M SIDDIQ (D) THR LRS V/S MAHANT SURESH DAS & ORS (2019)

Updated: Jun 19

By: NANDINI SRIVASTAVA,

Manipal University, Jaipur


The court had to deal with an issue which is as old as India itself. It has existed through the time period of Mughal Empire, British period and the constitutional regime. There has been a long battle between the two religious groups that is Hindus and the Muslims regarding the structure at the disputed site of 2.77 acres which forms part in the village of Kot Rama Chandra in Ayodhya in Paragana Haveli Avadh, of Tehsil Sardar in the District of Faizabad. People of Hindu religious group claims the structure to be the Ram Janambhumi (the birthplace of Lord Ram) which was demolished by the Mughal Emperor Babur to build the mosque whereas the people of Muslim religious group states that Babur had commanded Mir Baqi to build Babri Masjid on a vacant land in year 1528 where no temple existed.


FACTS OF THE CASE

1. A suit was filed by Gopal Singh Visharad in the year 1950. He was a resident of Ayodhya, he claimed in suit that, he was entitled to worship in the Ram Janambhumi without any hindrances near the idols as per his religion and custom.

2. After that, the second suit was filed which was similar to the first one by Pramhans Ramchandra Das which was later withdrawn.

3. Next, third suit was filed in 1959 by Nirmohi Akhara. They represent the Hindu religious sect called Kama Nandi Bairgais. In this suit they had mentioned that they were always in charge of and managed the structure of disputed site, which according to them, was temple before 29th December 1949. Their claim was to resume their role as Shebaits (the person who serves deity), manage its affairs and receive offerings from the devotees.

4. Then, fourth suit was filed by the Uttar Pradesh Sunni Central Board of Waqf and the Muslim residents of Ayodhya. They stated that the structure has always been a public mosque where prayers have been offered till 23rd December 1949 and Friday prayers till 16th December 1949. Their suits claimed for declaration of title and removal of idols which had been placed by group of Hindu people on 22nd – 23rd night 1949 with the intention to destroy, defile and damage the Islamic religious structure. This was filed in 1961.

Idols placed on the night of 22nd – 23rd December led to violence. The disputed site was sealed to maintain peace and order. The District Magistrate and the Additional District Magistrate invoked Section 144 and 145 of the Code of Criminal Procedure, 1908 respectively.

5. Later, the fifth suit was filed in 1989 by a ‘next friend’, Ram Lalla (third plaintiff) on behalf of “Bhagwan Shri Ram Virajman” (first plaintiff) and birth place of Lord Ram “Asthan Shri Ram Janambhumi” (second plaintiff) on the ground that law recognises idol and birth places as juridical entities.


PROCEDURAL BACKGROUND

Order dated 6th January 1964 by the Civil Judge four suits were consolidated and the suit 4 was made the leading case with the agreement of all the parties. The pecuniary jurisdiction of the case increased therefore the case was transferred to the Court of Munsif Sardar. In 1987, the state of Uttar Pradesh filed an application in the Allahabad High Court under Section 24 of the Code of Civil Procedure seeking the withdrawal of all the four suits from the Court of Munsif Sardar and transferring it to itself. The fifth suit was also filed before the Civil Judge of Faizabad but an application for its transfer was filed by its plaintiffs was filed in the Allahabad High Court.

The Allahabad High Court pronounced the judgement in 2010. The bench comprised of three judges including Justice Sibghat Ullah Khan, Justice Sudhir Agarwal and Justice Dharam Veer. The High court in 2:1 majority ruled out three-way division of the disputed area between Sunni Central Waqf Board, Nirmohi Akhara and Ram Lalla.

Parties of this case later has been filed an appeal in the Supreme Court against the judgement of the High Court, 3 judges bench were constituted for this case but, later an administration order dated 8th January 2019 made in pursuance of order 6 Rule 1 of the SC Rules, 2013 the Chief Justice of India constituted the 5-judges bench. On 26th February the court directed mediation to explore the possibility of delivering a solution to the issues raised in the appeal. Mediation panel for this case comprised of Justice Fakkir Mohammad Ibrahim Kalifulla, Sri Sri Ravi Shankar and Mr Sri Ram Panchu was set up but no settlement could be done till 2nd August and hence the hearing of appeal was directed to commence from 6th August 2019.


ISSUES

1. Whether Hindu temple existed at the disputed site; Whether the temple was demolished by Babur or his commander Mir Baqi in 1528 for building a mosque; Whether mosque was built on the remains or the material remains of the temple and what will be the legal consequences if any of the above is proved to be true?

2. Whether the plantiff in suit no. 1 is entitled to his claim and will any relief be given to suit 1, 3, 4 and 5?

3. Whether the plaintiffs in suit no. 5 juristic person and is the third plaintiff entitled to represent them?

4. Whether the High Court was justified in giving judgement of a three-way division of the disputed site?

5. Whether the plaintiff in suit 4 and 5 established their title to the disputed property?

6. Whether there Nirmohi Akhara has established its claim of being Shebaits of Lord Ram?

7. Whether there was dedication of the three domed structure as a Waqf or creation of the same by public user?

8. Does 1885 suit filed by Mahant Raghubar Das to construct temple need the disputed site attract Res Judicata?


DISPOSITION

The judgement was delivered by 5 judges bench comprising of Chief Justice of India Ranjan Gogoi, Justice SA Bobde, Justice DY Chandrachud, Justice Ashok Bhushan and Justice Abdul Nazeer.

The right of the plaintiff of suit no. 1 was affirmed subject to restrictions imposed by certain authorities to maintain public order and peace. No other relief as such was provided by the court in regard to any of the suit.

All the suits except suit no. 3 which was filed by Nirmohi Akhara was maintainable. That was barred by limitation. Only first plaintiff in suit 5 was held to be a juristic person that the third plaintiff can represent. Ram Janambhumi cannot be given the title of juristic property as it will alter the nature an immovable property which has also be reiterated in the case of Masjid Shahid Ganj Mosque v. Shiromani Gurudwara Parbandhak[1]. Immovable property is subject to ownership and division.

High Court in its judgement has tried to preserve and respect each culture of India yet its judgement is not justifiable on the ground that it has provided relief to suit which was barred by limitation that is suit 3.

The evidence suggests the possession of the outer courtyard by the Hindus None of the religious group could indicate continuous possession of inner courtyard but evidences show that it was used by Hindus prior to 1857.

Nirmohi Akhara was denied Shebaitship because it failed to present proof that it had possession over the inner courtyard and did not even had continuous management rights over the idols in the outer courtyard. Possession and the right to manage are essential elements to claim Shebaitship as has been decided in the precedent case Gopal Krishnaji Ketkar v. Mahomed Jaffar Mohammed Hussein[2].

The court stated that neither there was dedication of the three domed structure as a Waqf nor there was creation of the same by public user as the Sunni Central board has failed to present evidence supporting the same and no evidence can be found that the disputed site was used by Muslims to offer namaz before the annexation of Oudh or transfer of power to the British administration.

The court held that suit of 1885 cannot be restricted because the suit was then filed for personal interest because the Hindu devotees were not represented by Mahant and moreover the prayers and issues raised today are altogether different from the 1885 suit.

The court held installation of idols on 22/23rd December is violation of law.

The court directed that the possession of the disputed structure shall remain with the central government till it exercises the powers vested to it under Section 6 and 7 of the Acquisition of Certain Areas at Ayodhya Act, 1993 and handover the disputed structure to the trust or body. The central government shall set up a trust with board of trustees or a body and it shall make necessary provisions for the functioning and management of the trust or the body. They shall have the power on matters of trustees, construction of temple on the disputed site and all other important incidental and consequential matters.

A suitable plot of land in Ayodhya should be handed over to the Sunni Central Waqf Board of 5 acres. The Sunni Central Waqf Board shall have the liberty to take steps for the construction of mosque and all the additional facilities. Such land shall be allotted by the central government out of the land that they acquired under the Ayodhya Act, 1993 or by the state government. Central and state government shall consult with each other on this pertaining matter.


JUDGEMENT ANALYSIS

The learned judges of the Honourable Supreme Court after carefully considering all the oral and written evidences pronounced that the disputed site is the birth place of Lord Ram and temple should be built on it.

The judgement has been delivered on clearly understood facts and evidences. The Archaeological Survey of India (ASI) report reveals presence of an underlying structure which can be dated back to 12th century. The report suggests the structure to be of Hindu religion origin and it also indicates the presence of a circular shrine with makara pranala which can be dated back to 8th – 10th century Hindu worship. The finding also draws our attention to the fact that only the foundation of underlying structure has been used in building the mosque and no other material. Pillar of mosque are made from Kasturi stone pillar and the finding does not in any way suggest that those pillars were used in the underlying structure. It is hard to conclude whether the underlying structure was destroyed or demolished to build the mosque because there is time gap of about 4 centuries and no records of what happened in this particular time period exist.

Historical records of Chiefly Tieffenthaler and account of Montgomery Martin of the 8th century have been considered. From their records it could be inferred that people had faith and belief that disputed site was place of birth of Lord Ram. The places like Sita Rasoi, Swargdaur and Bedi (cradle) which symbolises birth of Lord Ram was present in and around the disputed site. Practise of worship including parikrama of many devotees during religious festivals was also evident and same was the situation before the annexation of Oudh by the British and the construction of brick wall in 1857.

The evidence relied on by the Sunni Central Waqf board establishes that people of Muslim religious group commenced offering namaz around 1856-57 whereas evidences highlight that people of Hindu religious group have been offering worship prior to 1857 and existence of Islamic structure also did not shake up their belief and faith.

The grill- brick wall was built by the colonial British administration to end the communal violence between the two religious groups but it does not mean that the disputed property was sub- divided or any one of group was given the title.

In or about 1877 another door for the entry in the outer- courtyard was opened by administration on the northern side in addition to the existing eastern door in public interest. This recognises the presence of large number of Hindu devotees coming to offer worship. Presence of devotees in large number on the occasions such as Ram Navami, Sawan Jhoola, Kartik Poornima, Parikrama Mela and Ram Vivah has been proved.

Hindu witnesses have stated that they also used to worship the Kasturi pillar inside the mosque and many Muslim witnesses have agreed that many symbols of Hindu religion are present both inside and outside the mosque like depiction of Varah, Jai- Vijay and Garud.

In the light of above evidences and witness the land has been dedicated for the construction of temple at the disputed site but keeping in mind the secular nature and the principle of co- existence the order of allotting a land in Ayodhya for the construction of mosque has also been given.

[1] Masjid Shahid Ganj Mosque v. Shiromani Gurudwara Parbandhak (1940) 42 BOMLR 110 [2] Krishnaji Ketkar v. Mahomed Jaffar Mohammed Hussein AIR 1954 SC 5

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