.
The claim arises by the Nirmohi Akhara that at the material times they were managing the inner courtyard as shebaits have failed to prove the exclusive possession and the interested worshipper had every right to sue on behalf of the deity. In the absence of a lawfully recognized shebait, a suit instituted by a next friend on behalf of deity as first and second plaintiffs in suit 5 was maintainable.
The arguments made by Sunni Waqf Board in suit 4 as plaintiff states that reference to ancient scriptures will not give the title and the mere belief of the devotees cannot confer title over the disputed land. Without an object of manifestation of belief, a piece of land cannot be given juristic personality. The suit filed by Mahant Raghubar Das in 1885 was dismissed and it barred the claim of Hindu community be Res Judicata. The plaintiff in suit 4 also contested that the right of possession cannot be based on trespass because when idols were placed inside the mosque on December 23, 1949, it amounted to trespass by Hindu Community.
ASI report does not conclusively state that Masjid was built over a temple and the report has several contradictions.
There is no concept of abandoning of mosque and ‘once a mosque always a mosque’.
Hindus in the 1950 suit only claimed the right to worship and not title and it is only claimed in the belated suit filed in 1989 by the deity. The legality of Babur’s acts after many centuries was not possible to check.
The Supreme Court, in this case, made many significant observations:
- The Court observed that for the limited purpose of examining the claims of possession it travelled back to time and not to adjudicate on an alleged historic wrong. In Promod Chandra Deb v. State of Orissa it was held that the court would recognize those rights and liabilities which the new sovereign recognized either expressly or impliedly. Our Constitution through Article 372 provides for continuity of British rule and the Indian Republic.
- The court opined that the British Administration had recognized and grant specific permission to the Hindus to open additional access when the sequence of events emanating from the installation of an idol in 1873.
- The court ruled in Karnataka Board of Waqf v. Government of India that the plea of adverse possession is blended with fact and law and it is not a pure question of law. For claiming the adverse possession a person should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the other party knows the factum of possession, (d) how long his possession has continued and (e) his possession was open and undisturbed. The Muslim party did not produce any evidence regarding their possession for the period between 1528 and 1860 and thus they cannot regard as meeting the essential ingredient for the grant of adverse possession.
- The Supreme Court in the historic judgment of M Ismail Faruqui v. Union of India held that the mosque was not integral to Islam.
- The Court also indicated while talking about secularism in the case of SR Bommai v. Union of India and held that secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.
- The court observed that the desecration of Muslims and the demolition of Babri Masjid is an egregious violation of the Rule of Law and the committed wrong must be remedied.
- The court also rejected the contention of the Hindu Community that the mosque did not accord with Islamic tenets. The disputed premise was constructed as a mosque because the stone inscription indicated with ‘Allah’, the mimbar, and the mihrab.
- The contention in suit 5 was that the property was a Swayambhu deity and the second plaintiff in suit 5 was a juristic person is rejected by the court. The court opined that the conferment of legal personality on an immovable property could lead to the property losing its character as immovable property; it was also held in (The Mosque, Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, Amritsar).
- Supreme court observations on the contentions by Nirmohi Akhara on the question raised by them of continuing wrong is that there was no right inhering on Nirmohis was disturbed when attachment order of the Magistrate and Nirmohi Akhara does not establish its possession of inner courtyard and the structure of the mosque within it. They were also not regarded as shebaits because they have not instituted the case on behalf of deity and there was personal interest involved in it. Hence, suite 3 has been held to be barred by limitation.
- The Hindus believe that at the birthplace of Lord Ram and faith and belief as depicted by the evidence on record in SC’ Addenda, the Mosque was constructed and three-dome structure is the birthplace of Lord Ram.
- The court observed as per the ASI report that the underlying structure belongs to the Hindu Community in the 12th The Mosque was constructed not on vacant land but on remnants of pre-existing structure which is not Islamic.
- The court also opined that Hindus never accepted the demarcation of the inner and outer courtyard in 1857 done by the British administration and for the entire land was of religious significance.
- The court indicated that there was no exclusion from worshipping within the inner courtyard by Hindus before 1856-1857 and it was after the communal riots that happened in 1856-57 led to the bifurcation of the land through the railing.
- The court, at last, stated that a clear case of a possessory title to the outside courtyard has established by the Hindus through virtue of long, incessant, and uninterrupted worship at the Ramchabutra and other objects of religious importance.
The Supreme Court while pronouncing the Judgment held the following:
- The Court cleared that the three ways division of the disputed land by the High Court is legally unattainable. It will not secure peace and tranquillity and not subserve the interest of either of the parties. It was not a partition suit.
- The Nirmohi Akhara suit 3 has been held to be barred by limitation and their claim to be a shebait shall stand rejected. Although the court recourse to its power under Article 142 of the Constitution and grant Nirmohi Akhara an appropriate role in the management of the trust formed because of the historical presence of the Nirmohis at the disputed site.
- The discovery of the ASI report cannot be set aside as conjecture.
- The ASI report stated that the underlying structure of Babri Masjid was not of Islamic tenets and further not built on vacant land.
- The report of the ASI was not conclusive as to whether the underlying structure was a Hindu temple.
- The mere existence of structure beneath the mosque cannot lead to a title for Hindus even if it is of Hindu origin.
- The court recognizes the legal personality of Bhagwan Sri Ram Virajman but also held that the deity is not a perpetual minor for limitation.
- The court also accepted that the deity is within the period of limitation and held that because the deity is not the party to the earlier suit and their interest and rights are not protected by the earlier parties hence, plea given in suit 5 is accepted.
- The court clarified in its verdict that ‘Asthan Shri Ram Janam Bhumi’ is not a juristic person in Suit 5 as plaintiff no. 2.
- The faith of Hindus that the place is the birthplace of Lord Ram is undisputed.
- The adverse possession is not proved by the Sunni Waqf Board but there is evidence to show that Hindus before 1857 was visiting the premises.
- There is clear evidence to show that Hindus worshipped in the outer courtyard of the disputed site. The Sunni Board showed no evidence regarding the exclusive possession of the inner courtyard before 1857.
- The Supreme Court held that the entire disputed land of 2.77 acres in Ayodhya must be handed over to the Bhagwan Ram Lalla Virajman in suit 5 for the construction of Ram Mandir.
- The order of status quo and an assurance given to this court has been breached by destructing the mosque which leads to the egregious violation of Rule of Law. Hence, it is necessary to provide land to the Muslims on some other place although, on a balance of probabilities, the Hindu side gives evidence regarding the possessory title of a composite whole disputed land is on a better footing than the evidence adduced by Muslim party.
- The court directs that the land admeasuring 5 acres to be allotted by the Central Government or by the Government of Uttar Pradesh out of the acquired land to the Sunni Central Waqf Board within the city of Ayodhya.
Despite this, the Supreme Court made efforts to make the judgment of Ayodhya to satisfy every party related to the dispute, however, there are many contradictions in its verdict. The Judgment impliedly shows that the apex court has bowed down in front of majoritarian barbarism and extremism. The honourable court set aside the logic and law and put faith and belief to gratify a certain radical section of the society.
The Supreme Court in its judgment used Article 142 as a tool to pacify the Muslim litigants. The most significant aspect of the Ayodhya verdict is that it shows how Honourable Supreme Court whimsically used its power under Article 142 arbitrarily to pass orders that are beyond the scope of its jurisdiction. The powers derived by the Supreme Court under Article 142 are not absolute but unfortunately, that is what happened as the court refrained from solely deciding on the title rights of the disputed property under scrutiny.
The Babri Masjid was primarily built as a public mosque and a public mosque is always being stated as a Waqf property. The Apex court in its judgment accepted that the Muslim community was desecrated from being making Namaz on the night of December 22-23, 1949 and the honourable court also accepted that the Babri Mosque was demolished through a pre-planned manner.
The court in its judgment also stated that the demolition of Babri Masjid is an egregious violation of the rule of law. But, the Honourable Supreme Court while granting 5 acres of vacant land anywhere else in the Ayodhya subverts the nature of Waqf land. A Waqf property is a religious endowment. The Waqf property cannot be given even partially to the other party because it is dedicated to God. This form of dedication is an irrevocable one. It is a settled principle in law that a Waqf property cannot be gifted, sold, or bartered. This is the reason the Honourable court could not have allocated an alternate plot of land in place of the demolished mosque.
Another criticism which outlines from the Apex court judgment is that it without so much analyzing the contentions of both the parties show benign attitude towards Hindus party claim and put faith and belief of the Hindu Community at the topmost priority. If the claims of both the parties were scrutinized properly and the burden of proof was placed equally on both sides then the Hindu party could have lost their claim of possession.
Till the 19th century, the claims of the Hindu Community are non-existent that beneath the exact three dome structure the Lord Ram was born. Also, the first known civil suit filed by Mahant Raghubar Das on behalf of Hindus in 1885, and then Hindus believed that the Ramchabutra was the place where Lord Ram was born which is outside the courtyard and in some distance from three domes of the Babri Masjid. Suddenly after the incident which took place on December 22-23 and the ouster of Muslims from the Masjid led to the belief of the Ram Janmabhoomi at the disputed site.
The whole notion around which the case is evolved is that the Babri Masjid was built after the destruction of Ram Janmabhoomi temple and the ASI report stated that there was a temple in the 12th century where Babri Masjid was built in the 16th century but there are no shreds of evidence between the time gaps of 4 centuries. The Honourable court also accepted these findings of the ASI report but it seems that it would not matter to the court and they also believed in the Hindu community notion that the entire disputed land is the Janmabhoomi of Lord Ram.
The Supreme Court gave undue reliance to the unreliable ASI report as it is evident from the orders of excavation given by the High Court in 2002 and the High Court stated that there was a proper representation to be given to the Muslim candidate in the formation of a team which supervises the excavation at the disputed site. But no such proper representation given to them as only one member out of a total 14 member supervision team gets the seat and also the majority of labourers who excavate the site are Hindus. This also puts various questions in itself which the Apex Court did not see in its ruling.
The question mark also arises as the Supreme Court did not find it interesting to tell who authored the report of addenda. The Honourable court also not thinks once before citing European writings to establish the paramount belief of Hindus. In Author’s opinion, there are various Hindu religious texts and many indigenous Sanskrit texts and in no one, it is written that Lord Ram was born exactly at the same disputed site where the three dome structure was built by Babur.
The Babur Nama, the memoir of Emperor Babur there also no such thing was stated that any temple was constructed after destructing the Holy place related to Lord Ram. The Honourable court curiously did not account for to memoir of Babur and also not give so much significance to the writing of Hindu religious texts book and for just the sake of proving the belief and faith of the Hindus the court did not find anything vague for citing European writings.
The Supreme Court in its wisdom put an unequal burden of proof on Muslims to prove their exclusive possession of the site from 1528-1857. To conclude we can say that the Ayodhya judgment is a huge setback to evidence law.
The Judgment will be remembered for the victory of faith over the rule of law as the Honourable Supreme Court observe religious beliefs even in deciding a property dispute, and it went ahead to give property to worshippers based on faith despite acknowledging that faith cannot confer title.
Authored by: Brijesh Sharma & Shrashank Tripathi
Amity University, Lucknow and Dr. Shakuntala Misra National Rehabilitation University, Lucknow
This Case Comment was shortlisted in 2nd Amity National Case Comment Writing Competition 2020
 1962 Supp (1) SCR 405
 (2004) 10 SCC 779
 (1994) 6 SCC 360
 (1994) 3 SCC 1
 AIR 1940 PC 11