SC: Complete analysis of the Ayodhya Verdict including key observations

The Ayodhya Verdict

 

 as given by Hon’ble CJI RANJAN GOGOI, Hon’ble CJI Designate S A BOBDE,  Hon’ble Justice DR DHANANJAYA Y CHANDRACHUD, Hon’ble Justice ASHOK BHUSHAN, Hon’ble Justice S ABDUL NAZEER on 9th November 2019.

Main question before the Hon’ble Supreme Court

Whether site of disputed structure where Babri Masjid was constructed is the place of birth of Lord Ram or not ?

The faith and belief of Hindus regarding location of birthplace of Lord Ram is from scriptures and sacred religious books including Valmiki Ramayana and Skanda Purana, which faith and beliefs, cannot be held to be groundless. Thus, it is found that in the period prior to 1528 A.D., there was sufficient religious texts, which led the Hindus to believe the present site of Ram Janma Bhumi as the birthplace of Lord Ram. (Para 72 of Adenda to Judgement)

Documentary evidence are testimonial of faith and belief of the Hindus that the Mosque was on the janamsthan of Lord Ram. Their protest, persistence and actions to worship within the Mosque is testimony of their continued faith and belief that premises of the Mosque is Janmasthan of Lord Ram. (Para 135 of Adenda to Judgement)

Oral evidence clearly supports the faith and belief of Hindus that Lord Ram was born at the place where Babri Mosque has been constructed. The conclusion that place of birth of Lord Ram is the three- dome structure can, therefore, be reached. (Para 167 of Adenda to Judgement)

The sequence of the events clearly indicate that faith and belief of Hindus was that birth place of Lord Ram was in the three-dome structure Mosque which was constructed at the janamasthan. It was only during the British period that grilled wall was constructed dividing the walled premises of the Mosque into inner courtyard and outer courtyard. Grilled iron wall was constructed to keep Hindus outside the grilled iron wall in the outer courtyard. (Para 169 of Adenda to Judgement)

Faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence (Para 170 of Adenda to Judgement)

The Dispute – in brief

Ownership over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The disputed land formed part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad.

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 events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime. An old structure of a mosque existed at the site until 6 December 1992. The Hindus 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 by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.

 

Timeline of events

In 1856-57, riots broke out between Hindus and Muslims in the vicinity of the structure. The colonial government attempted to raise a buffer between the two communities to maintain law and order by set ting up a grill-brick wall having a height of six or seven feet. This would divide the premises into two parts: the inner portion which would be used by the Muslim community and the outer portion or courtyard, which would be used by the Hindu community.

In 1877, another door was opened on the northern side of the outer courtyard by the colonial government, which was given to the Hindus to control and manage.

In January 1885, Mahant Raghubar Das, claiming to be the Mahant of Ram Janmasthan instituted a suit before the Sub-Judge, Faizabad. The relief which he sought was permission to build a temple on the Ramchabutra situated in the outer courtyard, measuring seventeen feet by twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885, the trial judge dismissed the suit, noting that there was a possibility of riots breaking out between the two communities due to the proposed construction of a temple. On 18 March 1886, the District Judge dismissed the appeal against the judgment of the Trial Court. On 1 November 1886, the Judicial Commissioner of Oudh dismissed the second appeal.

In 1934, the domed structure of the mosque was damaged in a conflagration between Hindus and Muslims. However it was subsequently repaired at the cost of the colonial government.

A series of incidents took place between March and December 1949. On 19 March 1949, a deed was executed by the Panches of Nirmohi Akhara purportedly to reduce into writing the customs of the Akhara.

The last namaz which was offered in the mosque was on 16 December 1949.

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 Additional City Magistrate, Faizabad-cum- Ayodhya issued a preliminary order under Section 145 of the Code of Criminal Procedure 1898, treating the situation to be of an emergent nature.

On 5 January 1950, Priya Datt Ram, the Chairman of the Municipal Board of Faizabad took charge of the inner courtyard and prepared an inventory of the attached properties.

On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal Singh Visharad before the Civil Judge at Faizabad, alleging that he was being prevented by officials of the government from entering the inner courtyard of the disputed site to offer worship. A declaration was sought to allow the plaintiff to offer prayers in accordance with the rites and tenets of his religion (Sanatan Dharm) at the main Janmabhumi, near the idols, within the inner courtyard, without hindrance.

On 17 December 1959 The Nirmohi Akhara (who represent a religious sect amongst the Hindus) instituted a suit through its Mahant before the Civil Judge at Faizabad claiming that its ―absolute right‖ of managing the affairs of the Janmasthan and the temple had been impacted by the Magistrate‘s order of attachment and by the appointment of a receiver under Section 145. A decree was sought to hand over the management and charge of the temple to the plaintiff.

On 18 December 1961, the Sunni Central Waqf Board and nine Muslim residents of Ayodhya filed a suit before the Civil Judge at Faizabad seeking a declaration that the entire disputed site of the Babri Masjid was a public mosque and for the delivery of possession upon removal of the idols.

On 25 January 1986, an application was filed by one Umesh Chandra before the Trial Court for breaking open the locks placed on the grill-brick wall and for allowing the public to perform darshan within the inner courtyard. On 1 February 1986, the District Judge issued directions to open the locks and to provide access to devotees for darshan inside the structure. In a Writ Petition filed before the High Court challenging the above order, an interim order was passed on 3 February 1986 directing that until further orders, the nature of the property as it existed shall not be altered.

On 1 July 1989, a Suit was brought before the Civil Judge, Faizabad by the deity (Bhagwan Shri Ram Virajman) and the birth-place (Asthan Shri Ram Janam Bhumi, Ayodhya), through a next friend for a declaration of title to the disputed premises and to restrain the defendants from interfering with or raising any objection to the construction of a temple.

On 10 July 1989, all suits were transferred to the High Court of Judicature at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief Justice of the High Court for the trial of the suits. On an application by the State of Uttar Pradesh, the High Court passed an interim order on 14 August 1989, directing the parties to maintain status quo with respect to the property in dispute.

During the pendency of the proceedings, the State of Uttar Pradesh acquired an area of 2.77 acres comprising of the disputed premises and certain adjoining areas. This was effected by notifications dated 7 October 1991 and 10 October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894. The acquisition was for development and providing amenities to pilgrims in Ayodhya. A Writ Petition was filed before the High Court challenging the acquisition. By a judgment and order dated 11 December 1992, the acquisition was set aside.

On 6 December 1992. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A makeshift structure of a temple was constructed at the place under the erstwhile central dome. The idols were placed there.

The Central Government acquired an area of about 68 acres, including the premises in dispute, by a legislation called the Acquisition of Certain Area at Ayodhya Act 1993. Writ petitions were filed before the High Court of Allahabad and The Supreme Court, challenging the validity of the Act. All the petitions and the reference by the President were heard together and decided by a judgment dated 24 October 1994 as per which the Central Government was appointed as a statutory receiver for the maintenance of status quo and to hand over the disputed area in terms of the adjudication to be made in the suits.

The recording of oral evidence before the High Court commenced on 24 July 1996. During the course of the hearings, the High Court issued directions on 23 October 2002 to the Archaeological Survey of India to carry out a scientific investigation and have the disputed site surveyed by Ground Penetrating Technology or Geo-Radiology. On 22 August 2003, the ASI submitted its final report.

The High Court had before it 533 exhibits and depositions of 87 witnesses traversing 13,990 pages. Besides this, counsel relied on over a thousand reference books in Sanskrit, Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as diverse as history, culture, archaeology and religion.

On 30 September 2010, the Full Bench of the High Court comprising of Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the judgment. 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.

On 9 May 2011, a two judge Bench of The Supreme Court, admitted several appeals and stayed the operation of the judgment and decree of the Allahabad High Court. During the pendency of the appeals, parties were directed to maintain status quo with respect to the disputed premises.

On 10 September 2013, 24 February 2014, 31 October 2015 and 11 August 2017, the Supreme Court issued directions for summoning the digital record of the evidence and pleadings from the Allahabad High Court and for furnishing translated copies to the parties.

On 10 August 2015, a three judge Bench of the Supreme Court allowed the Commissioner, Faizabad Division to replace the old and worn out tarpaulin sheets over the makeshift structure under which the idols were placed with new sheets of the same size and quality.

On 26 February 2019, the Supreme Court referred the parties to a Court appointed and monitored mediation to explore the possibility of bringing about a permanent solution to the issues raised in the appeals.

On 8 March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed Ibrahim Kalifulla, (ii) Sri Sri Ravi Shankar; and (iii) Mr Sriram Panchu, Senior Advocate was constituted.

Time granted to the mediators to complete the mediation proceedings was extended on 10 May 2019.

Since no settlement had been reached, on 2 August 2019, the hearing of the appeals was directed to commence from 6 August 2019.

Final arguments were concluded on 16 October 2019.

 

Net result of Evidentiary Record

 

  • The disputed site is one composite whole. The railing set up in 1856-7 did not either bring about a sub-division of the land or any determination of title;
  • The Sunni Central Waqf Board has not established its case of a dedication by user;
  • The alternate plea of adverse possession has not been established by the Sunni Central Waqf Board as it failed to meet the requirements of adverse possession;
  • The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship;
  • The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims;
  • The existence of the structure of the mosque until 6 December 1992 does not admit any contestation. The evidence indicates that there was no abandonment of the mosque by Muslims. Namaz was observed on Fridays towards December 1949, the last namaz being on 16 December 1949;
  • The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century. After the setting up of the grill-brick wall, the structure of the mosque continued to exist and there is evidence to indicate that namaz was offered within its precincts.
  • The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship. After the proceedings under Section 145 of CrPC 1898 were initiated and a receiver was appointed following the attachment of the inner courtyard, worship of the Hindu idols was permitted. During the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.
  • The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law;
  • Though on a balance of probabilities, the evidence in respect of the 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 on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims.

Key Observations

The Supreme Court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper. (Para 77)

In the plural diversity of religious beliefs as they are practiced in India, cultural assimilation cannot be construed as a feature destructive of religious doctrine. (Para 77)

The law is a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. (Para 82)

The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future. (Para 83)

 

…….On legal personality / juristic identity of Idols and proprietary rights vested in Idols

The foundational principle of a legal system is that it must recognise the subjects it seeks to govern. This is done by the law recognising distinct legal units or legal persons. (Para 88)

To be a legal person is to be recognised by the law as a subject which embodies rights, entitlements, liabilities and duties. The law may directly regulate the behaviour of legal persons and their behaviour in relation to each other. Therefore, 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. (Para 88)

Who or what is a legal person is a function of the legal system. The ability to create or recognise legal persons has always varied depending upon historic circumstances. The power of legal systems to recognise and hence also to deny legal personality has been used over history to wreak fundamental breaches of human rights. (Para 88)

Legal personality is not human nature. Legal personality constitutes recognition by the law of an object or corpus as an embodiment of certain rights and duties. Rights and duties which are ordinarily conferred on natural persons are in select situations, conferred on inanimate objects or collectives, leading to the creation of an artificial legal person. An artificial legal person is a legal person to the extent the law recognises the rights and duties ascribed to them, whether by statute or by judicial interpretation. (Para 90)

At a purely theoretical level, there is no restriction on what legal personality may be conferred. What is of significance is the purpose sought to be achieved by conferring legal personality. To the extent that this purpose is achieved, legal personality may even be conferred on an abstract idea. (Para 91)

The question whether legal personality is conferred on a ship, idol, or tree is a matter of what is legally expedient and the object chosen does not determine the character of the legal personality conferred. The character of the legal personality conferred is determined by the purpose sought to be achieved by conferring legal personality. There is thus a distinction between legal personality and the physical corpus which then comes to represent the legal personality. By the act of conferring legal personality, the corpus is animated in law as embodying a distinct legal person possessing certain rights and duties. (Para 91)

The most widely recognised artificial legal person is the corporation in Company law. However, for the purposes of understanding the circumstances under which courts have conferred legal personality, the example of the corporation is of limited use. The idea of treating a collective of individuals as a single unit for the purposes of identification in law is as old as human civilisation itself. (Para 93)

Legal personality does not denote human nature or human attributes. Legal personality is a recognition of certain rights and duties in law. An object, even after the conferral of legal personality, cannot express any will but it represents certain interests, rights, or benefits accruing to natural persons. Courts confer legal personality to overcome shortcomings perceived in the law and to facilitate practical adjudication. By ascribing rights and duties to artificial legal persons (imbued with a legal personality), the law tackles and fulfils both necessity and convenience. By extension, courts ascribe legal personality to effectively adjudicate upon the claims of natural persons deriving benefits from or affected by the corpus upon which legal personality is conferred. The corollary of this principle is that the rights ascribed by courts to the corpus are limited to those necessary to address the existing shortcomings in the law and efficiently adjudicate claims. (Para 100) 

All legal units are not alike. The conferral of legal personality sub-serves specific requirements that justify its recognition. The conferral of juristic personality 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. The limits or boundaries of the rights ascribed to the new legal person must be guided by the reasons for conferring legal personality. The parameters of judicial innovation are set by the purpose for which the judge innovates. (Para 101)

At the outset, it is important to understand that the conferral of legal personality on a Hindu idol is not the conferral of legal personality on divinity itself, which in Hinduism is often understood as the  “Supreme Being”. The Supreme Being defies form and shape, yet its presence is universal. In the law of Hindu endowments, it has often been stated that legal personality is conferred on the  ‘purpose behind the idol‘. (Para 102)

The idea of a legal person is premised on the need to  ‘identify the subjects’ of the legal system. An omnipresent being is incapable of being identified or delineated in any manner meaningful to the law and no identifiable legal subject would emerge. (Para 104)

Legal personality is not conferred on the Supreme Being. The Supreme Being has no physical presence for it is understood to be omnipresent – the very ground of being itself. The court does not confer legal personality on divinity. Divinity in Hindu philosophy is seamless, universal and infinite. Divinity pervades every aspect of the universe. The attributes of divinity defy description and furnish the fundamental basis for not defining it with reference to boundaries – physical or legal. For the reason that it is omnipresent it would be impossible to distinguish where one legal entity ends and the next begins. The narrow confines of the law are ill suited to engage in such an exercise and it is for this reason, that the law has steered clear from adopting this approach. In Hinduism, physical manifestations of the Supreme Being exist in the form of idols to allow worshippers to experience a shapeless being. The idol is a representation of the Supreme Being. The idol, by possessing a physical form is identifiable. (Para 104)

This juridical person (i.e. the pious purpose represented by the idol) can in law accept offerings of movable and immovable property which will vest in it. The 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. (Para 111)

The idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. The destruction of the idol does not result in the termination of the pious purpose and consequently the endowment. Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist. (Para 116)

In our country, idols are routinely submerged in water as a matter of religious practice. It cannot be said that the pious purpose is also extinguished due to such submersion. The establishment of the image of the idol is the manner in which the pious purpose is fulfilled. A conferral of legal personality on the idol is, in effect, a recognition of the pious purpose itself and not the method through which that pious purpose is usually personified. The pious purpose may also be fulfilled where the presence of the idol is intermittent or there exists a temple absent an idol depending on the deed of dedication. In all such cases the pious purpose on which legal personality is conferred continues to subsist. (Para 116)

Where the dedication is for an idol to be worshipped, the interests of present and future devotees would be at risk in the absence of a legal framework which ensured the regulation of the dedication made. The conferment of legal personality on the pious purpose ensured that there existed an entity in which the property would vest in an ideal sense, to receive the dedication and through whom the interests of the devotees could be protected. This was for the purpose of fulfilling the object of the dedication and through the performance of worship in accordance with religious texts, ensuring that the devotees realised peace through prayer. (Para 119)

Being the physical manifestation of the pious purpose, even where the idol is submerged, not in existence temporarily, or destroyed by forces of nature, the pious purpose recognised to be a legal person continues to exist. (Para 121)

The recognition of the Hindu idol as a legal or ―juristic person is therefore based on two premises employed by courts. The first is to recognise the pious purpose of the testator as a legal entity capable of holding property in an ideal sense absent the creation of a trust. The second is the merging of the pious purpose itself and the idol which embodies the pious purpose to ensure the fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person. The property endowed to the pious purpose is owned by the idol as a legal person in an ideal sense.(Para 123)

The faith and belief of the Hindu devotees is a matter personal to their conscience and it is not for this Court to scrutinise the strength of their convictions or the rationality of their beliefs beyond a prima facie examination to ascertain whether such beliefs are held in good faith. (Para 125)

For the purposes of recognising a legal person, the relevant inquiry is the purpose to be achieved by such recognition. To the extent such purpose is achieved, the form or corpus of the object upon which legal personality is conferred is not a matter of substance but merely a question of form. (Para 127)

In the case of Hindu idols, legal personality is not conferred on the idol simpliciter but on the underlying pious purpose of the continued worship of the deity as incarnated in the idol. Where the legal personality is conferred on the purpose of a deity‘s continued worship, moving or destroying the idol does not affect its legal personality. The legal personality vests in the purpose of continued worship of the idol as recognised by the court. It is for the protection of the continued worship that the law recognises this purpose and seeks to protect it by the conferral of juristic personality. (Para 127)

The law thus protects the properties of the idol even absent the establishment of a specific or express trust. (Para 128)

The existence of the idol is merely a question of form, or corpus, and the legal personality of Bhagwan Sri Ram Virajman at Sri Ram Janmabhumi, Ayodhya also called Bhagwan Sri Ram Lalla Virajman is not dependent on the continued existence of the idol. (Para 129)

It is not the property endowed which is a juridical person – it is the idol which as an embodiment of a pious purpose which is recognised as a juristic person, in whom the property stands vested. (Para 138)

There is a distinction between the ownership of the property by the temple, and the conferral of legal personality on land. Where land is owned by a person, it cannot be a juristic person, for no person can own a deity as a juristic person. (Para 143)

The performance of the parikrama, which is a form of worship conducted as a matter of faith and belief cannot be claimed as the basis of an entitlement in law to a proprietary claim over property. (Para 164)

The conferral of legal personality by courts is an innovation arising out of necessity and convenience. (Para 174)

An idol is not a pre-requisite for the existence of a juristic person. Where there exists an express deed of dedication, the legal personality vests in the pious purpose of the founder. The idol is the material embodiment of the pious purpose and is the site of jural relations. (Para 186)

Even if a testator were to make a dedication to a religious purpose but the idol did not exist at the time the dedication was made or the manifestation of the divine was not in the form of the idol, but in the form of some other object of religious significance, the legal personality would continue to vest in the pious purpose of the dedication itself. (Para 186)

It is true that in matters of faith and belief, the absence of evidence may not be evidence of absence. (Para 192)

Absent a manifestation, recognising the land as a self-manifested deity would open the floodgates for parties to contend that ordinary land which was witness to some event of religious significance associated with the human incarnation of a deity (e.g. the site of marriage, or the ascent to a heavenly abode) is in fact a Swayambhu deity manifested in the form of land. (Para 192)

In order to provide a sound jurisprudential basis for the recognition of a Swayambhu deity, manifestation is crucial. Absent that manifestation which distinguishes the land from other property, juristic personality cannot be conferred on the land. (Para 192)

Where the law is capable of adequately protecting the interests of the devotees and ensuring the accountable management of religious sites without the conferral of legal personality, it is not necessary to embark on the journey of creating legal fictions that may have unintended consequences in the future. (Para 200)

The purpose for which juristic personality is conferred cannot be  ̳evolved‘ into a trojan horse that permits, on the basis of religious faith and belief, the extinguishing of all competing proprietary claims over property as well stripping the property itself of the essential characteristic of immoveable property. (Para 201)

The conferral of legal personality on corporeal property would immunise property not merely from competing title claims, but also render vast swathes of the law that are essential for courts to meaningfully adjudicate upon civil suits, such as limitation, ownership, possession and division, entirely otiose. (Para 201)

The conferral of legal personality on idols stemming from religious endowments is a legal development applicable only to a practice of the Hindu community. (Para 202)

 

…….On religion, faith and belief

Religious diversity undoubtedly requires the protection of diverse methods of offering worship and performing religious ceremonies. However, that a method of offering worship unique to one religion should result in the conferral of an absolute title to parties from one religion over parties from another religion in an adjudication over civil property claims cannot be sustained under our Constitution. This would render the law, which ought to be the ultimate impartial arbiter, conferring a benefit on a party with respect to her or his legal claims, not on the basis of the merits of a particular case, but on the basis of the structure or fabric of the religion to which they belong. (Para 203)

Secularism cannot be a writ lost in the sands of time by being oblivious to the exercise of religious freedom by everyone. (Para 204)

The court cannot adopt a position that accords primacy to the faith and belief of a single religion as the basis to confer both judicial insulation as well as primacy over the legal system as a whole. (Para 205)

Matters of faith and belief lie in the personal realm of the believer. That which sustains solace to the soul is inscrutable. Whether a belief is justified lies beyond ken of judicial inquiry. (Para 555)

Once the witnesses have deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief. Scriptural interpretations are susceptible to a multitude of inferences. The court would do well not to step into the pulpit by adjudging which, if any, of competing interpretations should be accepted. Faith is a matter for the individual believer. Once the court has intrinsic material to accept that the faith or the belief is genuine and not a pretence, it must defer to the belief of the worshipper. (Para 555)

…….On written submissions filed in an appeal

Written submissions filed in the appeal cannot be a valid basis to reconfigure the nature of the suit. The suit has to be read on the basis of the original plaint in the trial court. (Para 253)

…….On continuing wrong within the meaning of Section 23 of the Limitation Act, 1908

In assessing the submission based on the principle of continuing wrong as a defence to a plea of limitation, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, where positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. (Para 267)

In evaluating whether there is a continuing wrong within the meaning of Section 23 of the Limitation Act 1908, the mere fact that the effect of the injury caused has continued is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation. (Para 267)

…….On shebait

Ordinarily, the right to sue on behalf of the idol vests in the shebait. This does not however mean that the idol is deprived of its inherent and independent right to sue in its own name in certain situations. The property vests in the idol. A right to sue for the recovery of property is an inherent component of the rights that flow from the ownership of property. The shebait is merely the human actor through which the right to sue is exercised. As the immediate protector of the idols and the exclusive manager of its properties, a suit on behalf of the idol must be brought by the shebait alone. Where there exists a lawfully appointed shebait who is able and willing to take all actions necessary to protect the deity‘s interests and to ensure its continued protection and providence, the right of the deity to sue cannot be separated from the right of the shebait to sue on behalf of the deity. In such situations, the idol‘s right to sue stands merged with the right of the shebait to sue on behalf of the idol. (Para 337)

A suit by a shebait on behalf of an idol binds the idol. For this reason, the question of who can sue on behalf of an idol is a question of substantive law. Vesting any stranger with the right to institute proceedings on behalf of the idol and bind it would leave the idol and its properties at the mercy of numerous individuals claiming to be  ̳next friend‘. Therefore, the interests of the idol are protected by restricting and scrutinising actions brought on behalf of the idol. For this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When a lawful shebait sues on behalf of the deity, the question whether the deity is a party to the proceedings is merely a matter of procedure. As long as the suit is filed in the capacity of a shebait, it is implicit that such a suit is on behalf of and for the benefit of the idol. (Para 338)

A necessary adjunct of managing of the temple properties is the right to sue for recovery of the said properties. Ordinarily a shebait alone will be entitled to bring a suit on behalf of the idol. In addition to being convenient and providing immediate recourse for the idol, it also provides a valuable check against strangers instituting suits, the outcomes of which may adversely impact the idol without the knowledge of the idol or the shebait. But there may be cases where the conduct of a shebait is in question. In certain cases, where the shebait itself is negligent or sets up a claim hostile to the idol, it is open for a worshipper or a next friend interested in protecting the properties of the idol to file a suit to remedy the situation. (Para 341)

A worshipper can institute a suit to protect the interests of the deity against a stranger where a shebait is negligent in its duties or takes actions that are hostile to the deity. (Para 346)

Where a shebait acts prejudicially to the deity‘s interests, there thus exist two views on the remedies available to the interested worshipper. One position is that a worshipper can sue as a next friend on behalf of the deity. As next friend, the worshipper directly exercises the deity‘s right to sue. The alternative view is that a worshipper can file a suit in a personal capacity to protect the deity‘s interests but cannot sue directly on behalf of the deity although the suit may be for the benefit of the deity. In this view, the deity is not bound by the suit of the worshippers unless the remedy provided is in rem in nature. (Para 348)

A suit by a worshipper in their personal capacity cannot however canvas the range of threats the idol may face at the hands of a negligent shebait and it may be necessary for the court to permit the next friend to sue on behalf of the idol itself to adequately protect the interests of the idol. (Para 350)

Where the interests of the idol need to be protected, merely permitting interested worshippers to sue in their personal capacity does not afford the deity sufficient protections in law. In certain situations, a next friend must be permitted to sue on behalf of the idol – directly exercising the deity‘s right to sue. (Para 351)

The idol and its properties must be protected against the threat of a wayward  ‘next friend’. Where the shebait acts in a mala fide manner, any person claiming to be a  ‘next friend’ may sue. Such a person may in truth have intentions hostile to the deity and sue under false provenance. Even a well-intentioned worshipper may sue as a next friend and purely due to financial constraints or negligence lose the suit and adversely bind the deity. (Para 352)

The deity‘s interests would be sufficiently protected if, in cases where the bona fides of the next friend are contested by another party, the court substantively examines whether the next friend is fit to represent the idol. In an appropriate case, the court can do so of its own accord where it considers it necessary to protect the interest of the deity. In the absence of any objection, and where a court sees no deficiencies in the actions of the next friend, there is no reason why a worshipper should not have the right to sue on behalf of the deity where a shebait abandons his sacred and legal duties. Therefore, 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. (Para 353)

It is true that where the fitness of the next friend is in dispute the court should scrutinise the bona fides of the next friend. However, a bare allegation that is not substantiated with any evidence does not constitute a contest to the bona fides of the next friend. (Para 355)

(Para 358) Where there exists an express deed of dedication identifying the shebait, the position in law with respect to who can sue on behalf of an idol is as follows:

  • The right to sue vests exclusively in the lawfully appointed shebait; however,
  • Where the shebait acts in a manner negligent or hostile to the interests of the idol through express action or inaction, any person who is interested in the endowment may institute a suit on behalf of the idol; and
  • The exact nature of the interest possessed by the next friend, and whether the next friend is bona fide are matters of substantive law. If contested, it must be adjudicated upon by the court.

Where a person claims to be a shebait despite the lack of a legal title, the relevant enquiry before the Court is whether the person was in actual possession of the debutter property and was exercising all the rights of a shebait. The paramount interest in the protection of the debutter property underlines the recognition of a de facto shebait. Where there is no de jure shebait, the court will not countenance a situation where a bona fide litigant who has exercised all the managerial rights over the debutter property cannot be recognised in law as the protector of the property. It is only for the paramount interest of the institution that the right to sue is conceded to persons acting as managers though lacking a legal title of a manager. (Para 365)

Consistent with the jurisprudence on the rights of a shebait with respect to the properties of an endowment, a de facto shebait is entrusted with the power and the duty to carry out the purpose of the debutter in respect of the idol and its properties. 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. (Para 369)

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. A claim raised by a shebait adverse to the idol defeats the very purpose for which shebaits are vested with the right to manage the idol and its properties. (Para 369)

A de facto shebait is vested with the right to manage the debutter property and bring actions on behalf of the idol. A bona fide action for the benefit of the idol binds it and its properties. As compared to a de jure shebait whose rights can legally be traced to a deed of endowment, a de facto shebait is vested with the right by mere possession and exercise of management rights. The protection of the idol‘s properties is at the heart of this extraordinary conferral of rights.(Para 372)

The duties that bind the exercise of powers of a de jure shebait apply equally to a de facto shebait. Thus, no action can be brought by the de facto shebait which is not in the beneficial interest of the idol or its properties. (Para 373)

A de jure shebait can be removed from office only on the grounds of mismanagement or claiming an interest adverse to the idol. However, no such averment is required to remove a de facto shebait. A de jure shebait may, unless the right of the de facto shebait has been perfected by adverse possession, displace a de facto shebait from office and assume management of the idol at any point. (Para 373)

It is for the limited purpose of bringing an action for the protection of the idol that the rights and powers of the de facto shebait are the same as that of the de jure shebait. (Para 373)

A person claiming to be a de facto shebait can never set up a claim adverse to that of the idol and claim a proprietary interest in the debutter property. Where a person claims to be the de facto shebait, the right is premised on the absence of a person with a better title i.e. a de jure manager. It must be shown that the de facto manager is in exclusive possession of the trust property and exercises complete control over the right of management of the properties without any hindrance from any quarters. The person is, for all practical purposes, recognised as the person in charge of the trust properties. Recognition in public records as the manager would furnish evidence of being recognised as a manager. (Para 376)

Significantly, a single or stray act of management does not vest a person with the rights of a de facto shebait. The person must demonstrate long, uninterrupted and exclusive possession and management of the property. What period constitutes a sufficient amount is determined on a case to case basis. The performance of religious worship as a pujari is not the same as the exercise of the rights of management. A manager may appoint one or several pujaris to conduct the necessary ceremonies. In the ultimate analysis, the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each case. The acts which form the basis of the rights claimed as a shebait must be the same as exercised by a de jure shebait. (Para 377)

A de facto shebait is vested with the right to institute suits on behalf of the deity and bind its estate provided this right is exercised in a bona fide manner. (Para 377)

Even absent an averment of mismanagement by the shebait, a person may institute proceedings under Section 92 of the Code of Civil Procedure 1908 against a de facto shebait for the settling of a scheme. (Para 378)

The shebait is the human ministrant and custodian of the idol and acts as its authorised representative. The shebait is vested with the right to bring an action on behalf of the deity and bind it. (Para 400)

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. For all practical purposes, this person is recognised as the person in charge of the trust properties. (Para 401)

A pujari is merely a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted ceremonies over a period of time. (Para 404)

  

…….On Limitation

The dictum that the idol is in the position of a minor cannot be construed to mean that the idol is exempt from the application of the Limitation Act 1963. (Para 414)

Article 47 of the Limitation Act 1908 applies only in a situation where a Magistrate has passed an order respecting the possession of immoveable property. When no order regarding possession of immovable property which is the subject matter of a proceeding under Section 145 has been passed, the suit shall not be of the description specified in the first column. It is only if the Magistrate has passed such an order that the suit would meet the description specified, and in which event Article 47 would govern. However, though Article 47 is not attracted, a person aggrieved by the order of attachment may file a suit for declaration of his right. On the determination of the right by the civil court, he would become entitled for possession and the Magistrate is duty bound to hand over possession in accordance with the order of the civil court.(Para 621)

Article 120 of the Limitation Act 1908 deals with suits for which no period of limitation is provided elsewhere in the schedule. Article 120 is in the nature of a residuary provision. Hence, where a specific article in the schedule applies, the residuary article can possibly have no application and it is only when the suit does not fall within the description specified in any other article that the residuary provision would govern. (Para 622)

 

…….On Section 11 of CPC, 1908

To attract Explanation VI to Section 11 of CPC, 1908, it is necessary that there must be a bona fide litigation in which there is a claim in respect of a public right or a private right claimed in common together with others. It is only then that all persons who are interested in such a right would be deemed, for the purpose of the Section, to claim under the persons so litigating. (Para 439)

 

…….On Order XXVI of CPC

Rule 10 of Order XXVI , CPC does not abrogate the right to question the report of a Commissioner if the enabling power of calling the Commissioner for cross-examination is not exercised. A party may avail of that opportunity by seeking the examination of the Commissioner on matters bearing upon the report. A party may also lead evidence of its own witnesses who seek to controvert the methodology or the findings of the Commissioner appointed for conducting a scientific investigation. The right of a party to object to the report of the Commissioner is not abrogated merely because the Commissioner is not called for cross-examination. Much will depend on the nature of the objections which are sought to be urged by a party before the Court though the Commissioner was not called for examination. (Para 478)

……On judicial discretion

Common sense ought to guide the exercise of judicial discretion, here as in other branches of the law. (Para 483)

 

……On Archaeology

Archaeology as a science draws on multi-disciplinary or trans-disciplinary approaches. In considering the nature of archaeological evidence, it is important to remember that archaeology as a branch of knowledge draws sustenance from the science of learning, the wisdom of experience and the vision which underlies the process of interpretation. As a discipline, it nurtures a trained mind. It relies on a cross-fertilization with other disciplines such as history, sociology and anthropology. This is not a weakness but a strength. (Para 490)

Archaeology combines both science and art. As a science, it is based on the principle of objective evaluation. As an art, it relies on a vision which is realised through years of commitment to the pursuit of knowledge based on the histories of eras. Archaeology as a discipline cannot be belittled as unreliable. The value of archaeology cannot be diluted in the manner which has been suggested by laying a claim to its being a weak form of evidence. (Para 490)

The supposed distinction between science as embodying absolute truth and archaeology as unguided subjectivity is one of degree not of universes. Yet as in other disciplines of its genre, archaeology is as much a matter of process as it is of deduction. The archaeologist must deal with recoveries as much as the  ‘finds’ from them. Interpretation is its heart, if not its soul. Interpretations do vary and experts disagree. (Para 492)

When the law perceives an exercise of interpretation it must recognize margins of error and differences of opinion. Archaeological findings are susceptible of multiple interpretations. This may in part be a function of the archaeologist‘s perception of the past and what about the past the archaeologist seeks to decipher. (Para 492)

……On evidentiary value of Official Gazettes and Historical Texts

A clear distinction must be drawn between relying on a gazetteereer to source a claim of title (which is impermissible) and as reference material on a matter of public history (which the court may consult to an appropriate extent with due circumspection). (Para 590)

A statement of fact contained in the Official Gazette made in the course of the discharge of official duties on private affairs or on historical facts in “some cases” is the best evidence of facts and is entitled to “due consideration”. However, it should not be treated as conclusive on matters requiring judicial adjudication. Questions of title raise issues for adjudication. Conflicting claims of title require judicial adjudication. Statements contained in a text of history or in a gazetteer cannot conclude the issue of title. (Para 590) 

The court may have due regard to appropriate books and reference material on matters, of public history. Yet, when it does so, the court must be conscious of the fact that the statements contained in travelogues as indeed in the accounts of gazetteers reflect opinions on matters which are not amenable to be tested by cross-examination at this distant point of time. Consequently, where there is a dispute pertaining to possession and title amidst a conflict of parties, historical accounts cannot be regarded as conclusive. The court must then decide the issue in dispute on the basis of credible evidentiary material. (Para 592)

The court must be circumspect in drawing negative inferences from what a historical text does not contain. (Para 593)

There are dangers in interpreting history without the aid of historiography. Application of legal principles to make deductions and inferences out of historical context is a perilous exercise. One must exercise caution before embarking on the inclination of a legally trained mind to draw negative inferences from the silences of history. Silences are sometimes best left to where they belong – the universe of silence. (Para 593)

While the gazetteers may provide to the court a glimpse on matters of public history, history itself is a matter of divisive contestation. While the court is not precluded from relying on the contents as relevant material, they must be read together with the evidence on the record in order to enable the court to enter its findings of fact in the course of the present adjudication. Above all, the court must sift matters which may be of a hearsay origin in its effort to deduce the kernel of truth which lies hidden in the maze of conflicting claims. Travellogues and gazetteers contain loose fragments of forgotten history. The evidentiary value to be ascribed to their contents necessarily depends upon the context and is subject to a careful evaluation of their contents. (Para 594)

…….On custodia legis

Where property is custodia legis, it is sufficient to seek a declaration of title. This is because the court receiver who is an officer of the court would hold the property for the party who is found, upon adjudication, to be entitled to possession. Since the receiver would be duty bound to hand over possession to whoever is held by the court to be entitled to the property, a formal prayer for seeking possession is not necessary. (Para 624)

 Once property is custodia legis, possession would necessarily follow the grant of the declaration upon the adjudication by the court. (Para 624)

…….On historical wrongs

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. The courts of today cannot take cognisance of historical rights and wrongs unless it is shown that their legal consequences are enforceable in the present. Thus, before this Court embarks on a lengthy historical enquiry, it is important to consider the extent to which acts done and rights accrued under previous legal regimes have legal consequences today under our present laws. (Para 633)

The mere existence of a structure underneath the disputed property cannot lead to a legally enforceable claim to title today. (Para 648)

This Court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. Our history is replete with actions that have been judged to be morally incorrect and even today are liable to trigger vociferous ideological debate. However, the adoption of the Constitution marks a watershed moment where we, the people of India, departed from the determination of rights and liabilities on the basis of our ideology, our religion, the colour of our skin, or the century when our ancestors arrived at these lands, and submitted to the rule of law. Under our rule of law, this court can adjudicate upon private property claims that were expressly or impliedly recognised by the British sovereign and subsequently not interfered with upon Indian independence. (Para 652)

…….On justice, equity and good conscience and Article 142

Where the rights of the parties are not governed by a particular personal law, or where the personal law is silent or incapable of being ascertained by a court, where a code has a lacuna, or where the source of law fails or requires to be supplemented, justice, equity and good conscience may properly be referred to. (Para 670) 

Where the existing statutory framework is inadequate for courts to adjudicate upon the dispute before them, or no settled judicial doctrine or custom can be availed of, courts may legitimately take recourse to the principles of justice, equity and good conscience to effectively and fairly dispose of the case. (Para 673)

A court cannot abdicate its responsibility to decide a dispute over legal rights merely because the facts of a case do not readily submit themselves to the application of the letter of the existing law. (Para 673)

After taking recourse to legal principles from varied legal systems, scholarly written work on the subject, and the experience of the Bar and Bench, if no decisive or just outcome could be reached, a judge may apply the principles of equity between the parties to ensure that justice is done. (Para 673)

The concept of  ‘justice, equity and good conscience’ as a tool to ensure a just outcome also finds expression in Article 142 of the Constitution of India. (Para 674)

The phrase ‘is necessary for doing complete justice’ in Article 142 of Constitution, is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require a close attention not just to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just. (Para 674)

The legal enterprise is premised on the application of generally worded laws to the specifics of a case before courts. The complexities of human history and activity inevitably lead to unique contests which the law, by its general nature, is inadequate to deal with. (Para 674)

Even where positive law is clear, the deliberately wide amplitude of the power under Article 142 empowers a court to pass an order which accords with justice. For justice is the foundation which brings home the purpose of any legal enterprise and on which the legitimacy of the rule of law rests. (Para 674)

The equitable power under Article 142 of the Constitution brings to fore the intersection between the general and specific. Courts may find themselves in situations where the silences of the law need to be infused with meaning or the rigours of its rough edges need to be softened for law to retain its humane and compassionate face. Above all, the law needs to be determined, interpreted and applied in this case to ensure that India retains its character as a home and refuge for many religions and plural values. (Para 674)

It is in the cacophony of its multi-lingual and multi-cultural voices, based on a medley or regions and religions, that the Indian citizen as a person and India as a nation must realise the sense of peace within. It is in seeking this ultimate balance for a just society that we must apply justice, equity and good conscience. It is in these situations, that courts are empowered to ensure a just outcome by passing an order necessary to ensure complete justice between the parties. (Para 674)

Where rigidity is considered inadequate to address a situation, the plenary power of Supreme Court for doing complete justice is an appeal of last resort to the inherent quality of equity that the law is designed to protect, to ensure that the Court is empowered to craft a relief that comports with both reason and justice. (Para 675)

The extraordinary constitutional power to pass any decree or an order which, in the opinion of this Court is necessary for doing complete justice embodies the idea that a court must, by necessity, be empowered to craft outcomes that ensure a just outcome. (Para 676)

Where exclusive rule-based theories of law and adjudication are inadequate to explain either the functioning of the system or create a relief that ensures complete justice, it is necessary to supplement such a model with principles grounded in equitable standards. (Para 676)

Article 142 of Constitution of India embodies both the notion of justice, equity and good conscience as well as a supplementary power to the court to effect complete justice. (Para 676)

Supreme Court in in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. (Para 800) 

 

…….On wakfs

A waqf is a dedication of movable or immovable property for a religious or charitable purpose recognised by Muslim law. Ordinarily, a waqf is brought into existence by an express act of dedication in the form of a declaration. Upon pronouncing the declaration, the property sought to be dedicated is divested from the wakif as the person making the dedication and vests in the Almighty, Allah. A waqf is a permanent and irrevocable dedication of property and once the waqf is created, the dedication cannot be rescinded at a later date. The property of a validly created waqf is inalienable and cannot be sold or leased for private gain. (Para 732)

Muslim law does not require an express declaration of a Waqf in every case. The dedication resulting in a waqf may also be reasonably inferred from the facts and circumstances of a case or from the conduct of the wakif. In the absence of an express dedication, the existence of a waqf can be legally recognised in situations where property has been the subject of public religious use since time immemorial. (Para 733)

A specific document of dedication may be unavailable after a long lapse of time but the use of the property for public religious or charitable purpose may have continued since time immemorial. Hence, despite the absence of an express deed of dedication, where the long use of the property as a site for public religious purpose is established by oral or documentary evidence, a court can recognise the existence of a waqf by user. The evidence of long use is treated as sufficient though there is no evidence of an express deed of dedication. (Para 736)

It is a “matter of inference” for the court, having examined the evidence on record, to determine whether the use of the property has been for sufficiently long and consistent with the purported use to justify the recognition of a public waqf absent an express dedication. Given the irrevocable, permanent and inalienable nature of a waqf, the evidentiary threshold for establishing a waqf by user is high, as it results in a radical change in the characteristics of ownership over the property. (Para 737)

Our jurisprudence recognises the principle of waqf by user even absent an express deed of dedication or declaration. Whether or not properties are waqf property by long use is a matter of evidence. The test is whether the property has been used for public religious worship by those professing the Islamic faith. The evidentiary threshold is high, in most cases requiring evidence of public worship at the property in question since time immemorial. (Para 739)

Once a property is recognised as waqf, the property is permanently and irrevocably vested in the Almighty, Allah from the date the waqf is deemed to be in existence. The land is rendered inalienable and falls within the regulatory framework of waqf legislation and Islamic law. (Para 743)

The doctrine of waqf by user is a doctrine of necessity to deal with cases where a property has been the site of long and consistent religious use by members of the Islamic faith but the original dedication is lost to the sands of time. Given the radical alterations to the characteristics of ownership of the property consequent upon a recognition of a waqf by user, the evidentiary burden to prove a waqf by user is high. (Para 743)

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. (Para 745)

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. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence. (Para 748)

Any attempt to define possession must be context specific. A uniform formulation of principle of universal application is elusive to the grasp. The difficulty lies in converting myriad factual situations, replete with their complexities, into a legal paradigm. The doctrine coalesces a fact – that of being in possession – and an intent, the animus of being in possession.  (Para 751)

 

…….On doctrine of lost grant

The doctrine of lost grant supplies a rule of evidence. The doctrine is applicable in the absence of evidence, due to a 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 a claim to a land in which case the doctrine of lost grant will have no applicability; (Para 767(i))

Where it is impossible for the court to determine the circumstances under which the grant was made, an assumption is made about the existence of a valid and positive grant by the servient owner to the possessor or user. The grant maybe express or presumed. Once the assumption is made, the court shall, as far as possible, secure the possession of those who have been in quiet possession; (Para 767(ii))

For a lawful presumption there must be no legal impediments. For the applicability of the doctrine it is necessary to establish that at the inception when the grant was made not only was there a valid grant but also capable grantees in whose favour the grant could have been made. In the absence of defined grantees, there will be no presumption of lost grant; (Para 767(iii))

For the applicability of the doctrine of lost grant, there must be long, uninterrupted and peaceful enjoyment of an incorporeal right. Uninterrupted enjoyment includes continuous use or possession. The requisite period of use and possession is variable and to be determined from case to case; (Para 767(iv))

A distinction has to be made between an assertion of rights due to a prolonged custom and usage and that by doctrine of lost grant. (Para 767(v))

The 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. (Para 768)

The doctrine of lost grant does not constitute an independent, substantive head for the recognition of titles but is a rule of evidence. Section 110 of the Evidence Act 1872 speaks of the burden of proof as to ownership : when a question arises as to whether a person in possession of anything is the owner of such thing, the burden of proving that he is not the owner is cast on the person who avers that he is not the owner. In the process of applying the doctrine of lost grant as a rule of evidence, the court must be circumspect about not travelling beyond the limits set for it by the legislature. (Para 768)

Absent any pleadings and of evidence on the basis of which a presumption could be raised of the application of the doctrine, it must necessarily follow that the doctrine of lost grant has no application. (Para 768)

In the 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. (Para 771)

…….On Section 110 of Evidence Act, 1872

Section 110 of the Evidence Act 1872 deals with the burden of proof. Where the provision applies, the burden of proving that another person who is in possession is not the owner lies on the person who affirms against the ownership of that other person. But, for Section 110 to be attracted, there must be a question as to whether any person is the owner of anything and the ownership claimed must be that of which he is shown to be in possession. Section 110 is based on the principle that title follows possession. That is why the provision postulates that where a person is shown to be in possession, and a question arises as to whether that person is the owner, the law casts the burden of disproving ownership on the individual who affirms that the person in possession is not the owner. (Para 784)

Section 110 is based on the principle that possession in and of itself may raise a presumption of title. But this applies when the facts disclose no title in either of the disputants in which case, as it is said, possession alone decides. Hence, on the other hand, it is also well-settled that the presumption cannot be arise when the facts are known. (Para 785)

Unless the  “shown to be in possession” requirement is fulfilled, the presumption under Section 110 of the Evidence Act 1872 would not arise. (Para 785)

 

…….On adjudication of title

 A finding of title cannot be based in law on the archaeological findings which have been arrived at by Archaeological Survey of India. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial. (Para 788(III))

An adjudication of title has to be deduced on the basis of evidence sustainable in a court of law, which has withstood the searching scrutiny of cross-examination. (Para 788(IV))

 In a suit for partition, it is trite law that every party is both a plaintiff and defendant. (Para 791)

 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. (Para 796)

…….On Order VII Rule 7

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 (Para 792)

 

Final verdict

The Disputed land belongs to Lord Rama.

Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquillity. (Para 799)

Suit of the deity of Lord Ram (who is a juristic person) is maintainable at the behest of next friend who is entitled to represent him. A decree must ensue in favour of Lord Ram, who is represented by next friend. (Para 800)

An alternate land be allotted to the Muslims for the construction of a mosque and associated activities. (Para 800)

Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. (Para 800)

Land admeasuring 5 acres be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the 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, shall be conducted simultaneously with the handing over of the disputed site comprising of the inner and outer courtyards. (Para 801)

The Central Government is directed to  frame a scheme in exercise of the powers conferred upon it by Sections 6 and 7 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 decree in suit by Lord Ram. The scheme shall incorporate all provisions necessary to vest power and authority in relation to the management of the trust or the body chosen for the vesting of the land. (Para 803)

Suit by Nirmohi Akhara is barred by limitation and shall accordingly stand dismissed. 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, to do complete justice, it is directed that in framing the scheme, an appropriate role in the management would be assigned to the Nirmohi Akhara as the Central Government deems fit. (Para 804)

The Central Government shall, within a period of three months from 9th November 2019, 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; (Para 805)

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. The Central Government will be at liberty to make suitable provisions in respect of the rest of the acquired land by handing it over to the Trust or body for management and development in terms of the scheme framed in accordance with the above directions; (Para 805)

Possession of the disputed property shall continue to vest in the statutory receiver under the Central Government, untill in exercise of its jurisdiction under Section 6 of the Ayodhya Act of 1993, a notification is issued vesting the property in the trust or other body. (Para 805)

Simultaneously, with the handing over of the disputed property to the Trust or body, a suitable plot of land admeasuring 5 acres shall be handed over to the Sunni Central Waqf Board (Para 805)

(Para 805) The land to Sunni Central Waqf Board shall be allotted either by:

(a) The Central Government out of the land acquired under the Ayodhya Act 1993; or

(b) The State Government at a suitable prominent place in Ayodhya;

The Central Government and the State Government shall act in consultation with each other to effectuate the above allotment in the period stipulated. The Sunni Central Waqf Board would be at liberty, on the allotment of the land to take all necessary steps for the construction of a mosque on the land so allotted together with other associated facilities (Para 805)

Copy of judgement: Ayodhya judgement

-Adv. Tushar Kaushik

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