Shri Ram Janam Bhoomi Ayodhya Verdict Part 7 of 14

1776
of the 3rd couplet the poet gives Babur the

appellation of qalandar, which means a perfect
devotee, indifferent to all worldly pleasures. In the
second hemistich he gives as the reason for his being
so, that Babur became and was known all the world
over as a qalandar, because having become Emperor
of India and having thus reach the summit of
worldly success, he had nothing to wish for on this
earth.
The inscription is incomplete and the above is the
plain interpretation which can be given to the
couplets that are to hand. Attempts may be made to
reed further meaning into them but the language
would not warrant it.
1651. The text and translation of these above two authorities
are evidently distinct and different. Beveridge's claim that the
inscriptions were well existing on Baber's mosque in terms as to
be understood about the existence of inscriptions and not for the
text since admittedly she had not seen the inscriptions and its
text but has collected the same as a secondary evidence.
1652. Then next comes the Civil Judge, Faizabad who has
mentioned the text of the two inscriptions in his judgment dated
30.03.1946 in R.S. No.29 of 1945. He has also discussed the
same as under:
"Lastly there are the two Inscription in the mosque which
have been reproduced in my inspection notes. These are
also referred to in the Gazettes and according to the date
in the inscription on the pulpit it was built in 923 Hijri,
while according to other it was in 935 H. corresponding
with 1528 A.D. These inscriptions were the sheet-anchor
1777
of the plffs case but I am of the opinion that they are
inconclusive.
The 1st inscription contains three couplets in Persian and
when translated runs as follows:
By the order of Shah Babar, whose justice went up to the
skies (i.e. was well known), Amir (Noble) Mir Baqi, of
lofty grandeour, built this resting place of angels in 923
Hijri.
The 2nd inscription is more elaborate and contains usual
high flown language on eulogy of Babar & describe Mir
Baqi of Isphahan as his adviser and the builder of the
mosque. This inscription no doubt s the plffs case,
because it does not say that it was by the order of Babar
shah & it only refers to the reign of Babar but the 1st
couplet in the 1st inscription near the pulpit, clearly
supports the theory that Babar had ordered the building of
the as stated in the Gazettes and the settlement report."
1653. By this time, damage of inscription in 1934 and its
restoration is admitted to the parties. Whether the restoration
was accurate and if so on what basis is not known.
1654. Then next come Dr. Z.A. Desai's edited work in
"Epigraphia Indica Arabic & Persian Supplement 1964-65"
which gives another story with much difference. Paras 17, 18
and 19 of written argument:
17. Dr. Z.A. Desai informs that Fuhrers reading does
not appear to be free from mistakes. But he does not
specify the mistakes committed by Fuhrer in his reading
of the texts and translations thereof. From the scrutiny of
Dr Desais translation it appears that Dr. Desai in 4th line
has added and between Mir and Khan and Baqi
1778
after Khan. So he has converted Mir Khan into Mir
Khan Baqi. And in the 3rd line he has added of God
after this lasting house to make it a mosque. He has
neither given any rational explanation for his said
conversion of Mir Khan into Mir Baqi nor He has
exhibited as to how the Fuhrers translation is different
from the original text.
18. Dr. Z.A. Desai In his detailed discussion on all
inscriptions of Baburs regime writes an introduction that
a rough draft of an article of his predecessor Maulivi M.
Asuraf Hussain who retired in 1953 was found amongst
sundry papers in his office with a note that it might be
published after revision by his successor. Consequently,
he claims, that he has published these inscriptions with
translation after extensive revision and editing, but
nowhere has he mentioned that which portions of the
reading of these inscriptions are his own revision and
editing and on what ground these revisions have been
made. About inscriptions at Ayodhya he writes that there
are three inscriptions in the Babari Mosque out of which
the two were completely destroyed by the Hindu rioters in
1934 A.D. However, he managed to secure an ink-
stampage of one of them from Sayyid Badrul - Hasan of
Fyzabad. He writes that the present inscription restored by
the Muslims Community is also slightly different
from the original owing perhaps to the incompetence of
restorers in deciphering it properly. When Dr. Desai
himself admits that the restored inscription is slightly
different from the original, then his claim that the restored
inscription fixed on Baburi mosque in or after 1934 is the
1779
dextrously rebuilt of the original one alleged to be fixed
on since the days of Babur becomes meaningless and un-
trustworthy. In fact, none of the Inscriptions was fixed on
the Disputed Structure which has all along been sacred
place of the Hindus known as Sri Ramajanmasthan
Temple.
19. Dr. Desai informs that he has based his translation
on the inscription of Fuhrer, although he says that Fuhrer
must have been misinformed to affirm that; few
corrections of the second and the whole third line
completely defaced. Even if it is supposed that some
words in the 2nd line and the whole third line are defaced,
there is not much impact in the meaning of the text of the
inscription. But here we do find that Dr. Desai has
extensively changed the meaning of the translated
passage. It is quite different from what Fuhrer had
translated. Fuhrer had written that it is in ten lines, above
the entrance door of the Masjid. He has made its
translation in ten separate lines. Dr. Desai has
considerably changed the meaning of the text without
pinpointing how Fuhrers translation was wrong. Since
beginning and the end of the text are the same and the
inscription is said to be the same and there is no major
variance in Fuhrers English translation from the Persian
text, Dr. Desais translation appears to be arbitrary. He has
changed the date of the inscription 930 H. (1523 A.D.) to
935A.H. Without assigning any reason. In Dr. Desais
translation the name of Mir Baqi the second Asfaq appears
where as in the original Persian text Mir Baqis name does
not appear at all. Then Babar is called a Qalandar in this
1780
inscription which is not found in Fuhrers translation.
After 4th line Dr. Desai does not follow the line system
and at the end he mentions Fathullah Muhammad Ghori
as the humble writer of this inscription. His name figures
in the Fuhrers translation too. He goes on expanding how
Babar was called Qalandar but he does not explain how
the changes have taken place in the inscription which was
not in the text read by Fuhrer.
1655. Sri P.N.Mishra has also requested this Court to take
judicial notice of the fact that almost in all the inscriptions,
which have been recovered by ASI said to be of the period of
Babar mentions his name with much honour and deference. This
he has demonstrated from various inscriptions referred to in
"Epigraphia Indica Arabic & Persian Supplement 1964-65"
(Supra). He has summarized this part of argument in para 20 of
written argument as under:
"In the above mentioned Inscriptions the Emperors name
Zahirud-Din Muhammad Babur Badshah Ghazi which
has been recorded almost in all other available Inscription
of his period, is missing from which it appears that the
forgers of later days were not familiar with the correct
name of the said Emperor.
In the Inscription, dated A.H. 933 i.e. 1526-27 A.D. found
on the wall of a well from Fatehpur Sikri being Plate No.
XV(a) in its 1st line his name has been recorded as
follows:
Zahirud-Din Muhammad Babur Badshah Ghazi
(Epigraphia Indica Arabic & Persian
Supplement 1964 and 1965 at page-51)
In the Inscription of A.H. 934 i.e. 1527-28 A.D. found on
1781
a mosque from Panipat being Plate No. XVI(b) in its 1st
line his name has been recorded as follows:
(Ibid.p. 55)
In the Inscription dated A.H. 934 i.e. 1527-28 A.D. found
on a mosque from Rohatak being Plate No. XVI(a) in its
2nd line his name has been recorded as follows:
(Ibid.p. 56-7)
In the Inscription dated A.H. 934 i.e. 1528 A.D. found on
a mosque from Rohtak being Plate No. XVII(a) in its 1st
line his name has been recorded as follows:
His Majesty Babur Badshah Ghazi
(Ibid.p. 57)
a mosque from Palam(Delhi) being Plate No. XVIII(a) in
its 1st and 2nd lines his name has been recorded as
follows:
(Ibid.p. 62)
a mosque from Pilakhna being Plate No. XVIII(c) in its
3rd line his name has been recorded as follows:
Zahirud-Din Muhammad Babur Ghazi
(Ibid.p. 64)
In the Inscription dated A.H. 936 i.e. 1529 A.D. found on
a mosque from Maham being Plate No. XIX(a) in its 1st
and 2nd lines his name has been recorded as follows:
Zahirud-Din Muhammad Badshah Ghazi
(Ibid.p. 65)
1782
1656. Regarding transportation of inscription from one place
to another and affixing the same to raise the claim with respect
to building on the basis of certain facts, which actually did not
exist, he pointed out that this kind of practice has been noticed
on various occasions. He sought to fortify it by referring to
certain incidents mentioned in para 21 and 22 of his written
argument:
21. It is not uncommon for ruffians to fix old
Inscriptions on newly built and / or converted mosques.
Epigraphia Indica Arabic & Persian Supplement 1964
and 1965 at its pages 55 and 56 records that two
Inscriptions dated 1934 fixed on two mosques at Rohtak
did not belong to those mosques but have been fixed
thereon. relevant extracts from said book read as follows:
Among the historical buildings, two mosques, viz.,
Masjid-i-Khurd in the Fort2 and Rajputon-ki-Masjid, a
new mosque in the city area, bear inscriptions of the
time of Babar. The one on the Masjid-i-Khurd consists
of three lines inscribed on a tablet measuring 53 by
23cm. Which is fixed over the central archway
outside3. The slab is badly damaged and considerable
portion of the text has peeled off. It is, therefore, not
possible to decipher it completely, but this much is
certain that it refers to the construction of a mosque in
the reign of ahirud-Din Muhammad Babur by one
Qadi Hammad. If the Tughluq inscription occurring on
the outer archway is in situ, this epigraph may not
belong to this mosque. (Ibid.p.56)
The other epigraph of Babur in Rohtak is from the
Rajputon-ki-Masjid. Fixed over its central arch, the
1783
tablet, measuring 1.1 m. By 21 cm., does not belong to
the mosque, but it was rather intended as the tombstone
of Masnad-i-Ali Firuz Khan. It is inscribed with two
lines of Persian which are slightly affected by the
weathering of the stone. The text records A.H. 934
(1528 A.D.) as the date of the construction of the tomb
of Masnad-i-Ali Firuz Khan, son of Masnad-i-Ali
Ahmed Khan and grandson of Masnad- i-Ali Jamal
Khan and refers itself to the reign of Babur. The style of
writing is ordinary Naskh. I have read it as follows:-
TEXT
Plate XVII(a)
...............................
TRANSALATION
(1) Completed was in the reign of His Majesty Babur
Badshah Ghazi, may Allah perpetuate his kingdom and
sovereignity, this noble edifice, (viz.) the tomb of His
Excellency Masnad-i-Ali3 Firuz Khan, son of Masnad-
i-Ali Ahmad Khan, son of Masnad-i-Ali Jamal Khan,
the deceased, all of them, on the 10th of the month of
Rabiul-Akhar, year (A.H.) four and thirty and nine
hundred (10th RabiII A.H. 934 = 3rd January 1528
A.D.). (Ibid. P. 57)
22. In 'Epigraphia Indica Arabic & Persian
Supplement 1964 and 1965 at its pages 19 and 20 S.A.
Rahim reports that at Fathabad near Chanderi in Guna
district of Madhya Pradesh, stands the partially ruined
palace known as Kushk-Mahal and Inscrption fixed
thereon are not dated back to its construction but have
been affixed thereon from time to time either by the
1784
visitors or by the Governors thereof. Relevant extracts
from his said reprt read as follows:
It would not be, however, wholly correct to say that the
Kushk-Mahal does not bear any inscription. There are
about a score of places on the walls enclosing the stair-
cases, referred to above, which bear short inscriptions.
The rubbings of some of these were found in the
bundles of old estampages which werer transferred to
our office, from the Office of the Government
Epigraphist for India, Ootacamund, South India, who in
his turn seems to have received them quite some time
back from the Archaeological Department of the
erstwhile Gwalior state. I prepared fresh rubbings of
these records when I toured some places in Madhya
Pradesh, including Chanderi, in November 1962. Of
these, some are mere repetitions of the same text and as
such have been excluded from this purview. The
remaining four inscriptions are edited here for the first
time.
These inscriptions raise an important question, as to
whether they are contemporary with the building or not.
They do not appear to be so, because they are not
inscribed on tablets set up on the walls, nor are they
found incised on prominent places on the monument. A
building of such magnificence would have had, if at all
it was so planned, an inscription of proportionate
prominence. This does not rule out the possibility,
however, of the existence of an epigraph on the
monument, for it is possible that it had one and may
have disappeared since. Moreover, the texts of the
1785
inscriptions under study are also vague on this point, for
they do not make any explicit reference to the palace-
building or its construction. In view of these facts, it
appears more likely that these records are either visitors
etchings or some sort of mementos which the governors,
the palace-guards or some other officials might have
desired to leave on the stone.
Fortunately, one of these four records is dated, and since
the same penmanship is employed in the other three
records, they can also be safely taken as having been
inscribed at about the same time or at short intervals.
Their language is Persian and style of writing cursive
Naskh. The wear and tear of time has affected the stone,
resulting into partial obliteration of some of the letters,
particularly in the first inscription.
The contents of these four epigraphs classify them into
two groups: one, of the first inscription, and the other of
the remaining three. The first refers itself to the
governorship(amal) of Khan-i-Azam Sharaf Khan
Sultani and the superintendence (shahnagi) of one
person whose name is not very legible; it seems to be
Raja, (son of) Shams, (son of) Fath. The name of the
writer which is also not clear, appears to be Shiv Sing(?)
Gulhar. This inscription is dated 1489-90. The three
records of the other group refer, between themselves, to
the governorship of Malik Mallu Sultani and
superintendence of Sarkhail Shariqi Mulki and quote
Gulhar Jit(?) Dev, as the scribe. They are undated and
hence, it is difficult to state positively if they are earlier
than the above dated inscription or not. (Ibid. P.19-20)
1786
1657. We may place on record that on this aspect of the
matter the learned counsels appearing on behalf of the Muslim
parties in their rejoinder arguments could not give any
substantial reply. They said that the matter involves historical
facts. The inscriptions, their text, have been noticed in various
history books. They have no other material to support the plea
that the building in dispute was constructed by Babar in 1528
AD or at his command by his commander or his agent Mir Baki.
They also submit that since this historical event has not been
doubted for the last more than one and a half century, this Court
may not be justified in recording a finding disturbing the
historically admitted and believed fact as the Court is not expert
in the matter of history and therefore, there should not be any
venture on the part of the Court on this aspect.
1658. The later part of the argument that for the last more
than one and a half century, the documents, which are available
to us, does not show that the Historians doubted about the
building in dispute was constructed during the reign of Babar.
But simultaneously this is also proved that all have proceeded
mechanically and without properly scrutinizing the texts of the
inscriptions, as reported from time to time. The things have been
taken as granted. It is also true that the incident of destruction of
the temple and construction of a mosque at the disputed place
was first noticed by Tieffenthaler in the second half of 18
th
Century. By that time Aurungzebe's rule was much nearer than
Babar's reign. The local belief in respect to recent event
normally is more reliable then much older one. This belief was
so strong that it continued thereafter for the last 50 years and
around 1810 AD, when Dr. Buchanan visited Ayodhya he also
found the same. It is he, who for the fist time sought to
1787
controvert the local belief by bringing into picture Babar as the
person responsible for the demolition of the temple and
construction of mosque at that site. Subsequent writers were
mostly petty employees of East India Company i.e. Robert
Montgommery Martin or the British Government i.e.
H.H.Wilson etc.
1659. During the reign of British Government, names of
Aurangzebe and Babar, both were taken for Ayodhya, but tried
to be a justified in respect to different buildings. The Indian
Historians basically have followed what was written as per the
observations of Buchanan. Nobody made any detailed
investigation whatsoever. At least none tried to find out the
actual events which took place and the correct historical facts.
1660. Normally, this Court would be justified in following
the opinion of Expert Historians particularly when it covers a
sufficiently long time, but when directly a historical issue is
raised before it and this Court, as a matter of necessity, has no
option but to find out the correct historical events to the extent
of accuracy as much as possible, we cannot proceed blindly to
follow what has been written by earlier Historians ignoring all
other aspects, some of which we have already discussed. In fact,
it is for this reason that the biographical details of some of the
alleged history writers, we have mentioned in the early part of
this judgment. Had there been two views possible we would not
have hesitated in following the view which has prevailed for
such a long time but where we find, considering all the relevant
material, that the view, which has prevailed for such a long time
apparently unbelievable and unsubstantiable, followed by the
concerned authors and Historians without a minute scientific
investigation, we cannot shut our eyes to such glaring errors and
1788
record a finding for which we ourselves are not satisfied at all.
1661. In fact the doubts created otherwise are so strong and
duly fortified with relevant material that we have no hesitation
in observing that they surpass the required test to become cogent
evidence to prove a fact otherwise.
1662. Before concluding we may also deal with one aspect
which has been raised though with caution from both the sites,
i.e., the legal status and evidentiary value of the White Paper
published by Government of India as well as various gazetteers.
1663. First we come to the White Paper issued in February,
1993 by the Government of India with the title "White Paper on
Ayodhya".
1664. In Chapter I "Overview" paras 1.1 and 1.2 read as
under:
1.1. Ayodhya situated in the north of India is a township
in District Faizabad of Uttar Pradesh . It has long been a
place of holy pilgrimage because of its mention in the epic
Ramayana as the place of birth of Shri Ram. The structure
commonly known as Ram Janma Bhoomi-Babri Masjid was
erected as a mosque by one Mir Baqi in Ayodhya in 1528
AD. It is claimed by some sections that it was built at the
site believed to be the birth-spot of Shri Ram where a
temple had stood earlier. This resulted in a long-standing
dispute.
1.2. The controversy entered a new phase with the
placing of idols in the disputed structure in December,
1949. The premises were attached under section 145 of the
Code of Criminal Procedure. Civil suits were filed shortly
thereafter. Interim orders in these civil suits restrained the
parties from removing the idols or interfering with their
1789
worship. In effect, therefore, from December, 1949 till
December 6, 1992 the structure had not been used as a
mosque.
1665. In Chapter II "Background" para 2.13 and 2.15 read as
under:
2.13. As has been mentioned above, Hindu structures of
worship already existed in the outer courtyard of the RJB-
BM structure. On the night of 22nd/23rd December, 1949,
however, Hindu idols were placed under the central dome
of the main structure. Worship of these idols was started on
a big scale from the next morning. As this was likely to
disturb the public peace, the civil administration attached
the premises under section 145 of the Code of Criminal
Procedure. This was the starting point of a whole chain of
events which ultimately led to the demolition of the
structure. The main events of this chain have been
summarised in Appendix-1.
2.15. The Hindu idols thus continued inside the disputed
structure since 1949. Worship of these idols by Hindus also
continued without interruption since 1949 and the structure
was not used by the Muslims for offering prayers since
then. The controversy remained at a low ebb till 1986 when
the District Court of Faizabad ordered opening of the lock
placed on a grill leading to the sanctum-sanctorum of the
shrine. An organisation called the Babri Masjid Action
Committee (BMAC), seeking restoration of the disputed
shrine to the Muslims came into being and launched a
protest movement. The Hindu organisations, on the other
hand, stepped up their activities to mobilise public opinion
for the construction of a Ram temple at the disputed site.
1790
1666. Similarly Chapter I para 1.14 refers to the excavations
conducted by Prof. B.B. Lal at Ayodhya and Chapter II paras
2.6, 2.7, 2.8, 2.9 and 2.10 refers to certain more facts as under:
1.14. The other controversy related to the
excavations conducted by Prof. B.B. Lal at Ayodhya. His
discovery of some pillar bases close to the disputed
structure was cited by VHP to support its case. The
authenticity of this finding was, however, disputed by
AIBMAC which alleged that its historians had been denied
the opportunity to examine the original record relating to
this excavation. This was settled by making available
material relating to Prof. Lals excavations to the experts
of both sides.
2.6. There was a minor battle in this part of Ayodhya (Kot
Ram Chandra) in 1855 in which a large number of
casualties had taken place. A 3-man inquiry report of this
incident is available on the records of the East India
Company (and a copy is in the National Archives).
2.7. At some stage during the history of the RJB-BM
structure a portion of its compound was occupied by Hindu
structures of worship, viz Ram Chabutra and Kaushalya
Rasoi. The presence of these structures is marked in court
documents relating to a suit filed by Mahant Raghuvar
Dass in 1885. These structures were in existence till
December 6, 1992. There are indications that these
structures were considerably older but the evidence on this
point is not conclusive. Some Survey records of 1807-14
have come to notice in which the disputed site has been
marked as Yanmasthan, i.e. Janmashtan.
2.8. It is also established that the dispute between Hindus
1791
and Muslims over this structure led to communal riots in
1934 in which the structure suffered some damage which
was later repaired.
2.9. The structure and its appurtenant land were notified
as a Sunni Muslim Wakf in 1944. The validity of this
notification has been called into question in court
proceedings.
2.10. The Ram Janma Bhoomi-Babri Masjid structure
contained some architectural elements, particularly
fourteen black stone pillars that were said to be part of a
non-Islamic religious structure of 11
th
-12
th
century AD.
The VHP argued that this constituted evidence that the
disputed structure was built after destruction of a temple.
The AIBMAC, however, argued that there was nothing to
suggest that all these architectural elements belonged to a
single structure standing at this very site. These could have
belonged to different structures in other areas.
1667. Sri P.R. Ganpathi Ayer and Sri K.N. Bhat, Senior
Advocates sought to rely on the above report to show the
structures already existing in the disputed area and some other
historical events.
1668. Similarly, the factum of construction of the disputed
building in 1528 AD mentioned in para 1.1 of the said paper is
referred by the other side. The question is, what is the legal
status of the document, how far the contents thereof can be
relied on by the parties in a Court of Law in respect to certain
facts which is are to be adjudicated and whether a historical or
otherwise facts mentioned in a White Paper published by
Government of India is binding and conclusive so far as that fact
relating to occurrence or non-occurrence of an event etc. is
1792
concerned.
1669. No provision has been shows to us which cover a
White Paper issued by the Government.
1670. The word "White Paper" has been defined in Words
and Phrases Permanent Edition, Vol. 45, published by St.
Paul, Minn. West Publishing Co., at page 127 as under:
"White Paper: Ballots upon paper tinged with blue,
which has ruled lines not placed there as marks to
distinguish the ballots, are upon "white paper," within the
meaning of Act 1849, p. 74, 15, providing that no ballot
shall be received or counted unless the same is written or
printed upon while paper without any marks thereon
intended to distinguish one ballot from another. People v.
Kilduff, 15 III. 492, 501, 60 Am. Dec. 769."
1671. In "DK Illustrated Oxford Dictionary" published by
Oxford University Press, at page 952:
"White Paper- Government report giving
information or proposals on an issue."
1672. In The New Lexicon Webster's Dictionary of the
English Language (1987), published by Lexicon Publications,
Inc. at page 1122:
"White paper-an informative government report
issued on a matter which has received official
investigation."
1673. In The Layman's Dictionary of English Law" by
Gavin McFarlane (1984), published by Waterlow Publishers
Limited at page 314:
"White Paper-A governmental publication giving
details of some topic which is to be laid before
Parliament."
1793
1674. On the one hand it is a public document issued by the
Government of India and, therefore, no doubt it is true, that, it
can be looked into by a Court of Law. Even if the parties have
not referred to it, judicial cognizance of such a document can be
taken. A Full Bench of Punjab High Court in Sukhdev Singh
Vs. Union Territory, Chandigarh, AIR 1987 Punjab and
Haryana 5 has said:
"15. What the White Paper describes can judicially
be taken note of on which there can be no two opinions...."
1675. However, there is no authority to show that the facts as
given in White Paper are to be treated as correct in a Court of
Law where those facts or related facts are disputed in a pending
adjudication. No provision has been shown whereunder
anything contained in a White Paper published by a Government
may be taken to be a proved fact. We are not apprised of any
authority whatsoever showing the legal status of a White Paper
except that it is a public document under Section 74 of the
Evidence Act. About the value of the facts or factual statements
contained therein, to our mind, the things would depend on the
nature of the facts stated in a White Paper and the context.
Something concerning the governmental activities, if are
mentioned in a White Paper which has been issued by that very
Government, a presumption may lie that the facts relating to that
body must have been correctly mentioned therein. This
presumption also, however, is rebuttable and it is always open to
anyone to contradict such a statement of fact and lead evidence
to disprove it. Then there may be facts relating to history or
historical events, the geographical position of the territories etc.
as also the condition of the subject/people etc. The well known
historical facts which are duly supported with other history
1794
books may be taken to be correct. Similarly in respect to the
geographical position of the State the concerned government is
more competent to tell about its accuracy than any individual.
However, the facts historical or otherwise in respect to
individual or group of individuals, and/or about the property
matters of the subject, we have no manner of doubt that in such
cases, at the best, the Court will presume that the government
has mentioned those facts based on the record available to it but
in case of dispute such statement would have no relevance and
shall not be used for the advantage/disadvantage to any party.
The dispute has to be considered by the appropriate judicial
authority in the light of the evidence led before it. The facts
mentioned in White Paper, depending upon the nature, at the
best, may be used as a corroborating evidence but not otherwise.
1676. Then comes the gazetteers in respect whereto some of
the authorities we have already discussed and noticed above. At
this stage suffice it to mention that the facts contained in a
gazetteer do not represent the conclusive status and correctness
of those facts but again they have to be looked into and decide
by a Court of Law based on the evidence available before it. The
gazetteer may be considered as a relevant evidence but the
historical, cultural and other facts, which may have some
reflection on the rights, privileges etc. of individual or group of
individuals, there the matter has to be considered by a Court of
Law in the light of the evidence made available to it and if
corroborated by other reliable evidence, the facts of history etc.
contained in a gazetteer may be looked into. Gazetteers,
published under the authority of the Government, we have no
hesitation in treating the same to be a "public document" under
Section 74 of the Evidence Act but then the contents thereof
1795
cannot be taken on their face value and cannot be relied to prove
a particular aspect of the matter unless it is corroborated.
1677. Sri Ayer has relied on Section 87 of the Evidence Act
to contend that the facts stated in a gazetteer may be presumed
to be correct unless proved otherwise since the gazetteers are
relevant for the purpose of Section 13 of the Evidence Act
having noticed the faith of the people and the historical facts
therein. To the extent that the gazetteer may be treated to be
relevant and one of the piece of evidence, we may not have any
objection but to suggest that the facts stated in a gazetteer may
presume to be correct unless proved otherwise by applying
Section 87 of the Evidence Act, we find it difficult to accept.
Where the rights of the individuals or group of individuals
pertaining to property dispute are under challenge, the facts
mentioned in a gazetteer may be considered to be a relevant
piece of evidence but not beyond that.
1678. In the light of the above we do not find that either the
Government of India's White Paper published in 1993 or various
gazetteers, merely for mentioning one or the other facts, can be
taken to be correct on its face value unless corroborated with
cogent evidence.
1679. In the above facts and circumstance, it is difficult to
record a finding that the building in dispute was constructed in
1528 AD by or at the command of Babar since no reliable
material is available for coming to the said conclusion. On the
contrary the preponderance of probability shows that the
building in dispute was constructed some later point of time and
the inscriptions thereon was fixed further later but exact period
of the two is difficult to ascertain.
1680. The onus to prove lies upon the party who has pleaded
1796
these facts. We have no hesitation in saying that these parties
have miserably failed to discharge this burden.
1681. In the absence of any concrete material to show the
exact period and the reign of the concerned Mughal emperor or
anyone else during which the above construction took place, we
are refraining from recording any positive finding on this aspect
except that the building in dispute, to our mind, may have been
constructed much later than the reign of Emperor Babar and the
inscriptions were fixed further thereafter and that is why there
have occurred certain discrepancies about the name of the
person concerned as also the period. The possibility of change,
alteration or manipulation in the inscriptions cannot be ruled
out.
1682. It is a matter of further probe by Historians and others
to find out other details after making an honest and independent
inquiry into the matter. The three issues, therefore, are answered
as under:
(A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are
answered in negative. The defendants have failed to
prove that the property in dispute was constructed by
Shanshah/Emperor Babar in 1528 AD. Accordingly, the
question as to whether Babar constructed the property in
dispute as a 'mosque' does not arise and needs no answer.
(B) Issue No.1(a) (Suit-4) is answered in negative. The
plaintiffs have failed to prove that the building in dispute
was built by Babar. Similarly defendant no.13 has also
failed to prove that the same was built by Mir Baqi. The
further question as to when it was built and by whom
cannot be replied with certainty since neither there is any
pleadings nor any evidence has been led nor any material
1797
has been placed before us to arrive at a concrete finding
on this aspect. However, applying the principle of
informed guess, we are of the view that the building in
dispute may have been constructed, probably, between
1659 to 1707 AD i.e. during the regime of Aurangzeb.
(G) Issues relating to Deities, their status, rights etc.:
1683. In this category comes issues no. 12 and 21 (Suit-4);
and, 1, 2, 3(a), 6 and 21 (Suit-5).
1684. Issues no. 12 (Suit-4) and 3(a) (Suit-5) involves
common facts and consideration. Similarly issues no. 1 and 21
(Suit-5) and issues no. 2 and 6 (Suit-5) are common:
Issue No. 1 (Suit-5):-
Whether the plaintiffs 1 and 2 are juridical persons?
Whether the idols in question cannot be treated as
Deities as alleged in paragraphs 1,11,12,21,22, 27 and 41 of
the written statement of defendant no.4 and in paragraph 1
of the written statement of defendant no.5?
Whether the suit in the name of Deities described in
the plaint as plaintiffs 1 and 2 is not maintainable through
plaintiff no.3 as next friend?
Is the plaintiff no.3 not entitled to represent the
plaintiffs 1 and 2 as their next friend and is the suit not
competent on this account?
Whether the suit is bad for non-joinder of alleged
Deities?
1798
Whether idols and objects of worship were placed
inside the building in the night intervening 22
nd
and 23
rd
December 1949 as alleged in paragraph 11 of the plaint
or they have been in existence there since before? In either
case, effect?
(a) Whether the idol in question was installed under
the central dome of the disputed building (since
demolished) in the early hours of December 23, 1949 as
alleged by the plaintiff in paragraph 27 of the plaint as
clarified in their statement under Order 10 Rule 2 C.P.C."
1685. Pleadings in this respect are in para 11 of the plaint
(Suit-4) and para 26 of the written statement dated 24
th
December, 1989 of defendant no. 13/1 (Suit-4); paras 1, 20 and
27 of the plaint (Suit-5) and paras 1, 11, 12, 21, 22, 27 and 41 of
the written statement dated 26/29.08.1989 of defendant no. 4
(Suit-5) which read as under:
"11. That the Muslims have been in peaceful possession of
the aforesaid mosque and used to recite prayer in it, till
23.12.1949 when a large crowd of Hindus, with the
mischievous intention of destroying, damaging or defiling
the said mosque and thereby insulting the Muslim religion
and the religious feelings of the Muslims, entered the
mosque and desecrated the mosque by placing idols inside
the mosque. The conduct of Hindus amounted to an offence
punishable under sections 147, 295 and 448 of the Indian
Penal Code." (Plaint, Suit-4)
Para 26 of Written statement of defendant no. 13/1
(Suit-4):
26. That it is manifestly established by public records
1799
and relevant books of authority that the premises in
dispute is the place where, BHAGWAN SRI RAMA
Manifested HIMSELF in human form as an incarnation of
BHAGWAN VISHNU, according to the tradition and faith
of the Hindus. Again according to the Hindu faith, GANGA
originates from the nail of the tee of BHAGWAN VISHNU,
and cleanses and purifies whatever is washed by or dipped
into its waters. And BHAGWAN VISHNU having
Manifested himself in the human form of Maryada
Purushottam Sri Ramchandra Ji Maharaj at Sri Rama
Janma Bhumi, those who touch the Earth or the footprints
of BHAGWAN SRI RAMA symbolised by the CHARANS at
that place, are cleansed of their sins and purified. The
Earth at Sri Rama Janma Bhumi could not have acted
differently towards the Muslims who went there. They
were also cleansed and purified of the evil in them by the
touch of BHAGWAN SRI RAMAS footprints, which like
the waters of the GANGA purify all without any
discrimination. The place, like the waters of the GANGA,
remains unsullied, and has been an object of worship, with
a juridical personality of its own as a Deity, distinct from
the juridical personality of the presiding Deity of
BHAGWAN SRI RAMA installed in the Temple thereat,
and has existed since ever even before the construction of
the first temple thereat and installation of the Idol therein.
Indeed, it is the VIDINE SPIRIT which is worshipped. An
Idol is not indispensable. There are Hindu Temples
without any Idol. The ASTHAN SRI RAMA JANMA
BHUMI has existed immovable through the ages, and
has ever been a juridical person. The actual and
1800
continuous performance of Puja at Sri Rama Janma Bhumi
was not essential for the continued existence or Presence
of the Deities at that place. They have continued to remain
Present, and shall continue to remain Present, so long as
the place lasts, which, being land, is indestructible, for any
one to come and invoke them by prayer. The Deities are
Immortal, being the Divine Spirit or the ATMAN, and may
take different shapes and forms as Idols or other symbols
of worship according to the faith and aspiration of their
devotees.
Paras 1, 20 and 27 of plaint (Suit-5):
1. That the Plaintiffs Nos. 1 and 2, namely, Bhagwan Sri
Rama Virajman at Sri Rama Janma Bhumi, Ayodhya, also
called Sri Rama Lala Virajman, and the Asthan Sri Rama
Janma Bhumi, Ayodhya, with the other Idols and places of
worship situate thereat, are juridical persons with
Bhagwan Sri Rama as the presiding Deity of the place.
The Plaintiffs No. 3 is a Vaishnava Hindu, and seeks to
represent the Deity and the Asthan as a next friend.
"20. That the Place itself, or the Asthan SRI RAMA
JANMA BHUMI, as it has come to be known, has been an
object of worship as a Deity by the devotees of Bhagwan
Sri Rama, as IT personifies the spirit of the Divine
worshipped in the form of SRI Rama LALA or Lord Rama
the child. The Asthan was thus Deified and has had a
juridical personality of its own even before the
construction of a Temple building or the installation of the
Idol of Bhagwan Sri Rama thereat.
27. That after independence from the British Rule, the
Vairagis and the Sadhus and the Hindu public, dug up and
1801
levelled whatever graves had been left in the area
surrounding Sri Rama Janma Bhumi Asthan and purified
the place by Aknand Patha and Japa by thousand and
thousands of persons all over the area. Ultimately, on the
night between the 22
nd
23
rd
December, 1949, the Idol of
Bhagwan Sri Rama was installed with due ceremony
under the central dome of the building also.
Paras 1, 11, 12, 21, 22, 27 and 41 of Written statement of
defendant no. 4 (Suit-5):
"1. That the contents of para 1 of the plaint are incorrect
and hence denied as stated. Neither the plaintiffs no. 1 and
2 are the juridical persons and nor there is any Presiding
Deity of Sri Ram Chandraji at the place in dispute and nor
the plaintiff no. 3 has any locus standi or right to represent
the co-called and alleged deity and Asthan as next friend. It
is further submitted that the plaintiffs no. 1 and 2 are not at
all legal personalities (and as such they have no right to
file the instant suit). As a matter of fact there has never
been any installation of deity within the premises of the
disputed place of worship known as Babri Masjid and the
idol in question was stealthily and surreptitiously kept
inside the mosque in the night of 22
nd
/23
rd
December, 1949
by some mischief-mongers against whom an F.I.R. had also
been lodged at the Police Station Ayodhya on 23
rd
December, 1949.
11. That the contents of para 11 of the plaint are denied
as stated and in reply thereto it is submitted that the
plaintiffs no. 1 and 2 cannot be treated as deities and
also there arises no question of their Sewa and Pooja. Rest
of the contents of the para under reply may be verified from
1802
the record.
12. That the contents of para 12 of the plaint are also
denied as stated and in reply thereto it is submitted that
there arises no question of Sewa and Pooja of the said
alleged deities as no such deities exist in the building in
question and the idols kept therein could not be treated as
deities. It is further submitted that the restricted Pooja as
carried on on 16
th
January, 1950 could not be treated as
Sewa and Pooja of the alleged deity. It is also incorrect to
say that there has ever been any likelihood of the suits
being decided in such a manner that any closer Darshan of
the idols could be possible.
denied as stated and in reply thereto it is submitted that the
mythological concept of incarnation etc. is not at all
relevant for the purposes of the instant case. (However, the
averments of the para under reply are not correct and
consistent with Hindu Law and the same being a matter of
legal nature it will be dealt at the appropriate stage.) It is,
however, relevant to mention here that neither there has
been any installation of any deity within the premises in
dispute and nor the ritual of Pranpratishtha in respect of
any idol surreptitiously and stealthily kept inside the
mosque in question was ever performed or observed; as
such there arises no question of divine spirit having been
created or manifested in the idol forcibly kept in the
mosque in question in the night of 22
nd
-23
rd
December,
1949 about which an F.I.R. was lodged at the Police
Station Ayodhya in the morning of 23.12.1949 by a Hindu
Officer of the Police Station himself who had mentioned in
1803
the said F.I.R. that some mischievous element had kept the
said idol in the preceding night in a stealthy and
surreptitious manner by sheer use of force and on the basis
of the said F.I.R. a Criminal case had also been registered
against those persons who had kept the said idol and
subsequently proceedings under section 145 Cr. Proc.
Code had been drawn by the Magistrate and as a result of
the communal tension arising and developing on account of
the aforesaid incident of keeping the idol in the mosque, the
said building had been attached on 29.12.1949 and
Suprudgar/Receiver for the care and custody of the said
building had also been appointed who had drawn up a
Scheme of Management and the same was submitted on
5.1.1950.
incorrect and hence denied as stated and in reply thereto it
is submitted that the spirit of Sri Ramj Chandraji as the
divine child cannot be said to reside at any place or in any
idol kept inside the said mosque and as such no idol or
place of the said mosque can be said to be deity. It is
further submitted that there is no comparison of Kedranath
or Vishnupad temple of Gaya with the Babri Masjid. It is
also relevant to mention here that there is no Charan or
Sita Rasoee within the premises of Babri Masjid and the
place known as Sita Rasoee is situated outside the
premises of the said mosque. It is also incorrect to say
that Pooja in any form was ever performed inside the
mosque in question at any time prior to 23.12.1949.
27.That the contents of para 27 of the plaint are also
incorrect and hence denied as stated. The graves existing
1804
near the Babri Masjid were dug up and levelled mainly
after 1949 and not just after Independence and in the night
of 22
nd
-23
rd
December, 1949 some Bairagees had forcibly
and illegally entered into the mosque and had kept the
idol below the middle dome of the mosque about which
an F.I.R. was lodged at the Police Station Ayodhya in the
morning of 23
rd
December, 1949 and some of the culprits
were even named in the FIR. It is absolutely incorrect to
say that the idol of Bhagwan Sri Ram Chandraji was
installed with due ceremony in the Central dome of the
building in the 'aforesaid' night. It is also incorrect to say
that any purification of the alleged Asthan was done by
Akhand Ramyan and Jap by thousands of persons all over
the area.
41. That the instant suit is not at all maintainable and the
plaintiffs no. 1 and 2 are neither deities and nor they can
be treated as juristic persons and the plaintiff no. 3 cannot
claim himself to be the next friend of Bhagwan Sri Ram. As
such none of the plaintiffs have any right to file the instant
Suit."
1686. The defendant no. 5 (Suit-5) also in para 1 of his
written statement has said:
"1. That the contents of para 1 of plaint are denied.
Neither the plaintiff no. 1 nor plaintiff no. 2 are the
deities within the meaning of Hindu Law nor they are
juristic person to file the suit. Remaining contents of para
are also denied. Kindly see additional pleas."
1687. We may mention at this stage that para 11 of the plaint
(Suit-4) has also been denied by the defendants no. 1 and 2 in
para 11 of their written statement dated 12.03.1962 and
1805
thereafter in the additional pleas in paras 25, 28 and 29 they
have pleaded that Hindu Pooja is going on in the said temple
since 1934, i.e., for about last 28 years and Muslims have
never offered any prayer since 1934 therein. It is also said that
the plaintiffs (Suit-4) have falsely described the temple as
Babari mosque. Same thing has been repeated in the written
statement dated 25.01.1963 filed on behalf of defendant no. 2 in
para 25.
1688. On behalf of Nirmohi Akhara defendants no. 3 and 4
also written statement has been filed wherein they have disputed
the very assertion of construction of any building, i.e., Babari
mosque by Emperor Babar 460 years ago as alleged in para 1
and it is also said that Babar did not make any conquest or
occupation of any territory in India at that time. Similarly, any
damage to the building in 1934 has been denied and
consequently its rebuilding and reconstruction also denied. We
may notice at this stage, in particular, para 13(C) of the written
statement dated 22/24.08.1962 of defendants no. 3 and 4 which
says:
"The said Temple Ram Chabutra has a history of Judicial
scanning since 1885 A.D. and it existence and possession
over temple Ram Chabutra was ever since in possession of
Nirmohi Akhara and no other but Hindus allowed to enter
and worship there and put offering in form of money,
sweets, fruits, flowers etc......"
1689. Similarly in para 38 of their additional written
statement dated 28/29.01.1963 the defendants no. 3 and 4 have
categorically denied that Emperor Babar ever built a mosque as
alleged by the plaintiffs or that the Muslims were ever in
possession of the building in question. Therefore, the case of the
1806
defendants no. 3 and 4 has all through been that the temple of
Lord Rama at the disputed site exist from time immemorial and
thereat neither any construction was made by Babar in 1528 AD
nor any damage etc. caused in 1934 in the said temple and
accordingly they also deny the allegation of placement of any
idol in the disputed building on 22/23.12.1949. Para 11 of the
plaint (Suit-4) has been denied alleging it to be false and
concocted and in para 12 of the written statement it is said that
no such incident ever took place. The report, if any, lodged by
the constable is mischievous and in connivance of the plaintiffs.
1690. The arguments advanced by Sri Jilani, and as adopted
by counsel appearing for other Muslim parties are, that, neither
a place can be said to be a 'Deity' nor a Juristic person, nor every
'idol' will attain the status of a 'Deity' and thereby become a
juristic person, unless it is installed by Shastric procedure i.e.,
by observing process of Pran Pratishtha (vivification). Neither
idols in question placed at the disputed site are 'Deity' nor the
place itself comes within the said notion recognised in law. The
suit filed by plaintiffs no. 1 and 2 (Suit-5) is not maintainable.
Non impleadment of Deity, i.e., idol and place makes Suit-4
untenable. Further submission is, the plaintiff 3 (Suit-5) is
neither competent nor otherwise can represent plaintiffs 1 and 2
(Suit-5), he is not a proper person who can represent the
plaintiffs 1 and 2, and even otherwise as a next friend.
Therefore, Suit-5 is liable to be dismissed. Besides, plaintiffs 1
and 2 not being juridical person, Suit 5 is not maintainable in
law.
1691. Sri Siddique also argued that Pran Pratishtha is
necessary to make an idol 'deity' as held in Jogendra Nath
Naskar Vs. Commissioner of Income Tax, Calcutta AIR 1969
1807
SC 1089. He said that neither in 1949 nor thereafter, at any
point of time, Pran Pratishtha of the idols, placed in the inner
courtyard of the disputed structure, took place and, therefore, no
right of worship of the idols placed therein is vested in or
acquired by any Hindu. He said that plaintiff no. 2 is only a
fictional deity and not a real deity. After construction of
building more than 500 years ago, the deity cannot said to have
continued since then till date.
1692. With respect to Suit-3, contentions of all the learned
counsels appearing on behalf of various Hindu parties, [except
Sri R.L. Verma who is counsel for plaintiff (Suit-3)] is that the
Deities being juristic personalities having not been impleaded as
defendants in Suit-3, though they are necessary parties, hence in
their absence suit cannot proceed.
1693. Responding to the objections of Sri Jilani, Sri Siddiqui
and Sri Irfan Ahmad, Advocates, the other side, represented
through Sri Ravi Shankar Prasad, Sri P.R. Ganesh Ayer and Sri
K.N. Bhatt, Senior Advocates, Sri P.N. Mishra, Sri M.M.
Pandey and other Advocates submit that in Hindu religious
scriptures the concept of 'Deity' extremely vary. It includes a
place or object, i.e. natural things like river, tree, stone,
mountain, mound or even a part of earth connected with divine
activities. Sri Ravi Shankar Prasad submitted that this aspect of
the matter is also crucial and relevant to adjudicate issues no. 14
(Suit-4), 22 and 24 (Suit-5).
1694. Sri P.N.Mishra, Advocate, besides his oral submission,
has also submitted written argument. In respect to the juridical
personality of plaintiffs no.1 and 2 (Suit-5) and consecration
etc., he has said:
"A. According to Shastric (Scriptural) injunctions Sri
1808
Ramajanmasthan Sthandil, a Svayambhu Linga (Symbol)
brought into existence and established by the Lord of
Universe Sri Vishnu Himself. As such inspite of being
decayed, or damaged, or destroyed it shall forever remain
sacred place of Worship as it does not need purification or
consecration or change. Pratistha is required only in respect
of manmade Images/Idols/Symbols of Deities that can be
done by chanting single Mantra XXXI.1 or II.13 of the Holy
Divine Sri Yajurved (Vagasaneyee Samhita also known as
"Sri Shukla Yajurved"). A deity needs to be worshipped by
providing all things which are required for leading a healthy
and excellent life.
B. Svayambhu i.e. Self-built or Self existent or Self-
revealed Lingas (symbols) of Devatas (Gods) or the Lingas
(Symbols) established by Gods, or by those versed in the
highest religious truths, or by Asuras, or by sages, or by
remote ancestors, or by those versed in the tantras need not
to be removed though decayed or even broken. Only
decayed or broken Pratisthita Images/Idols require to be
replaced with new one. In respect of renewal of the images,
"Treatise on Hindu Law" by Golapchandra Sarkar,
(Sastri) reproduces the Shastric injunction (Scriptural law)
as follows:
Raghunandas Deva-Pratistha-Tantram, last paragraph
reads as follows:
8. Now (it is stated) the prescribed mode of Renewal of
Decayed Images. Bhagwan says I shall tell you briefly
the holy ordinance for renewing Decayed Images * * *
Whatever is the material and whatever size of the image
of Hari (or the God, the protector) that is to be renewed; of
1809
the same material and of the same size, and image is to be
caused to be made; of the same size of the same form (and
of the same material), should be (the new image) placed
there; either on the second or on the third day (the image
of) Hari should be established; if, (it be) established after
that, even in the prescribed mode, there would be blame or
censure or sin; in this very mode the linga or phallic
symbol and the like (image) should be thrown away; (and)
another should be established, of the same size (&c.) as
already described, - Haya-Sirsha.
9. God said, -
I shall speak of the renewal in the prescribed mode of
lingas or phallic symbols decayed and the like &c * * *.
(Allinga) established by Asuras, or by sages or by remote
ancestors or by those versed in the tantras should not be
removed even in the prescribed form, though decayed or
even broken.
(Agnipuranam Chapter 103 Poona Edition of 1900 AD.
p.143)
[There is a different reading of a part of this sloke noted in
the foot-note of the Poona Edition of this Puran as one of
the Anandashram series of sacred books: according to
which instead of or by remote ancestors or by those
versed in the tantras
the following should be substituted, namely:
Or by Gods or by those versed in the highest religious
truths.]
10. Now Renewal of Decayed (images is considered);
that is to be performed when a linga and the like are burnt
or broken or removed (from its proper place). But this is
1810
not to be performed with respect but a linga or the like
which is established by a Siddha or one who has become
successful in the highest religious practice, or which is
anadi i.e. of which the commencement is not known, or
which has no commencement. But their Mahabhisheka or
the ceremony of great anointment should be performed:-
this is said by "Tri- Vikrama Nirnaya Sindhu
Kamalakar Bhatta, Bombay Edition of 1900 p.264.
The author of the Dharma-Sindhu says as above in almost
the same words see Bombay Edition of 1988 p.234 of
that work.
[Treatise on Hindu Law by Golapchandra Sarkar,
Sastri (6
th
Edition, published by Easter Law House (1927)
at p.745-748]
C. Alberuni who compiled his book India in or about
1030 A.D. on page 121 has written that the Hindus honour
their Idols on account of those who erected them, not on
account of the material of which they are, best example
whereof is Linga of sand erected by Rama. In his book on
pages 117, 209, 306-07 and 380 he has also narrated about
the Lord of Universe Sri Rama. Relevant extract from page
121 of Alberunis India Translated by Dr. Edward C.
Sachau (Reprint 2007 of the 1
st
Edn. 1910) published Low
Price Publications, Delhi reads as follows:
The Hindus honour their idols on account of those who
erected them, not on account of the material of which they
are made. We have already mentioned that the idol of
Multan was of wood, e.g. the linga which Rama erected
when he had finished the war with the demons was of
sand. Which he had heaped up with his own hand. But
1811
then it became petrified all at once, since the astrologically
correct moment for the erecting of the monument fell
before the moment when the workmen had finished the
cutting of the stone monument which Rama originally had
ordered. (ibid page 121)
D. According to the Hindus Divine Holy & Sacred
Scriptures there are two types of images one Svayambhu
(self-existent or self-revealed or self-built) and other
Pratisthita (established or consecrated). Where the Self-
possessed Lord of Universe Sri Vishnu has placed himself
on earth for the benefit of mankind, that is styled
Svayambhu. It does not require Pratistha. At
Ramajanamasthan the Lord of Universe Sri Vishnu appeared
and placed Himself on the said sacred place which itself
became Svayambhu for the reason that invisible power of
the Almighty remained there which confers merit and
salvation to the devotees. Consecrated artificial manmade
Lepya images i.e. moulded figures of metal or clay; and
Lekhyas i.e. all kinds of pictorial images including chiselled
figures of wood or stone not made by moulds are called
Pratisthita. Sri Mishra then quoted para 4.5 of "Hindu Law
of Religious and Charitable Trusts' of B. K. Mukherjea
5th Edition, Published by Eastern Law House at page 154.
E. According to the Holy Scripture "Sri Narsingh
Puranam" (62.7-14 ) Pratistha of the Lord of Universe Sri
Vishnu should be done by chanting 1st Richa of the Purush
Sukta of Shukla Yajurved [I.e Vagasaneyee Samhita
Chapter XXXI] and be worshipped dedicating prescribed
offerings by chanting 2nd to 15th Richas of the Purush
Sukta. And if worshipper so wish after completion of
1812
worship he may by chanting 16th Richas of the Purush
Sukta pray to Sri Vishnu for going to his His own abode.
Above-mentioned verses of Sri Narsingh Puranam and
Hindi translation thereof reads as follows:
n- --i -il ln-i |
i -i- n-, li -n- ni|| /
ii i n,| liiii -- n|
ni- i n i || s
l n -in- n i- |
inissir - i n ii-n-- || s
l,n|iss ni-in ni-n n|i|
n i in -iss-|- || o
i-i -i | n n-i -- |
ni |n---i -i ni- ||
i-i i -i ii i - |
,ii nii | i i nii|| z
n i -n ln -i i lii- |
ii i ,i i si-i li n || s
-i - n nii-|- |
i-iil-l,-i iln - ||
- i n i -linsln|
i - nin r | i | i-ii|- i
i n r, i ii n s r , nn iii n - i
ini li ni r , iii ~li r i in- - i lli n
r| i i n ini i i i ni r, ,ii
- i i nn ln ri ini r | i n | r| ~i
ini ii-n-i iir i ilr | | ~i i i
n|| in i | ii| ~i i i| i-|
l ln | s-| ~i -i i i in| - i |
i-| ni |n i -| ~i ni l | |
i i ir| ~i i | ir| | i nr| ~i
n, , liii il i-n | l ln | i r| ~i
1813
-n ln r| lii | n- ir| ~i l |
i ii - r ni i r| i ini l
-i, -, n i i-| il l | ; i
-i--ii ii i s -r| - ll, in ni r | ;|
- l i n ni r in i -iii lii| ri
ini r||/ ,z||
(Sri Narsingh Puranam 62.7-14 )
Be it mentioned herein that in the above Sri Narsingh
Puranam 62.13 Sloke enumerates Pradakshina i. e.
Parikrama (circumbulation) as 14
th
means of reverential
treatment of the Deity and thereby makes it integral part of
the religious customs and rituals of service and worship of a
Deity.
F. 1
st
Holy Spell of Purush Sukta of the Holy Devine
Shukla Yajurved [i.e Vagasaneyee Samhita Chapter
XXXI] prescribed by the Holy Sri Narsingh Puranam for
Pratistha of the Lord of Universe Sri Vishnu reads as
follows:
r i|ii i r ii r in |
i l- n - -is-ln-i ii .n - ||||
- i i i| i i - in -riiii i -- ri n
li i, n i i n i ( ) i r| i n-i
; ni --n ln i -l- r -i i lnsi,
+, | n in ili n ll-n i, r
i ln -i ni -| l-in r i |
(ibid as translated by Swami Karpatriji and published by Sri
Radhakrishna Dhanuka Prakasan Samsthanam, Edn. Vikram
samvat 2048)
Simple English translation thereof reads:
The Almighty God who hath infinite heads, infinite eyes;
infinite feet pervading the Earth on every side and
1814
transgressing the universe installed Him in sanctum as
knower of inner region of hearts.
Be it mentioned herein in the Mimamsa Darshan as
commented in Sanskrit by Sri Sabar Swami and in Hindi by
Sri Yudhisthir Mimamsak and Mahabhasya, meaning of
Sahasra has also been given infinite as also one apart
from thousand and according to context one or other
meaning is adopted.
G. "Nitya Karma Puja Prakash" has prescribed a Mantra
of Yajurved [i.e Vagasaneyee Samhita Chapter II.13] for
Pratistha of Lord Ganesh. Relevant portion of the said book
reads as follows:
n i- ni i| i | ni i n
ln-i| l-|ln ii ln-i
ln-i i rii- in l- -i i n r ilr rii
ini i nii| | ln-i si ni i
+ -i ln ini-i- r-ln nl-- ni -l- ni l-- iin |
l i ;r -ini-i s - ln-|
+ - iii ln-n - iii in |
- --i -i-rln ||
; i ln-i ini ni ii ii ii i ( o o
/sr i) | nn n r ( o o zo), iii-in i
( o o zor) nii i ( o o sc) i |
[Nitya Karma Puja Prakash published by Gita Press
Gorakhpur 32nd Edn. 2060 Vikram Samvat at page 244]
H. The Holy "Sri Satpath-Brahman" interpreting said
Mantra II.13 of the Holy Sri Shukla Yajurved [i.e.
Vagasaneyee Samhita] says that Pratistha of all Gods
should be done by said Mantra. Be it mentioned herein that
the Holy Sri Satpath-Brahman being Brahman part of
Divine Sri Shukla Yajurved, interpreting Mantras of said
1815
Vagasaneyee Samhita tells about application of those
Mantras in Yajnas (Holy Sacrifices). Said Mantra II.13 of
the Divine Sri Shukla Yajurved (Vagasaneyee Samhita) as
well as Sri Satpath-Brahman (I.7.4.22) with original texts
and translations thereof read as follows:
-i ln ini-i - r-ln nl-- ni -l- n l-- iin |
l i ;r -i ni-i s- ln-||s||
() ( ln - i- ini) n i ni- n ni ,
( r-ln ;- n ni n ) nii -i-| ; ni i , (;- n
l- iin ) ; ni lr ilrn - iii | (l
i ;r -ini ) ri iln ri , (i ln-) i r| ri,
lnl-n ri ||s||
(ibid Hindi Translation of Padmbhushan Sripad Damodar
Satvalekar,1989 Edn. Published by Swayadhyay Mandal
pardi)
English Translation of the abovenoted Hindi Translation
reads as follows:
May your mind Delight in the gushing (of the ) butter.
May Brihaspati spread (carry through) this sacrifice ! May
he restore the sacrifice uninjured. May all the Gods rejoice
here. Be established/seated here.
Sanskrit text of Sri Satpath-Brahman (I.7.4.22) as printed
in Sri Shukla Yajurvediya Satpath Brahman Vol. I on its
page 150, Edn.1988 Published by Govindram Hasanand,
Delhi 110006 is reproduced as follows:
-i ln ini-i- ln| -i i; . . -in
n- n- -i iln r-ln nl-- ni l- n l-- iilln
l, r n- iiln li i ;r -inil-ln l i
i n- iiln l i- n i- lnln n i- nil il n
||zz|| ir -ii- ||z. (/.)|| i ||/||
English translation of Sri Satpath-Brahman (I.7.4.22) as
1816
printed in Volume 12 of the series The Sacred Books Of
The east under title The Satpath - Brahmana Part I on its
page 215, Edn. Reprint 2001 Published by Motilal
Banarasidass, Delhi 110007 is reproduced as follows:
22. [He continues, Vag. S. II, 13]: 'May his mind delight
in the gushing (of the) butter!' By the mind, assuredly, all
this (universe) is obtained (or pervaded, aptam)): hence he
thereby obtains this All by the mind.-'May Brhaspati
spread (carry through) this sacrifice! May he restore the
sacrifice uninjured!' - he thereby restores what was torn
asunder.-'May all the gods rejoice here!'. 'all the gods,'
doubtless, means the All : hence he thereby restores (the
sacrifice) by means of the All. He may add, 'Step
forward!' if he choose; or, if he choose, he may omit it.
(Sri Satpath-Brahman I.7.4.22)
I. 19
th
Holy Spell of Naradiya Sukta of the Holy Divine
Shukla Yajurved [i.e. Vagasaneyee Samhita Chapter
XXIII] is also widely applied by the Knower of the
Scriptures to invoke and establish a deity. Said Mantra reads
as follows:
nii i -i niln ri-r l iii -i l ln ri-r li|i
-i lliln ri-r i --|
ir-il ni i-i --il ni i-||
English Translation of this Mantra based on Hindi
Translation of Padmbhushan Sripad Damodar
Satvalekar,1989 Edn. Published by Swayadhyay Mandal
pardi reads as follows:
O, Lord of all beings we invoke Thee. O, Lord of
beloved one we invoke Thee. O, Lord of Wealth we
invoke Thee. O abode of all beings Thou are mine. O,
Sustainer of Nature let me know Thee well because Thee
1817
the sustainer of Universe as embryo are Creator of All.
[Shukla Yajurved Chapter XXIII Mantra 19]
J. The vivified image is regained with necessaries and
luxuries of life in due succession. Change of clothes,
offering of water, sweets as well as cooked and uncooked
food, making to sleep, sweeping of the temple, process of
smearing, removal of the previous days offerings of
flowers, presentation of fresh flowers and other practices are
integral part of Idol-worship. In public temple, in olden days
these were being performed by Brahmins, learned in Vedas
& Agamas. (Para 4.7 Hindu Law of Religious and
Charitable Trusts of B. K. Mukherjea 5th Edition,
Published by Eastern Law House at page 156.)
1695. Sri Ravi Shankar Prasad, Senior Advocate elaborated
the concept of Deity as per the notions of ancient Hindu
scriptures and, that, how can it be ascertained as to whether the
place of worship of Hindus is Deity within the term and
understanding in Hindu Law, how the properties held by
Deity is alienable and also the development of Hindu Law. He
placed, in extentio, certain excerpts from B.K.Mukherjea's
The Hindu Law of Religious and Charitable Trusts (Tagore
Law Lectures Fifth Edition revised by Sri A.C. Sen published
by Eastern Law House in 1983 reprinted in 2003) pages 25, 26,
27, 38, 39, 40, 152 to 154, 156 to 163 besides several authorities
of the Apex Court, this Court, Privy Council and various High
Courts. The concept of deity, a very distinguishing feature of
Hindu faith is one that, i.e., eternal, permanent and omnipresent
wherein the deity is the image of the Supreme Being. The
temple is the house of the deity and to constitute a temple it is
enough if the people believe in its religious efficacy, i.e., there is
1818
some supreme super power existing there whom they need to
worship and invoke its blessings.
1696. It is contended that religious purpose under the
Hindu law must be determined according to Hindu notions. In
support of his submission, he placed reliance on para 2.27 on
page 75 of The Hindu Law of Religious and Charitable
Trusts by B.K. Mukherjea (supra), which says:
"These observations, if I may say so, apply with full force
to trusts created by Hindus for religious purposes.
Undoubtedly the court and not the donor is the judge, of
whether an object is charitable or not, but the court cannot
enter into the merits of particular religious doctrine, and
therefore must remain neutral. The divine service of a
particular religion is defined by the doctrines of the
religion itself and no court can appreciate their spiritual
efficacy, unless it knows these doctrines and hypothetically
admits them to be true. In controversial matters the court
cannot possibly decide whether the doctrines are beneficial
to the community or not. It has got to act upon the belief
of the members of the community concerned, and unless
these beliefs are per se immoral or opposed to public
policy, it cannot exclude those who profess any lawful
creed from the benefit of charitable gifts..."
1697. It is said that the right of a deity of being worshipped
by its followers ought not to be compared with a secular law
relating to management of deities for they are fundamentally
distinct. The present case relates to the site/place of birth of
Lord Rama, i.e., Ramjanambhumi which itself is a deity for the
reason of the belief and faith of Hindu public since time
immemorial that the Lord of Universe, the Supreme Being
1819
Vishnu manifested thereat as an incarnation in human form
making that place sacred and pious and mere visit and Darshan
thereof would be sufficient to shower blessing, happiness and
salvation to the worshippers. By the very nature, the deity in
question is not only inalienable but cannot be possessed or
owned by any individual, legal or natural. This deity, i.e., the
place itself is a legal person, i.e. a juridical person possessing all
the facets of a legal person as recognized in law.
1698. Sri Prasad submitted that a self created Deity i.e.
Sayambhu, need not be in a particular shape or form and even a
place can be said to be a Deity. It is extra commercium, non-
destructible, inalienable, and even if there is no structure, it is a
temple if has the sanctity of pious place being worshipped by
the believers with a faith that the religious merits shall be gained
by them on offering prayer or worship thereat.
1699. Sri Prasad relied on Ram Jankijee Deities & Ors. Vs.
State of Bihar & Ors. (1999) 5 SCC 50=AIR 1999 SC 2131
(para 13 to 28) and Saraswathi Ammal & Anr. Vs. Rajagopal
Ammal AIR 1953 SC 491 (para 6) to demonstrate as to what is
the concept of deity in Hinduism. He submits that the religious
issues pertaining to Hindu religion are to be considered and
decided according to Hindu notions and referred to Shiromani
Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath
Dass & Ors. (Supra) (para 30 to 42); Poohari Fakir
Sadavarthy Vs. Commissioner, H.R. & C.E. AIR 1963 SC 510
(at page 512); Thayarammal Vs. Kanakammal & Ors. (2005)
1 SCC 457 (para 16); Idol of Thakurji Shri Govind Deoji
Maharaj, Jaipur Vs. Board of Revenue, Rajasthan, Ajmer &
Ors. AIR 1965 SC 906 (para 6); Mahant Ram Saroop Dasji
Vs. S.P.Sahi, Special Officer-in-charge of Hindu Religious
1820
Trusts and others AIR 1959 SC 951 (para 10); Manohar
Ganesh Tambekar & Ors. Vs. Lakhmiram Govindram &
Ors. (1888) ILR 12 Bom 247.
1700. Once an idol is always an idol and it never dies. For
the above proposition, he referred to the Madras High Court's
decision in Board of Commissioners for Hindu Religious
Endowments, Madras Vs. Pidugu Narasimham & Ors. AIR
1939 Madras 134 (at page 135) and T.R.K. Ramaswami Servai
& Anr. Vs. The Board of Commissioners for the Hindu
Religious Endowments, Madras, through its President AIR
(38) 1951 Madras 473 (para 47). The meaning; definition and
concept of Temple in general as well in legislative enactments
must be read and understood in the light of the Shastrik Law,
otherwise it would be ultra vires of the Constitution. He refers to
Gedela Satchidananda Murthy Vs. Dy. Commr., Endowments
Deptt., A.P. & Ors. (2007) 5 SCC 677 (at page 685); T.V.
Durairajulu Naidu Vs. Commissioner, Hindu Religious and
Charitable Endowments (Administration) Department,
Madras AIR 1989 Madras 60 (para 18); Sri Adi Visheshwara
of Kashi Vishwanath Temple, Varanasi & Ors. Vs. State of
U.P. & Ors. (1997) 4 SCC 606 (para 30); Gokul Nathji
Maharaj & Anr. Vs. Nathji Bhogi Lal AIR 1953 All. 552;
Pramath Nath Mullick Vs. Pradhyumna Kumar Mullick &
Anr. AIR 1925 PC 139 (at page 143); Bhupati Nath Smrititir
the Bhattacharjee Vs. Ram Lal Mitra & Ors. 1909 (3) Indian
Cases (Cal.) (FB) 642 (para 73).
1701. The manner in which a deity can hold property is
illustrated cited before us the decision of the Apex Court in
Jogendra Nath Naskar Vs. Commissioner of Income-Tax
(supra) (para 5 and 6); Deoki Nandan Vs. Murlidhar & Ors.
1821
AIR 1957 SC 133 (para 6); Kalanka Devi Sansthan Vs. The
Maharashtra Revenue, Tribunal Nagpur and Ors. AIR 1970
SC 439 (para 5 at page 442) and Narayan Bhagwantrao
Gosavi Balajiwale Vs. Gopal Vinayak gosavi & Ors. AIR
1960 SC 100 (para 35 to 38).
1702. An idol is extra commercium and inalienable. He
supported the above proposition by citing Mukundji Mahraj
Vs. Persotam Lalji Mahraj AIR 1957 Allahabad 77 (para 28
and 29); Kasi Mangalath Illath Vishnu Nambudiri & Ors Vs.
Pattath Ramunni Marar & Ors. AIR 1940 Madras 208; Smt.
Panna Banerjee and Ors. Vs. Kali Kinkor Ganguli AIR 1974
Cal. 126 (para 65 and 66); Kali Kinkor Ganguly Vs. Panna
Banerjee & Ors. AIR 1974 SC 1932 (para 23 and 25); Khetter
Chunder Ghose Vs. Hari Das Bundopadhya (1890) 17 ILR
Cal. 557 (at page 559).
1703. Sri Prasad refers to State of West Bengal Vs. Anwar
Ali Sarkar & Anr. AIR (39) 1952 SC 75 (para 85) and read the
observations how Hindu Law has developed. He relied on the
History of Dharmashastra by P.V. Kane Vol. 2, Part-2,
Chapter XXVI page 911 and Vol. 3 page 327 and 328 and also
Bumper Development Corp. Ltd. Vs. Commissioner of Police
of the Metropolis and others 1991 (4) All ER 638; Addangi
Nageswara Rao Vs. Sri Ankamma Devatha Temple
Anantavaram 1973 Andhra Weekly Report 379.
1704. To illustrate the concept of deity, i.e., continued
supernatural power, omnipotent, never dying, never changed, he
cited Maynes' Hindu Law & Usages, 16
th
Edn. and the The
Classical Law of India by Robert Lingat.
1705. Sri R.L.Verma, learned counsel appearing on behalf of
Nirmohi Akhara defendant No.3 raised objection about the
1822
maintainability of suits through next friend and contended that
there is no averment in the entire plaint (Suit-5) as to why the
plaintiff no.3 be allowed to file suit on behalf of plaintiffs no. 1
and 2 as their next friend. He submits that neither there is any
averment that the already working Shebait is not looking after
the Deity faithfully and religiously nor there is any averment
that there is no Shebait at all of the Deities, plaintiffs no.1 and 2,
nor there is any averment that plaintiff no.3 himself is a
worshipper of the Deities (plaintiffs no.1 and 2) and therefore, is
interested in the welfare and proper management of the property
and daily care of Deity themselves. Sri Verma submits that
Order XXXII, Rule 1 in terms has no application to Suit-5. The
suit, as framed, is not maintainable through the next friend,
hence, is liable to be rejected on this ground alone.
1706. Sri Verma further submits that O.P.W.-2 i.e. late
D.N.Agarwal in his own statement under Order X, Rule 2
recorded on 20.4.1992 has admitted that the idols kept at Ram
Chabutara, in the outer courtyard was shifted to the inner
courtyard and kept under the central dome in the disputed
building in the night of 22/23
rd
December, 1949. Further that it
is also an admitted position that the idols while kept on Ram
Chabutara in the outer courtyard were being looked after and
managed by the priest of Nirmohi Akhara and the outer
courtyard was in possession of Nirmohi Akhara. It means that
the idols belong to Nirmohi Akhara, shifted from Ram
Chabutara to the central dome of the disputed building and that
being so, the idols cannot be held independent legal entity
outside the religious endowment i.e. "Nirmohi Akhara".
1707. Sri M.M. Pandey, learned counsel for the plaintiffs
(Suit-5), in respect to Issues No. 1 and 21 (Suit-5) has submitted
1823
as under:
A. Existence of a Supreme Being which controls
everything and possesses the capacity of conferring good on
human beings, is admitted alike by Islam (Allah),
Christianity (God) and Hindu Dharma (Bramhan or Onkar).
This Supreme Being is outside the realm of Courts, hence is
not a Juristic entity. According to Islam, a Messenger
(Prophet Mohammad) pronounced the commands of Allah in
the form of Quran and other spiritual edicts; according to
Christianity too, a Messenger came earlier (Christ Son of
God) to deliver the Gospel of God. According to Hindus,
Bramha manifests Himself in human form by 'Reincarnation'
(Avatar) with all the powers of the Supreme Being subject to
self-imposed human limitations. William Finch recorded this
popular perception about Ram in early 17th Century.
Bramha too is seen in many Forms: Bramha (the Creator),
Vishnu (the Preserver), Mahesh (the Destroyer), Shakti (the
Universal Energy) etc. Ram and Krishna are Reincarnations
of Vishnu; In Shrimad Bhagwat Gita Chapter X, verse 31,
Shri Krishna declared: "Among warriors, I am Ram."
B. This self-manifestation of the Supreme Being is
known as SWYAMBHU reincarnation, and the place of
reincarnation is treated to be sacred just as Islam holds
Mecca (birthplace of Prophet Mohammad) or Christianity
holds Bethlehem/Jerusalem (birthplace of Christ) as sacred.
While Islam and Christianity do not have a concept of Deity,
Hindu Dharma has elevated the concept of Sacredness into
an object of Divinity fit for Worship and recognises it as a
Deity in a physical form too with a Faith that its worship has
the capacity of conferring well. At the same time, "a Hindu
1824
does not worship the 'Idol or the material body made of clay
or gold or other substance' as a mere glance of the mantras
or prayers will show. They worship the eternal Spirit of the
Deity, or certain attributes of the same, in a suggestive form,
which is used for the convenience of contemplation as a
mere symbol or emblem. It is the incantation of the mantras
peculiar to a particular Deity that causes the manifestation or
presence of the Deity or, according to some, the gratification
of the Deity.
C. A mere birthplace without a physical outward shape
may be a Deity. There is no question of consecration of
Swyambhu Deity. (See Addangi Nageswara Rao (supra)
D. In addition to Swyambhu Deities, Idols/Images are
made of any material and are CONSECRATED with the
Spirit of Supreme Being through certain Vedic rites, known
as Pran-Pratishtha whereby they become fit receptacles of
Divinity; such Idols/Images too are recognised as Deities. In
these Suits, the Plaintiffs of OOS 4 of 1989, Sunni Board &
others, admitted in paras 11 and 23 of their plaint that on
23.12.1949, "a large crowd of Hindusentered the
mosque and desecrated the mosque by placing Idols inside
the mosque". This implies an admission that the Idols were
Deities as known to Hindu law, otherwise mere images (like
printed pictures) could not desecrate the mosque; Sunni
Board and others are barred/estopped, by this admission,
from urging that the Idols were not consecrated.
E. 'Images/Idols' are symbols of Supreme Being; in
worshipping the Image, the Hindu purports to worship the
Supreme Deity and none else. It is for the benefit of the
worshippers that there is a concept of Images of Supreme
1825
Being which is bodiless, has no attribute, is pure Spirit and
has got no second (B.K. Mukharjea, 1983 Edn. p.26). The
'Self-revealed' Images are called SWYAMBHU where the
Self-possessed Vishnu has placed himself on earth in stone
or wood for the benefit of mankind. Thus 'Asthan Ram
Janmabhumi', Plaintiff No. 2 in OOS 5 of 1989 is a
Swyambhu Deity the place where Lord Vishnu manifested
Himself and was born as RAM, son of Kaushalya/King
Dashrath.
F. The decisions of Indian Courts as well as Privy
Council have held uniformly that Hindu Idol is a Juristic
Person. Hindu Idol is according to long established authority
founded upon the religious Customs of Hindus and
recognition thereof by Courts of Law, a juristic entity. 'Deity
has a juridical status with power of suing and being sued. Its
interests are attended to by the person who has the Deity in
his charge and who in law is his manager with all the powers
which would in these circumstances, on analogy, be given to
an infant heir. This doctrine is firmly established.
G. As a Juristic Person, the 'Hindu Deity' is a Class by
Himself with no exact parallel. The Deity in short is
conceived of as a living being and is treated in the same way
as the master of the house would be treated by his humble
servant. The daily routine of life is gone through with minute
accuracy, the vivified Image is regaled with necessities and
luxuries of life in due succession even to the changing of
clothes, the offering of cooked and uncooked food and
retirement to rest.
H. Endowment in favour of Deity is a perpetual estate; it
is capable of receiving and holding property, but it does not
1826
possess a power of alienation, hence endowment in favour of
Deity is necessarily a tied up or perpetual estate; absolute
gifts of lands or money perpetually to an Idol or for other
religious purposes have been held to be valid in Hindu Law
from early times. A religious endowment does not create
title in respect of the dedicated property in any body's
favour, and property dedicated for religious charitable
purpose for which the owner of the property or donor has
indicated no administrator or manager, a property dedicated
for general public use is itself raised to the category of a
Juristic Person and such a property vests in the property
itself as a Juristic Person. This special legal status squarely
applies to Asthan Ram Janma Bhumi, Plaintiff No.2 in OOS
5 of 1989; the spot where Ram was born, and all
properties appurtenant thereto belong to and vest in the
spot itself as juristic person. No body else, not even the
Shabait can become owner of the Deity or property of
Deity.
I. Since such vesting of the property is a perpetual estate
and the Deity itself does not possess the power of its
alienation, it follows that no law can divest the Deity of its
property under any circumstance whatsoever. A Temple is
the 'house' of the Deity. By destroying the house, neither the
Deity nor Deity's property, on which the house stood, could
cease to belong to Deity. Section 18 of Transfer of Property
Act recognises that the rule against perpetuity under that
Act, does not apply to transfer of property for the benefit of
public; such exclusion is in-built in Hindu Law itself.
J. Vide, page 19-20 of Mulla's "Principles of Hindu
Law, 1958 Edn, some of the important recognised
1827
Dharmashastras are known as Smritis of Manu (200 BC),
Yajnavalkya (1st Century AD p. 24)), Narad (200 AD p.
26)), Parashara, Brihaspati, Katyayana (4th-5th Century
AD p.32) etc; they are of universal application, not in
substitution for another but all treated as supplementary to
each other (-p.20).
K. At page 33, Mulla records: "Katyayana maintains
unimpaired the distinctive qualities of Smriti of Brahaspati
to which he freely refers. His exposition is authoritative and
remarkable for its freshness of style and vigorous approach.
There can be little doubt that this Smriti must have been
brought into line with the current law. It must have
commanded a wide appeal as may readily be gathered from
the profuse manner in which it has been quoted in all leading
commentaries. The arduous task of collecting all the
available texts of Katyayana from numerous commentaries
and digests was accomplished by Mahamahopadhyaya Kane
who collated and published in 1933 about one thousand
verses of the Smrtiti on Vyavahara (Procedure) with an
English translation".
L. Statement of law in Katyayana Smriti is of special
significance in these suits. The force, sanctity and King's
duty relating to Temples has been strongly emphasised in the
Hindu Law from ancient times. Apararka [held to be an
Authority under Hindu Law by PC in Buddha Singh Vs.
Laltu Singh, 42 I.A. 208 = ILR (1915) 37 All 604) (Mulla
p.51-52 acknowledged by Banares School] says that King
should not deprive Temples of their properties (History of
Dharam Shastra Government Oriental Series - by P.V.
Kane, Volume II Part II page 913). At page 911 Kane
1828
quotes Yagnavalkya that it is part of King's duty to prosecute
and fine persons interfering with or destroying the property
of Temples; he cites Manu (IX/280) requiring the King to
pronounce death sentence on who breaks a Temple, and him
who breaks an image to repair the whole damage and pay a
fine of 500 pannas. The Deity and Temple not only served
the object of Worship of Divine, but also served social
purpose.
M. A significant recent decision of English Courts has
recognised the concept of Hindu Idol's disability and
representation by 'next friend', namely Bumper
Development Corporation Ltd Vs. Commissioner of Police
of the Metropolis & Others (supra) (including Union of
India and other Indian Parties); a decision rendered by the
Trial Court was upheld by Court of Appeal and House Lords
refused Leave to Appeal against CA decision, popularly
known as Nataraj Case. In Tamil Nadu, near a 12th Century
Temple which had laid in ruins since 13th Century, (called
Pathur Temple), and remained un-worshipped since
centuries (at pages 643 & 640), a bronze Hindu Idol, known
as Siva Nataraj, was found by a labourer, Ramamoorthi, in
1976 during excavation of the ruins. The Nataraj Idol was
sold through several hands and ultimately reached London
market; criminal investigation for offence of theft of Idol
was started and London Metropolitan Police seized it.
Bumper Development Corporation laid claim to it as
purchaser and sued for its possession and damages. Several
other Claimants were impleaded to the suit: these included
Union of India, State of Tamil Nadu, Thiru Sadagopan
(Claimant No 3) as "the fit person" of the Temple and
1829
Temple itself (Claimant No. 4) through Claimant No3. (The
concept of "fit person" is same as "Next Friend" at page
643). During pendency of the proceedings, a Sivalingam
(which too was found buried in the ruins of the Temple) was
reinstated as an object of worship at the site of the Temple.
The Trial Judge, relying upon B.K.Mukherjea's Hindu Law
of Religious and Charitable Trusts (page 646 of Report)
held that Claimant No4 (Temple) suing through Claimant
No. 3 as 'fit person, or custodian or next friend' (page 643 of
Report) had proved his title superior to that of Bumper and
'the pious intention of 12th Century notable who gave the
land and built the Pathur Temple remained in being and was
personified by the Sivalingam of the Temple which itself
had a title superior to that of Bumper'. The Court of Appeal
upheld the finding of the Trial Court Judge that under Hindu
Law, the Temple was a juristic entity and Claimant No. 3
(next friend Thiru Sadagopan) had the right to sue and be
sued on behalf of the Temple. The right of the Temple
through the Next Friend to possess the Nataraj Idol was
upheld (page 648 of Report); House of Lords refused Leave
to Appeal (page 649 of Report). This 20th Century decision
of English Courts has striking similarity with the present
Ram Janmabhumi case: 12th Century Temple remained in
ruins & un-worshipped through centuries (in our case it was
11th-12th Century Vishnu-Hari Temple which was
demolished in 1528 and Babri Mosque, DS was erected at its
place, so that the Temple/Deity 'remained in ruins with
existing foundations'). During the pendency of Bumper
Development Corporation case, a Shivalingam, found buried
in the ruins of the Temple was 'reinstated'. In our case, ASI
1830
found an ancient 'Circular Shrine' embedded in disputed
area, DS was destroyed on 6.12.1992, and at its place a
make-shift Temple was erected at Ram Janma Bhumi with
Bhagwan Shri Ramlala installed in it; so both Deities Plffs 1
& 2 of OOS 5 of 1989 got into position. In Bumper case, the
'pious intention of 12th Century' dedication was held by the
Trial Court 'to remain in being' as personified by the
Sivalingam of the Temple, a juristic entity, which was
represented by 'Next Friend. The same concept is laid down
in the case of Adangi Nageswara Rao Vs. Sri Ankamma
Devatha Temple (supra) (paras 6 & 8 see para 36 of these
Arguments). So also, in our case, Vishnu-Hari Temple of
11th-12th Century must be deemed 'to remain in being' on
erection of make-shift Temple coupled with Circular Shrine
and the Deity/Temple Plaintiffs 1 & 2 must be held to be
duly represented through Plaintiff No. 3 in OOS 5 of 1989 as
Next Friend.
N. As mentioned earlier, a Hindu Deity is a Class by itself
(See Para 40), there is no exact analogy or parallel. Its affairs
are managed by a Shebait, but the Shebait is neither owner
nor trustee of the Deity or its property as known to Indian
Trusts Act (Section 1). 'Beneficiary' of the dedication (actual
or assumed) is the Deity and every Worshipper/Devotee; the
latter has interest enough to force the Shebait to perform his
functions duly even through a Court action, if necessary.
Supreme Court has held in the case of Bishwanath Vs. Sri
Thakur Radha Ballabhji (AIR 1967 SC 1044) that
worshippers of an Idol are its beneficiaries, though only in a
spiritual sense, and persons who go in only for the purpose
of devotion have, according to Hindu Law and religion, a
1831
greater and deeper interest in temples than mere servants
who serve there for some pecuniary advantage; it goes on to
say: "That is why decisions have permitted a worshipper in
such circumstances to represent the Idol and to recover the
property for the Idol". It is the duty of the State (King) to
protect the Deity and its property a shade of this duty is
found in Section 92 CPC. [In para 40 of Guruvayur
Devasom Managing Committee Vs. C.K. Rajan, AIR 2004
SC 561, the Supreme Court has held, "In any event, as a
Hindu Temple is a juristic person, the very fact that S. 92 of
the Code of Civil Procedure, seeks to protect the same, for
the self-same purpose, Arts. 226 and 32 could also be taken
recourse to."] Shebait cannot alienate the property of the
Deity.
O. A religious endowment does not create title in respect
of the dedicated property in any body's favour, and property
dedicated for religious charitable purpose for which the
owner of the property or donor has indicated no
administrator or manager, a property dedicated for general
public use is itself raised to the category of a Juristic Person
and such a property vests in the property itself as a Juristic
Person. This special legal status squarely applies to Asthan
Ram Janma Bhumi, Plaintiff No.2 in OOS 5 of 1989; the
spot where Ram was born, and all properties appurtenant
thereto belong to and vest in the spot itself as juristic person.
P. An idol is in the position of a minor and when the
person representing it leaves it in a lurch, a person interested
in the worship of the idol can certainly be clothed with an ad
hoc power of representation to protect its interest. [See
Bishwanath Vs. Shri Thakur Radha Ballabhji (supra)].
1832
Q. Temples are sancrosanct and there cannot be alienation
of a public temple under any circumstance being res extra
commercium. In this regard he placed reliance on
Mukundji Mahraj Vs. Persotam Lalji Mahraj (supra)
(Para 28-29); Manohar Ganesh Tambekar Vs. Lakhmiram
Govindram (supra) (Para 88); Kali Kinkor Ganguli Vs.
Panna Banerji (supra) (Paras 24-25, Page 1936); and, Kasi
Mangalath Nath Illath Vishnu Namboodiri (supra) (Para
2).
R. Smt. Panna Banerjee Vs. Kali Kinkar (supra) (Para 65-
66) cited to show that the deity cannot be sold. It is not a
property and none can be its owner not even its founder.
S. Khetter Chunder Ghosh Vs. Hari Das
Bandopadhyay (supra) (para 66, p. 559) is an authority for
the proposition that the deity is not a property. None can
own it. Idol is not a transferable property.
T. The fact is that the disputed area has always been
considered to be the Deity . The deity in the present case
is Sri Ram Janmasthan, being the place where Sri Ram
Lalla is Virajman that is resident. The said disputed area
has always been considered sacred by the Hindus before and
even after the construction of the disputed structure. The
extensive archaeological evidence found by excavation by
the Archaeological Survey of India clearly shows that before
the construction of the structure known as the Babri
Masjid in 1528 , there was an existent Hindu temple
underneath it.
U. The Hindu Law of Religious and Charitable
Trusts by B.K. Mukherjea also states at Page 160-162:
Para 4.13. ....... The Smriti writers have laid down that if
1833
an image is broken or lost another may be substituted in
its place; when so substituted it is not a new personality
but the same deity, and properties vested in the lost or
mutilated thakur become vested in the substituted thakur.
Thus, a dedication to an idol is really a dedication to the
deity who is ever-present and ever-existent, the idol being
no more than the visible image through which the deity is
supposed specially to manifest itself by reason of the
ceremony of consecration.
V. Presence of an idol is not the only consideration to
determine whether the place is a temple or not; what is
important is whether a certain group of Hindus consider it
sacred or whether a certain group can feel divine presence
in the place.
W. An Idol is not a precondition. If the public goes for
worship and consider that there is a divine presence, then it
is a temple. He relied on Ram Janki Deity Vs. State of
Bihar, 1999 (5) SCC 50 (Paras 13 to 19); P.V. Durrairajulu
Vs. Commissioner of Hindu Religious Trusts, AIR 1989
Madras 60 (Para 18).
X. Referring to Poohari Fakir Sadavarthy of Bondilipuram
(supra) (Para 8) Sri Pandey contended that the institution
will be a temple if two conditions are satisfied one it is a
place of public religious worship and the other it is used
as of right by the Hindu community or any section thereof as
a place of worship. (See
Y. Existence of idol not necessary if the public which go
there consider that there is a divine presence in a particular
place and by offering worship at that place they are likely to
be the recipient of the bounty or blessings of God, then you
1834
have got the essential feature of a temple. The test is not the
installation of an idol and the mode of its worship. Here Sri
Pandey refers T.R.K. Ramaswamy Servai and Anr. Vs.
The Board of Commissioners (supra) (Para 47); Board of
Commissioners of Hindu Endowment Vs. P. Narasimha
(supra) (Para 5 page 135); and Gedela Satchidanand Murti
(supra) (Para 16, pages 684 and 685).
Z. The nature of Hindu religion is monism. It believes in
one supreme-being who manifests himself in many forms.
This is the reason why Hindus start adoring any deity either
handed down by tradition or brought by a Guru, Swayambhu
and seek to attain the ultimate supreme as held in Sri Adi
Vishweshara of Kashi Vishwanath Temple (supra) (Para
30 page 631).
AA. According to Hindu notion what is worshipped in a
temple is not the stone image or image made of wood. It is
the God behind the image which is the object of worship.
The real owner of the property dedicated to a temple is
deemed to be God himself represented through a particular
idol or deity which is merely a symbol. Property worshipped
for more than 300 years, there can be no direct evidence of
consecration. After the length of time it is impossible to
prove by affirmative evidence that there was consecration.
However, the idol was duly recognized by all who believed.
[See Gokul Nath Ji Maharaj Vs. Nathji Bhogilal (supra)
(para 4 and 5)].
AB. Not only the area where Sri Ram Lalla is Virajman and
is believed to be his place of birth as a deity but the entire
complex is elevated to the status of a deity because the
dedicated property gets imbued with a sacred character.
1835
AC. Mahant Ram Saroop Dasji Vs. S.P. Sahi (supra)
(Pages 958-959, Paras 10 & 12) was cited and it is submitted
that it is difficult to visualize that a Hindu private Debuttar
will fail for a deity is immortal. Even if the idol gets broken
or lost or stolen another image may be consecrated and it
cannot be said that the original object has ceased to exist. An
idol which is a juridical person is not subject to death
because the Hindu concept is that the idol lives for ever and
placed reliance on Idol of Thakur Sri Govind Dev Ji
Maharaj (supra) (Page 908, Para 6 ).
AD. Deity is a living being to be treated like a master. It is
not a moving chattel. Hindu idol is not property. Custodian
cannot destroy or cause injury. Pramatha Nath Mullick Vs.
Pradhyumna Kumar Mullick (supra) (Para 9).
AE. Referring to Full Bench decision of Calcutta High
Court in Bhupati Nath Smrititirth Bhattacharjee (supra)
(Para 73) Sri Pandey contended that as per Shastric Hindu
Law if the image is broken or lost another may be substituted
in its place and when so substituted it is not a new
personality but the same deity with properties previously
vested in the lost or mutilated Thakur.
AF. The question as to what portion of the property is
sacred is irrelevant since Hindus consider the entire area
being the place of birth of Sri Ram as a deity in itself being
the Sri Ram Janmasthan / Sri Ram Janmabhoomi, being
the Plaintiff No.2 .The presence of Sri Ram Lalla Virajman,
being the Plaintiff No.1 on the said Sri Ram Janmasthan
( being the Plaintiff No.2 )does not detract from the fact that
the entire disputed area is the place of birth of Sri Ram and
therefore a deity in itself to the Hindus. The witnesses
1836
including foreign travelers have repeatedly confirmed that
the entire premises has been worshipped, parikrama was
undertaken by the devotees, even after the construction of
the disputed structure. He submitted that there has been no
denial of the above statement by any of the parties . He
referred to paras 20 and 22 of the plaint and pointed out that
the same have not been denied.
AG. Any worshipper is entitled to act on behalf of the Idol
if the idol is undefended by a Shebait and cannot look after
itself. This view finds support in Bishwanath Vs. Shri
Thakur Radha Ballabhji, (supra) (para 10 and 11) and
Veruareddi Ramaraghava Reddy Vs. Konduru Seshu
Reddy, 1966 Supp SCR 270.
AH. In the present case since the deities of Sri Ram
Janmabhumi and Sri Ram Lalla Virajman were not being
able to look after themselves and no one was acting to
protect their interests and their premises were being
occupied or was being attempted to be occupied by those
who were intending to extinguish the very right to be
worshipped of the deities and repeated attempts were being
made to interfere with the possession and the right of being
worshipped by the devotees , hence concerned worshippers
compromising of eminent and spiritual men of the Hindu
community being represented by the Plaintiff No.3 were
forced to approach the Court to protect the right of the
deities (being the Plaintiffs No.1 and 2 ) to be worshipped .
AI. In support of the contention that the place of worship
itself and the Deities seated at the disputed site are juridical
persons Sri M.M. Pandey relied on Guruvayur Devaswom
Managing Committee and anr. Vs. C.K. Rajan (Supra);
1837
Manohar Ganesh Tambekar Vs. Lakhmiram Govindram
(supra); Avadh Kishore Dass Vs. Ram Gopal, 1979 SC
861; Angurbala Mullick Vs. D. Mullick, AIR 1951 SC 293;
Kamaraju Venkata Krishna Rao Vs. Sub-Collector,
Ongole, AIR 1969 SC 563; Thayarammal Vs.
Kanakammal (supra); Krishna Singh Vs. Mathura Ahir,
AIR 1972 Allahabad 273; Sarangadeva Periya Matam Vs.
Ramaswami Goundar, AIR 1966 SC 1603;
Vallabhacharya Swami Varu (Deity) of Swarna Vs. Deevi
Hanumancharyulu, AIR 1979 SC 1147; Gollaleshwar Dev
Vs. Gangawwa Kom Shantayya Math, AIR 1986 SC 231;
Shiromani Gurudwara Prabandhak Committee Amritsar
Vs. Shri Som Nath Dass (supra); Hindu Religious and
Charitable Endowments, Mysore Vs. Ratnavarma
Heggade, AIR 1977, SC 1848; Ram Jankijee Deities Vs.
State of Bihar (supra) (p.50); Gokul Nathji Maharaj Vs.
Nathji Bhogi Lal (supra); Bishwanath Vs. Shri Thakur
Radhaballabhji, (supra); Kalanka Devi Sansthan (supra);
Jogendra Nath Naskar Vs. Commissioner of Income-tax
(supra); P.V. Sadavarty Vs. Commissioner of Income-tax,
AIR 1963 SC 510; Gurudwara Prabandhak Committee
Vs. Shiromani GPC, 2004 (4) SCC 146; Deoki Nandan Vs.
Murlidhar (supra); Official Trustee of West Bengal Vs.
Commissioner of Income-tax, AIR 1974 SC 1355; Idol of
Thakurji Shri Govind Deoji Maharaj, Jaipur (supra);
Vemareddi Ramaraghava Reddy Vs. Konduru Seshu
Reddy, AIR 1967 SC 436; K. Manahunaitha Desikar Vs.
Sundaralingam, AIR 1971 Madras 1 (FB).
1708. Sri K.N. Bhat, Senior Advocate answering the issues
no. 1 and 2 (Suit-5), contended that Bhagwan Sri Ram of
1838
Ayodhya is undoubtedly a deity as such a juristic person with
capacity to sue and being sued. Referring to B.K. Mukherjea's
Hindu Law of Religious and Charitable Trusts (supra) in his
written arguments he says:
A. A Hindu idol, the Judicial Committee observed in
one of its recent pronouncements, is according to long
established authority founded upon the religious customs
of the Hindus and the recognition there of by Courts of
Law, a juristic entity. It has a juridical status with the
power of suing and being sued. You should remember,
however, that the juridical person in the idol is not the
material image, and it is an exploded theory that the
image itself develops into a legal person as soon as it is
consecrated and vivified by the Pran Pratistha ceremony.
It is not also correct that the Supreme Being of which the
idol is a symbol or image is the recipient and owner of the
dedicated property. ( p.38.)
B. From the spiritual standpoint the idol might be to the
devotee the very embodiment of Supreme God but that is
a matter beyond the reach of law altogether. (p.39.)
C. The early Vedic hymns make no allusion to idol
worship, and Max Muller held that idolatry did not exist
among them. The religion of the Vedas, he declared,
knows no idols. The Jabala Upanishad says, Images are
meant only as aids to meditation for the ignorant. (p.149)
D. The image simply gives a name and form to the
formless God and the orthodox Hindu idea is that
conception of form is only for the benefit of the
worshipper and nothing else. (p.153.)
E. The idol, deity or religious object, observed West
1839
and Buhler in their Digest on Hindu Law, is looked upon
as a kind of human entity. It is a sacred entity and ideal
personality possessing proprietary rights. The Judicial
Committee has pointed out on more occasions than one
that it is only an ideal sense that property can be said to
belong to an idol and the possession and management of it
must, in the nature of things, be entrusted to some person
as Shebait or manager. The legal principle has thus been
summed up in one of the pronouncements of the Judicial
Committee:
F. A Hindu idol is, according to long-established
authority, founded upon the religious customs of the
Hindus, and the recognition thereof by courts of law, a
juristic entity. It has a juridical status, with the power of
suing and being sued. Its interests are attended to by the
person who has the deity in his charge and who in law is
its manager, with all the powers which would, in such
circumstances, on analogy, be given to the manager of the
estate of an infant heir. It is unnecessary to quote the
authorities; for this doctrine, thus simply stated, is firmly
established.( pp.158)
G. Existence of idol is not necessary for temple.-
While usually an idol is instituted in a temple, it does not
appear to be an essential condition of a temple as such. In
an Andhra case, it was held that to constitute a temple, it is
enough if it is a place of public religious worship and if
the people believe in its religious efficacy, irrespective of
the fact whether there is an idol or a structure or other
paraphernalia. It is enough if the devotees or the
pilgrims feel that there is one superhuman power which
1840
they should worship and invoke its blessings. (pp.158-
159.)
H. Moreover, - and this was pointed out by Chatterjee,
J., who was a member of the Full Bench the conception
of Hindu jurists was not that the image of clay or stone
constituted the juristic person. The Smriti writers have
laid down that if an image is broken or lost another may
be substituted in its place; when so substituted it is not a
new personality but the same deity, and properties vested
in the lost or mutilated thakur become vested in the
substituted thakur. Thus, a dedication to an idol is really a
dedication to the deity who is ever-present and ever-
existent, the idol being no more than the visible image
through which the deity is supposed specially to manifest
itself by reason of the ceremony of consecreation. The
decision in Bhupati Smrititirtha v. Ramlal has been
followed by other High Courts in India, and it has been
held by the Allahabad High Court in Mohor Singh v. Het
Singh that a bequest to complete the building of a temple
which was commenced by the testator and to install and
maintain an idol therein was a valid bequest under the
Hindu law.( pp.162-163)
I. A donor can certainly create a trust for the worship
of an idol which is to be consecreated and established in
future. The same principle applies if the deity is such as is
worshipped periodically like Durga, and has no permanent
image. The dedication of property for carrying on such
periodical worship is perfectly valid, although every year
a new clay image is prepared which is thrown into the
river after the Puja is over. (p.163)
1841
J. Where there is no deed, no question of construction
arises, and the validity or otherwise of the endowment
would have to be determined entirely on circumstantial
evidence. In Ram Ratan Lal v. Kashnath Tewari, the Patna
High Court has discussed the relevant considerations and
the evidence needed for deciding the question how far the
endowment is illusory. (p.167)
K. Reference may also be made to the judgments of the
Supreme Court in Idol of Thakurji Shri Govind Deoji
Maharaj (supra); Bishwanath and Anr. Vs. Shri
Thakur Radhaballabhji (supra); Jogendra Nath Naskar
(supra); Kalanka Devi Sansthan Vs. Maharashtra
Revenue Tribunal (supra); Official Trustee of West
Bengal Vs. C.I.T., West Bengal (supra); Dr M. Ismail
Faruqui (supra); and Ram Jankijee Deities (supra).
L. Plaintiffs in paragraphs 19, 20 and 21 have
specifically pleaded and given the reasons why the place
believed to be the birth place of Lord Sri Rama itself is a
deity. That a place can be an object of worship is now
beyond doubt on account of the decisions of the Supreme
Court in Faruqis case and in Ram Jankis case (1999) 5
SCC p.50 also Mukherjea pp 158-9 quoted supra.
M. The extracts quoted above from Mukherjeas
treatise clearly brings out the distinction between a
physical object, namely, an idol and a deity, though the
two are used occasionally as inter-changeable expressions.
What emerges is that it is a mistake to consider that there
must be a physical object, namely, an idol before there can
be a deity.
N. There can be no doubt now that a deity is a juristic
1842
person and can sue through a next friend appointed by
courts - see AIR 1967 SC 1044 . The present plaintiff 3
Sri.Trilokinath Pandey was appointed by the order of the
Honble Supreme Court.
O. Issues Nos. 21 and 22 are also closely connected
and stand answered. It is made clear that the plaintiffs are
not claiming that the idols alleged to have been placed
under the dome in December, 1949 are the plaintiff
deities the idols are for the benefit of the devotees.
1709. The case of defendant no.3 (Suit-4), i.e., Nirmohi
Akhara has been/is that the temple at Ram Chabutara belong to
Nirmohi Akhara since long, was its property including the idols.
It is not in dispute that Hindu idol, after its due consecration,
becomes a legal personality but in the case in hand, Nirmohi
Akhara, a religious endowment was managing the said temple
and worshipping the idol hence in any case it stood in the
capacity of Shebait of the said idol. The said status of Nirmohi
Akhara was never terminated at any point of time and therefore,
no suit on behalf of such an idol could have been filed by
ignoring defendant no.3 and that too in the absence of any
allegation of inaction or mal-action on the part of the Shebait i.e.
Nirmohi Akhara. In support Sri Verma also placed reliance on
Commissioner, Hindu Religious Endowments, Madras Vs. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra)
and Kunwar Singh Vs. Sri Thakurji Mahraj, Birajman
Mandir Gauntia Majra Dhamipur, Pargana and Tahsil
Nawabganj, District Bareilly, 1992 (2) AWC 890.
1710. The pleadings, argument etc. over these issues require
us to consider the matter from two different angles:
(i) Whether plaintiff no.1 is a Deity in terms of Hindu
1843
Law. Its effect,
(ii) Plaintiff no.2 is a place and therefore, first of all it has
to be seen whether a place by itself can be a Deity and be
conferred status of legal person in the light of principles of
Hindu Law.
1711. If both these aspects about the Deities are decided in
affirmance only then we will have to consider whether there was
any Shebait of the said two plaintiffs and whether the plaintiff
no.3 has rightly filed the suit in question as their next friend.
1712. First we first propose to consider, though in brief, as to
how the idol worship came to exist, the concept form and the
foundation etc., in the light of available ancient Hindu scriptures
as also the judicial precedents.
1713. One of the oldest Aryan scripture i.e. the Rigveda
refers to the worship of natural powers like sun, water, air etc.
but according to Max Muller, the religion of the Vedas knows
of no idol. He (Muller) says that the worship of idols in India is
a secondary formation, a later degradation of the more primitive
worship of ideal gods. B.K.Mukherjea in Hindu Law of
Religious and Charitable Trusts (supra) on page 13 has said:
There is a difference of opinion amongst scholars as to
whether the religion that is embodied in the Vedas was at
all polytheistic. A number of gods indeed are named, but
there are various passages in the Rigveda which expressly
declare that the various gods are only different names of
that which is one. Max Muller calls the religion,
henotheism. The gods to whom the hymns of the Rigveda
are addressed are idealised beings, who represent the
beneficient and radiant powers of nature, e.g., sun, air,
earth, sky, dawn, etc. But the Vedic seers had, from the
1844
beginning, a glimpse of the infinity behind these finite
forces, as is shown by the conception of 'Aditi' the mother
of the gods which, as Max Muller says, was the earliest
name invented to express the infinite. (emphasis added)
1714. Similarly, about the existence of 'temple' or 'monastic
institution' in Vedic age, B.K. Mukherjea in Hindu Law of
Religious and Charitable Trusts (supra), on page 13 and 15
has said :
It is difficult to say to what extent the charitable and
religious endowments as we see in modern times existed in
the early Vedic period. The earliest Vedic literature which
is known by the name of Samhitas throws very little light on
this point. It seems fairly certain that at this period there
were no temples for worship of idols as we find in
subsequent time, and an institution like the mutt or
monastery of later days was also unknown.
There is also no mention of monastic institution in the
Vedic literature. According to the Vedic Grihya Sutras,
which regulated the life of man, there were the institutions
of four Asramas prescribed for all persons belonging to the
twice born castes. Man's life was divided according to this
scheme into four Asramas or stages. The first stage was of
Brahmachari or student who was to live in the house of hi
preceptor and study the Vedas living a life of utmost
austerity and discipline. In the second stage he married
and became a householder or Grihastha and his duty was
to perform the religious and secular works that were
prescribed for this stage of life. In the third which was the
Banaprastha stage, he was to live the life of a recluse, and
in the last stage he became a Jati or ascetic. (emphasis
1845
added)
1715. Sri B.K. Mukherjea's above observation has come
after his concurrence with the views of some historians at that
time and particularly Europeans that Aryans migrated to India
from elsewhere and Vedic literature is the scripture of Aryan
culture. This is evident from what the learned author in para
1.11, page 10, has observed with respect to Rigveda; In the
Rigveda, which is the earliest record of Aryun culture....
1716. In 'Development of Hindu Iconography' by Jitendra
Nath Banerjea (First Edition in 1941 and 5
th
Edition in 2002
published by Munshiram Manoharlal Publishers Pvt. Ltd.), the
learned author opines:
The nature of the prehistoric remains just discussed
cannot be determined with certainty on account of the
absence of any literary data throwing clear light on them ;
but with the help of certain passages occurring in the
Rgveda, the earliest extant literature of the Indo-Aryans, it
is possible to offer a tentative explanation about some of
them. It may be observed, however, that in India, prior to
the advent of the Aryans, image-worship might have
been practised by her original settlers. But it is still a
matter of doubt and controversy when this was first
introduced among the Aryans who migrated into India.
From the beginning of the scientific method of Vedic
studies in India this question engaged the attention of
scholars. (Page 42) (emphasis added)
1717. Thereafter, the learned author referred to the views of
Max Muller, who said that the Vedic religion knew of no idols
and it was a secondary formation. This has been reiterated by
H.H. Wilson and Macdonell. Banerjea, then has also referred to
1846
a contrary view expressed by Bollensen.
1718. Sri S.V. Venkateswara, after considering rival
opinions of several authorities on the subject, expressed his
opinion that Vedic evidence was not at all sufficient for
deciding whether gods were iconically represented in earlier
Vedic period or not. His later observations have been quoted by
J.N. Banerjea in The Development of Hindu Iconography
(supra) as under :
In a later contribution (Rupam, Nos.42-4, 1930), he was
more definite, and he collected numerous additional
passages from the Rgveda and other Vedas in support of
his view ; he even used the term iconography in relation to
the representation of the Vedic deities. He assigned the
foremost place to the well-known verse in the Rgveda, IV.
24, 10, which was also noticed by Macdonell and others.
The latter thought that it was a late passage probably
containing an allusion to some concrete symbol of Indra. It
is : Ka imam dasabhirmamendram krinati dhenubhih I
Yada vrtrani jamghanadathainam me punardadat ('Who
will buy this my Indra for ten cows? When he has slam his
foes, he may give himback to me'). Venkateswara remarks
about the passage thus : The context shows that there
were permanent images of Indra made and hired for what
was in probability an Indra festival, and there were
apparently images of Vrtra made for each occasion,
whence the plural Vrtrani to be slain by Indra. With
regard to R.V., V. 52, 15, noticed above, Venkateswara
makes this significant observation, this passage is also
interesting in that it shows that there was no idol worship,
but that images were used as concrete representations of
1847
gods whose real form and existence were conceived as
different. The existence of two forms of each god, one the
concrete and finite and the other the abstract and infinite,
is clear according to him in a Yajurveda passage (T.S., I. 7.
12; also A.V., VII. 31) which reads svaya tanva
tanumairayata ('with your own, i.e., real, body enter this
concrete body'). In his opinion, the image is regarded in
the Rgveda merely as a physical tenement of the real
form of the god, while in these texts we have two forms of
the god mentioned- that in the image being only an
apparent and evanescent form, and that in the universe
being the real and permanent form (sva tanuh). He finds
reference to the relationship of these forms, finite and
infinite, of the god even in the Rgveda (VII. 100, 6) which
speaks of Visnu's assumption of another, the finite form in
the battle with Vrtra, where he was a worthy companion of
Indra (yadanyarupah samithe babhutha) ; Indra, who used
Visnu as his vehicle (Visnvanusthitah), asked him to
expand into the infinite space (sakhe Visno vitaram
vikramasva) elbowing Vrtra out of existence till the latter
begged to be received into the body of Indra himself. From
this Venkateswara concluded that the belief was that the
finite cabined in a particular form was not cribbed or
confined by this fact but was capable of infinite expansion.
He finds distinct references to the fashioning of images in
such passages as R. V., VI. 28, 6 (asriram cit krnutha
supratikam i.e., 'make that which was an ugly mass a
beautiful image'); R.V., IV. 17, 4 (Indrasya karta
svapastamo bhut, i.e., 'the maker of Indra was a most
stalwart being, a most skilful workman'); casting of metal
1848
images is also referred to in the Rgveda and other Vedas in
such passages as R.V., VIII. 69, 12 (surmyam susiramiva,
i.e., 'like a hollow tube'), R.V., X. 184, 1 (Visnuryonim
kalpayatu tvasta rupani pimsatu 1 A sincatu
prajapatirdhata garbham dadhatu te, i.e., 'May Visnu make
the female organ fit ; may Tvasta fix the limbs ; may
Prajapati sprinkle ; may Dhata hold your embryo'), R.V., I.
32, 2 (Tvastasmai vajram svaryam tataksa, i.e., 'Tvasta
made the thunderbolt for Indra, which could be far flung'),
etc. He further finds references to temples (devagrhas) in
such passages as R.V., VII. 56, 14 (Sahasriyam damyam
bhagametam grhamedhiyam maruto jusadhvam, i.e., 'Oh!
Maruts accept this your portion offered at the temple'),
R.V., VII. 59, 10 (Grhamedhasa, i.e., the Maruts in the
houses are munificent), etc. Venkateswara thinks that this
inference from the passages is supported by the finds of
images of the storm gods in Babylonia. He even finds
allusion to processions of images in R.V., I. 10, 1 and III.
53, 5-6. In the latest (Khila) Vedic texts, the goddess Sri is
represented as a golden antelope adorned with garlands of
silver and gold (he obviously refers to the Sri Sukta in this
statement). (Pages 45 47) (emphasis added)
1719. B.K. Mukherjea in Hindu Law of Religious and
Charitable Trusts (supra) refers to Gautama's Dharmasuttra
and says that there is some reference to idols but the age of the
work is unknown, and it does not specify any particular idol or
idols. It says that the gods that are popularly worshipped by the
Hindus at the present day are, for the most part, Pouranic
deities, descriptions of which occur in various Puranas. The
Puranas literally mean ancient legends constitute a class of
1849
epic literature, didactic in character, which deal with various
matters including cosmogony, the genealogies and exploits of
gods, sages and kings, accounts of the different Avatars or
incarnations of Vishnu, as well as the rites of worshipping gods
by prayers, fasting, votive offerings, pilgrimages, etc. On page
25 B.K. Mukherjea further says :
The Purans are sectarian, in the sense that some of them
extol the merits of worshiping Vishnu, while many prefer
Siva worship. The Upanishads which embody the
philosophical concept of the Vedas describe Brahman or
the Supreme Being as that from which all things are born,
that by which when born they live and into which they enter
at death. These creative, preservative and destructive
functions or aspects of the divinity constitute the Trinity of
the Puranas and are symbolised respectively by Brahma,
Vishnu and Siva. The Puranas say expressly that Brahma,
Vishnu and Siva though three in form really constitute one
entity and there is no difference amongst them except that
of attributes. The reason is that each of the functions of
creation, preservation and destruction implies the others
and contains the others in a latent form. The worship of
Brahma is not very popular, and I am not aware of any
temple being dedicated to this creative deity except one at
Pushkar, seven miles to the north-west of Ajmer in
Rajasthan. The images that are worshipped are generally
those of Siva or vishnu in their various forms or
manifestations. The worship of Sakti or the female
principle which is described as the consort of Siva in the
different forms of Durga, Kali etc. is also popular and is
the special feature of the Tantric system. Besides Siva,
1850
Vishnu and Durga, the other deities, who are generally
adored by the Hindus, are Ganesh and Surya (Sun), and
the numerous temples that adorn the various sacred places
of the Hindus are dedicated for the most part to one or
other of these five gods or Pancha Devata as they are
called.
1720. It is said that the Vedic mythology was merely
elaborated in Puranas. In this regard, B.K. Mukherjea, on pages
152 and 153 Para 4.3B has observed
This is not wholly or even substantially true. The sources
of some of the legendary stories occurring in the Puranas
can, no doubt, be traced in the Vedas but it would not be
correct to say that the Pouranic gods were mere
reproductions of the Vedic gods. There is nothing in the
Vedas corresponding to the Pouranic Trinity of Brahma,
Vishnu and Siva. Brahma in the Vedic text signified the
Sun, or was a synonym of prayer. Vishnu in the Rigveda
occupied a rather subordinate position. He was also
identified with the Sun, and his three strides encompassing
the three spheres of existence, as suggestive of all
pervasiveness constituted the foundation of the Pouranic
legend of the three steps of Vishnu in his incarnation of the
Dwarf. Siva hardly appears as the name of any deity in
Vedic time. The expression Siva means propitious or
benignant. Rudra, one of the Vedic deities, was in all
probability, another name of Agni or fire, and the Puranas
identified Siva with Rudra. We hear very little of Ganapati
or Kartikeya in the Vedas. Kali, who is described in the
Puranas as a consort of Siva, was spoken of in
Mandukopanishad as one of the seven tongues of fire, while
1851
the name of Uma occurs in the Kenopanishad, where
she is described as a resplendent lady who gave lessons in
divine knowledge to the gods. Sri Krishna, who looms so
large in the Pouranic literature, is mentioned only as a
scholar and not as a deity in the Vedas, though many of the
legendary stories attributed to him in the Purans are
traceable to similar legends associated with Indra in the
Vedic literature.
It is not necessary for our present purpose to pursue these
discussions any further. Though the Puranas are by no
means uniform, the legends associated with the various
gods are fairly well known and have been the basis of a
considerable mass of poetic literature in later times. One
cardinal principle underlying idol worship you would
always bear in mind- and this has some bearing on the law
relating to gift of property to idols- that whichever god the
devotee might choose for purposes of worship and
whatever image he might set up and consecrate with that
object, the image represents the Supreme God and none
else. There is no superiority or inferiority amongst the
different gods. Siva, Vishnu, Ganapati or Surya is extolled,
each in its turn as the creator, preserver and supreme lord
of the universe. The image simply gives a name and form
to the formless God and the orthodox Hindu idea is that
conception of form is only for the benefit of the
worshipper and nothing else. (emphasis added)
1721. Para 1.33 (page 26) of B.K. Mukherjea's Hindu Law
of Religious and Charitable Trusts (supra) says that different
images do not represent separate divinities; they are really
symbols of the one Supreme Being, and in whichever name and
1852
form the deity might be invoked, he is to the devotee the
Supreme god to whom all the functions of creation, preservation
and destruction are attributed. In worshipping the image the
Hindu purports to worship the Supreme Deity and none else.
The rationale of image worship is thus given in a verse which is
quoted by Raghunandan:
l--il,n|- l--ii|li
iiii lriil r-i| ~i |
It is for the benefit of the worshippers that there is
conception of images of Supreme Being which is bodiless,
has no attribute, which consists of pure spirit and has got
no second.
1722. Some of the aspects of image worship have been
referred to by Sri P.N. Mishra, Advocate which we have already
quoted in extentio in para 1695 (A-J) which are also based on
the Hindu scriptures against which nothing has been placed by
the learned counsels appearing for pro-mosque parties and,
therefore, we have no reason to doubt correctness thereof.
1723. The next step is the building and consecration of
temples along with the establishment of idols worshipped in
Hindu religion, elaborate rites and ceremonies. It appears to
have been introduced by Brahminical writers. They have
elaborated the procedure, steps regarding building of temples,
consecration and purification of idols etc.
1724. A temple is the house of the deity and many of the
rules of construction of a temple are practically the same as are
prescribed for construction of a dwelling house, the additional
rules being laid down to ensure greater sanctity of the structure
that is meant for the abode of a deity. One who wants to built a
temple has got to select proper time for building with reference
1853
to astrological calculations. There are detailed rules relating to
selection of the site which include examination of the nature and
colour of the soil, its odour, taste, solidity, etc. After the site is
selected, it is ploughed up and seeds are sown in it. As soon as
the seeds germinate, the crop is allowed to be grazed over by
cows. The cardinal points are then to be ascertained for giving
this structure an auspicious aspect and there are rules to be
observed regarding the materials to be used and the location of
doors, windows, etc. The important religious ceremony is the
Vastu Jaga in honour of Vastu Purusha or Vastu Debata
who presides over dwelling house, with oblation of milk, rice
and sugar.
1725. A temple, in the original sense of the Latin word
'templum', meant a rectangular place marked out by the augur
for the purpose of his observations which were taken within a
rectangular tent and gave it meaning of a consecrated place or
building of rectangular shape 'inaugurated' by an augur. It may
be applied in this sense to the house of a God. In its primitive
sense 'templum' means a place marked off as a road to God. In
ancient Hindu Religious Texts, the word ii has been taken
to mean and denote 'temple'. In Matsya Purana, it is written:
- iii n inllin ,
i| i nii li|i |
i lli - ln-i ni ,
-n-n lii -in ii nii l-i ||
(The rules which are recognised for pratishtha and utsarga
of tanks, water reservoirs, etc., should be observed in the
case of garden and temples but with necessary variation in
mantras.)
1726. The foundation of temples and consecration of an
image in the temple are two different subjects. In Hindu system
1854
of worship, temple is not merely a place of idol, but is also a
place of worship. In 'Hindu temple' by Cramerish, it is said :
The surface of the Earth, in traditional Indian
Cosmology, is regarded as demarcated by sunrise and
sunset, by the points where the sun apparently emerges
above and sinks below the horizon; by the East and West
and also by the North and South points. It is therefore,
represented by the ideogram or mandala of a square (F.N.
44- The square does not refer to the outline of the Earth). It
connects the four points established by the primary pairs of
opposites, the apparent sunrise and sunset points East and
West; South and North. The Earth is therefore called
'Caturbhrsti' four cornered (Rv. X. 58. 3) and is
symbolically shown as Prithvi-Mandala, whereas
considered in itself, the shape of the Earth is circular. (Rv.
X. 89. 4; S.B. VII. I. I. 37). The identification of the square
with the vedi is in shape only and not in size and belongs to
the symbolism of the Hindu temple. The vedi represents and
is levelled Earth, a place of sacrifice or worship: 'No part
of the ground should rise above it: for it was from there
that the God ascended to heaven' (S.B. III. I.I.I-2). The site,
the Earth should be even and firm for it is the starting
place of the ascent (S.B. VIII 5.2.16). The link between the
Earth and the end of the ascent stretches upwards into
space. The intermediate region (antriksa) from it also leads
downward and rests on Earth. In it the temple has its
elevation. The Vastupurusamandala, the temple diagram
and metaphysical plan is laid out on the firm and level
ground; it is the intellectual foundation of the building, a
forecast of its ascent and its projection on Earth.
1855
1727. About the construction of the temple, it has been said:
-i i |iiill |
inn i ni i-i li , ||
;-i n n i i-ni i ini|
ii-i ii ,- n ||
(On the land where, sufficient source of water is available,
beautiful gardens of flowers and fruits are also available
only there a founder should build a temple for the sake of
religion and fame. From building a temple one gets benefit
of both ishta and purta.)
1728. The Sanskrit word ii 'Prasad's origin is said as:
i i i il-- i
(A building made of stones with mantras and other.)
1729. It was the ancient Indian tradition that ordinary
people's houses had no walls or pillars made of stones, or
puckka bricks. It was said:
lii lii -n-i ii i n i n (il-in-)
1730. Stone-made structures were reserved for worship and
were known as mandir. With the lapse of time this restriction
was given up. There is a separate branch of Temple Architecture
for building temples. The shape of a temple must be like a man.
It is said:
i i --i n -l-n-|
1731. A Book said to have been written by Maharajadhiraj
Bhoj Deo, i.e., Samrangan Sutradhar is considered to be
classic book of architecture on temples. The Mareechi Samhita
provides the Code for the construction of a temple:
The Garbagruha (Sanctum) is so constructed as to
resemble a human body in its vertical form. The entire
structure from the base to the top (called Vasstu Purusha)
is divided into six units, corresponding to six parts to the
1856
human body. Mareechi Samhita classifies the types of
vimanas according to rituals, forms and materials used.
Interestingly, the ritual-classification is based on the
builder's mental attitude, health, success (pushti, shanthi,
jayadam, adbhutam).
There are four types of temple architecture, the
Nagara (North Indian), the Dravida (South Indian), the
Vesara (a combination of both) and Kadamba Nagara
(Pattadakal temples . . . . . Chalukyan style). There is no
difference between Saiva and Vaishnava temples either in
style or plan or form. All temples consist of the following
integral parts, arranged in various forms, depending upon
the era to which they belong to.
The principal part, the actual temple, is called
Vimana and it includes the shrine and the spire. The
mantapas or porches precede the door leading to the inner
shrine. Mahadwara or main gateway is the principal
feature at he entrance to the quadrangular enclosures that
surround the temples.
1732. In Law of Hindu Religious Endowments by Ghosh,
he stressed on the origin of temple:
"He has stated that during the Vedic times, offering
were made to various deities by placing them on the fire
which was named Hutaraha or the conveyor of offerings.
The Rig Veda speaks of the fire as carrying the Homa
articles after making them fragrant to the Gods. He has
also pointed out that this type of worship was common
among Semitic races and also in Rome.
This was in the primitive stages of civilization. At
later stages elaborate and complicated divination,
1857
propitiation, sacrifice, prayer and other rites and
ceremonies developed in Hinduism. This was not confined
to Hinduism only. Parallel situations obtained in
Shintoism, Confucianism, Roman, Greek slavic and
German religions also. Different orders of priestly
functionaries to perform different cultic acts came into
existence. Words, formulae and rites had to be
punctiliously pronounced and executed. Rituals in all their
varieties and with all their paraphernalia had to be
meticulously executed. The temple priests had to dedicate
their lives to the service of God by solemn vows. This was
the method of evolution of temple worship.
Out of the rituals for the establishment of
endowments for Hindu temples, two stand out prominently.
They are Pratishta and Sankalpa.
1733. It has also been observed that the temples are also of
two kinds. Ganapathi Iyer in his Law of Hindu Religious
Endowments at page 214 said:
"Temples being the chief examples of Hindu religious
endowments, they are of two kinds. Svayambhua
Sthalams are temples in which the idol or deity is said to
have self-revealed, i.e. not established by man. The other is
Pratishta Sthalams, namely, temples in which the deity is
established newly by observing certain set of rules (page
206). The images are of kinds; Lekhya consisting of
pictures, paintings on walls, canvas or vessels and (2)
chiselled figures of wood or stone. Lepya may be of two
kinds (1) moulded figures of clay, (2) metallic figures cast
in moulds (page 210). The place in which temples have to
be built and the directions in which the images are to be
1858
placed are also mentioned in the book."
1734. About the description and kinds of images, B.K.
Mukherjea's Hindu Law of Religious and Charitable Trusts
(supra), page 154 para 4.5 says:
4.5. Images-their descriptions.- Image, according to
Hindu autho-rities, are of two kinds: the first is known as
Sayambhu or self-existent or self-revealed, while the
other is Pratisthita or established. The Padma Puran
says :The image of Hari (God) prepared of stone, earth,
wood, metal or the like and established according to the
rites laid down in the Vedas, Smritis and Tantras is called
the established; .......where the self possessed Vishnu
has placed himself on earth in stone or wood for the
benefit of mankind, that is styled the self-revealed. A
Sayambhu or self-revealed image is a product of nature, it
is Anadi or without any beginning and the worshippers
simply discover its existence. Such image does not require
consecration of Pratistha. All artificial or man-made
images require consecration. An image according to
matsya Purana may properly be made of gold, silver,
copper, iron, brass or bell metal or any kind of gem, stone
or wood, conch shell, crystal or even earth.
Some persons worship images painted on wall or canvas,
says the Brihata Purana and some worship the
spheroidical stones known as Salgram. Generally speaking,
the Pouranic writers classify artificial images under two
heads; viz. (1) Lepya and (2) Lekhya. Lepya images are
moulded figures of metal or clay, while Lekhyas denote all
kinds of pictorial images including chiselled figures of
wood or stone not made by moulds. In the case of Goswami
1859
Geeridhariji v Ramanlalji which went up to the Privy
Council, the subject matter of dispute was the pictorial
image of the head of the Ballavacharya Sect and not of any
deity. Images again may be permanent or temporary.
Temporary images which are set up for periodical Pujas
like Durga, Saraswati, etc. are generally made of clay and
are immersed in a river or tank after the Puja is over.
1735. Worship of idol i.e., the procedure aspect, has been
discussed in para 4.7 (page 156) of B.K. Mukherjea's Hindu
Law of Religious and Charitable Trusts (supra) as under :
4.7. Worship of the idol.- After a deity is installed, it
should be worshipped daily according to Hindu Sastra.
The person founding a deity becomes morally responsible
for the worship of the deity even if no property is dedicated
to it. This responsibility is always carried out by a pious
Hindu ......... The daily worship of a consecrated image
includes the sweeping of the temple, the process of smear-
ing, the removal of the previous day's offerings of flowers,
the presentation of fresh flowers, the respectful oblation of
rice with sweets and water and other practices. The deity
in short is conceived of as a living being and is treated in
the same way as the master of the house would be treated
by his humble servant. The daily routine of life is gone
through, with minute accuracy, the vivified image is
regaled with necessaries and luxuries of life in due
succession even to the changing of clothes, the offering of
cooked and uncooked food and the retirement to rest.
(emphasis added)
1736. Existence of idol is not a necessary condition
precedent for a temple. Para 4.10A [page 158] of B.K.
1860
(supra) says:
While usually an idol is instituted in a temple, it does not
appear to be an essential condition of a temple as such. In
an Andhra case, it was held that to constitute a temple, it
is enough if it is a place of public religious worship and
if the people believe in its religious efficacy, irrespective
of the fact whether there is an idol or a structure or
other paraphernalia. It is enough if the devotees or the
pilgrims feel that there is one superhuman power which
they should worship and invoke its blessings. However, in
almost all cases the temple does possess an
idol.(emphasis added)
1737. We may notice at this stage that in Mulla's Hindu
Law, 15
th
Edn., page 527, it is said that a temple is not a
juridical person, so no suit relating to the temple property can be
instituted in the name of the temple. It refers to a decision of
Lahore High Court in Thakardwara Sheru Mal Vs. Ishar Das
AIR 1928 Lah. 375 questioning if the temple has no idol in
whom the property shall vest.
1738. We, however, do not find that the above wide
proposition can be said to be a correct law in presenti. A temple
answering the requisites of Hindu religious endowment may be
a juridical person and if that being so not only it can sue or
being sued but it also entitled to hold property. It would be
suffice to mention at this stage that a detailed discussion in the
light of judicial precedents would follow hereafter and,
therefore, we are not straightway giving any authority on this
aspect just now as the matter would be clear from our
subsequent discussion.
1861
1739. The Apex Court in Guruvayur Devasom Managing
Committee Vs. C.K. Rajan (Supra) in para 40 said, "As a
Hindu temple is a juristic person ....". It also refers to Section 92
C.P.C. observing that it seeks to protect such juristic person and
therefore power under Article 226 or 32 could also be taken
recourse to.
1740. In T.R.K. Ramaswami Servai Vs. H.R.E. Madras
(supra), it was observed:
The presence of an idol though an invariable feature of
Hindu temples is not a legal requisite. If the public or a
section of the public consider that there is Divine presence
in a particular place, they are likely to be recipients of the
bounty or blessings of God, then they are essential features
of a temple.
1741. In Venkataramana Moorthy Vs. Sri Rama
Mandhiram (1964) 2 An.WR 457, it was held that to constitute
a temple, it is enough if it is a place of public religious worship
and the people believe in its religious efficacy, irrespective of
the fact there is no idol or structure or other paraphernalia. The
Madras High Court reiterated the above view in T.V.
Durairajulu Naidu Vs. Commissioner (supra) observing that
for an institution to be a temple, it is not necessary that there
should be Dhwajasthambam, prakaram, hundi or collection of
Kanikkai, utsava idols and utsavams. A place which creates a
sense of reverence in the belief that God resides there or an
edifice devoted to divine worship is a temple. It was also held
that the presence of idol is not a necessary ingredient to make an
institution a temple.
1742. Relying upon several precedents, including a Supreme
Court decision, it has however been held in Adangi Nageswara
1862
Rao Vs. Sri Ankamma Devatha Temple (supra) in para 6: "To
constitute a temple, it is enough if it is a place of public
religious worship and if the people believe in its religious
efficacy irrespective of the fact whether there is an Idol or a
structure or other paraphernalia"; it was further observed in para
8 (last passage) that the fact that the temple has ceased to exist
or ceased to be used as a place of religious worship either before
or after the commencement of the Act under consideration, is
absolutely of no consequence.
1743. Even when an image is broken or lost and is
substituted by another, it is not a new personality but the same
'Deity' and in this regard reference be had to page 162 which
says :
the Smriti writers have laid down that if an image is
broken or lost another may be substituted in its place;
when so substituted it is not a new personality but the same
deity, and properties vested in the lost or mutilated thakur
become vested in the substituted thakur. Thus, a dedication
to an idol is really a dedication to the deity who is ever-
present and ever-existent, the idol being no more than the
visible image through which the deity is supposed specially
to manifest itself by reason of the ceremony of
consecration.
1744. Then there are temporary images, i.e., the images and
deities prepared and destroyed periodically after worship, for
example, Ganesha's image is prepared during Ganesh Chaturthi
and after the festivities are over, the image is drowned in a holy
river or in places like Maharashtra (Bombay) in the sea.
Similarly, the images of Durga, Kali and other Devatas are also
worshipped as temporary images during certain periods.
1863
1745. A question arose as to whether there can be dedication
of property to such deity, an image whereof has been created
temporarily. The Calcutta High Court in Purnachandra
Chakrabarty Vs. Kaliopada Roy AIR 1942 Cal. 386 and Asita
Mohan Vs. Nivode Mohan AIR 1917 Cal 292 held that bequest
made for worship of a deity by the name of Sarat Kali, which is
the name of Goddess Durga and worshipped only once in a year
and for whom there is no permanent image was valid. In fact a
Full Bench of Calcutta High Court earlier took the view in
Bhupati Nath Vs. Ram Lal (supra) that if a gift in favour of the
deity whose image has to be prepared and destroyed periodically
is valid, there is no reason why a gift in favour of a deity whose
image is to be prepared once for all, except for any reason for
reconstruction coming to pass, should be invalid. According to
Hindu scriptures, the God, by whatever name adored, is ever
existent and whether a particular image did or not did not exist
at a particular time was not material. Temporary images are
normally not consecrated images though Ganapathi Iyer in his
"Hindu Law of Endowment" has said that even in the case of
temporary images, consecration is observed but normally
consecration or Pratishta is done according to the texts only for
images in temples. But that does not make the unconsecrated
temporary images less sacred.
1746. There is another aspect. When there is a defilement,
Punah-pratishthan (re-consecration of images in temples) has to
be observed. The Brahmapurana says that when a image is
broken into two or is reduced to particles, is burnt, is removed
from its pedestal, is insulted, had ceased to be worshipped, is
touched by beasts like donkeys or falls on impure ground or is
worshipped with mantras of other deities or is rendered impure
1864
by the touch of outcasts and the like-in these then contingencies,
God ceases to dwell therein.
1747. Then comes Chala and Sthira Vigrah. There are two
forms of installation of idols in temples. The movable form is
called Chala and the stationary form is called Sthira. In most of
the consecrated temples, idols are found in both the forms. The
Sthira idol should not be moved while Chala idol which is also
called Utsava is to be taken out in procession etc. In the context
of forms of idols besides the man made images which consist of
pictures, paintings and chiselled figures of wood, stone etc., the
another form of such idols, which is natural, are stones found in
hills, river-beds or streams. One of such black stone is known as
Saaligram and another as Lingam. They are not ordinary stones.
The black Saaligraam stone symbolises Vishnu. Lingam
represents Siva. There is another kind of Lingam, i.e., Spatika
Linga, a white tiny crystal made of pure quartz. It is considered
to be best representation of the Nirguna Brahman, attributeless
all-pervading Paramatma. Then there are Panchamukha Lingas
which are found in Nepal and Jambukeswaram in Tamil Nadu
and Aihole in Western India. These stones etc. are a form of
Chal Vigraha.
1748. In the context of the above, the concept of 'Deity' and
'juristic personality' in Hindu Law has to be considered to find
out whether plaintiffs no.1 and 2 are "juridical persons".
1749. In legal terminology, the term 'person' normally
signifies a human being. It is Human Being's personality which
may possess the characteristics belong particularly to mankind,
i.e., power of thought, speech and choice. In legal terminology,
however, the concept of person or personality is not confined
with the ordinary concept. Law is concerned basically with
1865
rights and duties, both of which involves the notion of choice.
They will naturally, under any system of law, be held to inhere
primarily in those Being which enjoy the ability to choose, i.e.,
Human Beings. In law, the persons, who are not man are also
sometimes treated as person. Well renowned Jurist 'Salmond'
has sought to describe the word 'person' as: persons are the
substances of which rights and duties are the attributes.
1750. In legal theory a person is any Being whom law
regards as capable of rights or duties. The persons, so defined,
may be placed in two categories; (a) natural person, and (b)
legal person. Obviously a natural person is a human being.
Legal person means Beings, real or imaginary, who for the
purpose of legal reasoning are treated in greater or lessor degree
in the same way as Human Beings. Legal persons commonalty
and loosely are also sometimes termed as fictitious person,
juristic person, artificial person or moral person. In this
category, we may place a joint stock company, a statutory or
local body and in Hindu law, an 'Idol'.
1751. For our purposes, we need not to discuss in detail the
concept of natural person, but confine ourselves to the term
legal person. A legal person is any subject-matter other than a
human being to which the law attributes personality. This
extension, for good and sufficient reasons, of the conception of
personality beyond the class of human being is one of the most
noteworthy feat of the legal imagination. The law, in creating
legal persons, always does so by personifying some real thing.
The thing personified may be termed the corpus of the legal
person so created, it is the body into which the law infuses the
animus of a fictitious personality. Salmond on
Jurisprudence Twelfth Edition by F.J. Fitzgerald, on page
1866
306, says:
Although all legal personality involves
personification, the converse is not true. Legal personality
is a definite legal conception; personification, as such, is a
mere artifice of speech devised for compendious
expression.
1752. Serious objection has been raised with the concept of
juristic personality though not in the context of idol but in the
context of place, inasmuch as, it is contended that everything, as
believed by any person, may not be given a legal status in order
to confer certain rights and privileges upon him. It is said that
like a human being it is conceived in Hindu Shastras that a
Deity shall be taken care of in the same manner as that a natural
person, for example arrangement of food, cloth, sleep etc. As a
matter of fact, however it does not actually and cannot actually
happen for the reason that an idol, made of some kind of
substance or material, cannot infuse life for all the said purpose.
It is only the perception and religious belief. Like a natural
person, a Deity cannot claim citizenship under the Constitution
of India, cannot participate in election either by contesting or by
exercising the right of vote and so on.
1753. The above concept obviously is well embedded in the
concept of Hindu Dharma. The form of observance of Dharma
vide Hindu scriptures which also provides the procedure of
worship in the form of Yagya. The Hindu scriptures also contain
the procedure of worship in the form of "Yagya", sacrifices by
chanting Mantras etc. and for the said purpose the existence of
idol or temple may or may not be necessary.
1754. The Apex Court recognised the Hindu belief that
worship consists of four forms of which idol worship is one
1867
such form. In A.S. Narayana Deekshitulu Vs. State of Andhra
Pradesh (supra), the Court observed that mode of worship
varies among persons of different faith. It is an assimilation of
the individual soul with the infinite. For its attainment diverse
views and theories have been propounded and one of them is
idol worship. In fact, the word "Dharma", which is normally
read and misunderstood identifying the word "religion", has a
different concept in Hindu vedic literature. According to
"Chhandogyopanishad":
i i- -iin il-ln i--n ln l,n|i
r -iii i i| n n|i -n-i--i-ii i |
n i i iln r - -ii -n-- ln|
There are three branches of Dharma 1. Yagna, study
and donation (n r-ii- ) 2. Tapsaya (nii- ) 3. Brihcharitya
(living in the company of Acharya)."
However, according to "Vaisheshik":
iini i- ii--i-|
ni l ll, i- ||
(Dharma is that from which enjoyment (i) and
Nishreyas is achieved.)
The "Manusmriti", defines "Dharma" as under:
-- ln ii --i l -i--|
nn l i ir ii,- - ii- ||
(Shruti, Smriti, Sadachar and satisfaction of one's soul are
the four features of Dharma.)
1755. In A. S. Narayana Deekshitulu (supra), the Apex
Court observed that the basis of Hindu Dharma is two fold, first
is the Vedas and the second are Agamas. Vedas, in turn, consist
of four texts, namely, Samhitas, Brahmanas, Aranyakas and
Upanishads. Samhitas are the collections of mantras. Brahmans
explain the practical aspects of the rituals as well as their
1868
meanings. They explain the application of the mantras and the
deeper meanings of the rituals. Aranyakas go deeper into the
mystic meaning of the rituals, and Upanishads present the
philosophy of Vedas. In paras 95 to 100 of the judgment the
Court said:
95. The basis of Hindu Dharma is two-fold. The
first is the Vedas and the second are the Agamas. Vedas, in
turn, consist of four texts, namely Samhitas, Bramhanas,
Aranyakas and Upnishads.
96. Samhitas are the collections of mantras,
bramhans explain the practical aspects of the rituals as
well as their meanings. They explain the application of the
mantras and the deeper meanings of the rituals. Aranyakas
go deeper into the mystic meanings of the rituals, and
Upnishads present the philosophy of the Vedas.
97. From the point of view of content, they are
viewed as Karma Kanda (sacrificial portion) and Jnana
Kanda which explain in the philosophical portion. The
major portion of the Vedic literature enunciates the Vedic
sacrifices or the rituals which inevitably culminate in the
philosophy of the Upanishads. That is why the Upanishads
are called Vedantha or culmination of the Vedas.
98. The essence of the Vedic religion lies in Vedic
sacrifices which not only purify the mind and the heart of
those participate in the sacrifices but also reveal the true
and unfragmented nature of the Karman (Action).
Erroneously, Western, scholars explained the Vedic
sacrifice in terms of either sympathetic magic or an act of
offering the fire to God emulating the mundane act of
offering gifts. Thus, for them Vedic religion is a primitive
1869
religion and Vedic Gods are simply representing insentient
departments of Nature; but it is not so. On the contrary, the
term used for Vedic Gods is Deva which literally means
the shining ones. The adorable ones-bestowing grace on
the worshippers. The root Div also means that Devas are
the embodiment of unfragmented consciousness, which is
ultimately one and non dual. Likewise, the Vedic sacrifice
is an act of re-enactment of the cosmic creation; in our
mundane life, our life of action is simply a life of
fragmented acts. This is because of Raga Dvesha whereby
the perception is limited. The fragmented acts emanate
from our deep rooted attraction and hatefulness. The Vedic
sacrifice moves towards Poorna, i.e., plenitude and thus
overcoming the problems of fragmented action in our lives.
Onwards, the seeker moves towards the knowledge of self
or the Brahaman. So many Upasanas are taught in the
Vedas but not elaborated. The Agams have elaborated
these Upasanas such as Madhu Vidya and Dahra Vidya.
99. Upanishads speak of Para Vidya and Apara
Vidya. Apara Vidya deals with Jnana through various
methods. Agams explain these Para Vidyas. The agamic
texts contain four parts, namely, Vidya Pada, Kriya Pada,
Charya Pada and Yoga Pada.
100. Each text of the Agams has the first portion,
called 'Samhita' which contains the four parts namely the
Vidya Pada, Kriya Pada, Charya Pada and Yoga Pada.
Vidya Pada offers an elaborate enunciation of the
philosophy, whereas Kriya Pada deals elaborately with act
of worship. Worship is viewed as Samurta Archana. In
other words, the God are endowed with from and this form
1870
of worship culminates into Amurta or Nishkala Archana by
which one worships and realises the formless. These are
the steps to be treated upon one after another.
1756. In Acharya Jagadishwarananda Avadhuta Vs.
Commissioner of Police AIR 1990 Cal. 336, the Court observed
that according to Hindu concept, the idea of religion is relating
to God and form of His worship which in short is called as
religion. Swami Vivekananda in "Complete Works", Vol. 2,
page 396 said:
"Religion is realization; not talk, nor doctrine, nor
theories... It is being and becoming, not hearing and
acknowledging; it is the whole soul becoming changed into
what it believes. That is religion."
1757. Religion, therefore, is a process which has two sides;
from one point of view, it is a state of belief and feeling, and in
a word "spiritual disposition"; from another point of view it is
an expression of the subjective disposition in appropriate acts.
Both aspects are essential to the nature of religion and they act
and react on one another in the process of spiritual experience.
The expression of belief and faith forms the worship and for this
purpose it may take several aspects. Idol, deity, temple, religious
endowments etc. are some of those objects through which the
divine presence is felt, experienced, believed and enjoyed for
fulfilment of one's wishes.
1758. God is omnipotent and omniscient. His presence is felt
not by reason of a particular form or image but by reason of the
presence of the omnipotent. He is formless and shapeless.
According to Hindu belief, it is for the benefit of the
worshippers that there is manifestation in the images of the
Supreme Being. It is the human vision of the Lord of the Lords.
1871
One can say that it is the human concept of the Lord of Lords.
That is how a image and idol comes into picture. It may be
anything in the form of metal, like gold, silver, copper, etc. or a
simple piece of wood or stone may or may not be given a shape
by artisan so as to become an image or idol and divinity is
attributed to it.
1759. There are two forms of idols, one "Svayambhu" and
another "Pratishta". "Svayambhu" or self-revealed idol are
referred in Padma Purana (Uttara Khand) where the self
possessed Vishnu has placed himself on earth in stone or wood
for the benefit of mankind, that is styled as self-revealed. A
Svayambhu image does not require consecration. In this
category comes Saaligraam, certain stone forming Lingam,
Earth (places) etc. In respect to the idols, i.e., image formed of
wood, stone, metal etc. A procedure of securing divine spirit in
the image is normally followed as provided in the Hindu
scriptures that is called "consecration".
1760. In Ram Jankijee Deities (supra), the Court observed
that it is customary that the image is first carried to the Snan
Mandap and thereafter the founder utters the Sankalpa mantra
and upon completion thereof the images is given a bath with
holy water, ghee, dahi, honey and rose water. Thereafter, the
oblation to the sacred fire by which the pran pratistha takes
places and eternal spirit is infused in that particular idol and the
image is then taken to the temple itself and the same is
thereafter formally dedicated to the deity.
1761. In Sri Venkataramana Devaru Vs. State of Mysore
(supra), Agamas are described as the ceremonial law dealing
with matters like construction of the temples, installation of
idols and conduct of worship. There are separate Agamas for the
1872
Saiva temples and Vaishanava temples. The important Saiva
Agamas are Kamikagama, Karnagama and Suprabathagama.
The principal Vaishanava Agamas are Vaikanasa and
Pancharathra. The purpose of this ritual came of be noticed by
the Apex Court in Seshammal Vs. State of T.N. AIR 1972 SC
1586. It is said that the rituals have twofold object; one is to
attract the lay worshippers to participate in the worship carried
on by the Priest or Archaka. It is believed when a congregation
of worshippers participate in the worship of a particular attitude,
aspiration and devotion is developed and confers great spiritual
merit. The second object is to preserve the image from
pollution, defilement and desecration. Regarding a dispute
arising as to whether Prana Pratishta of an idol installed in a
temple was properly performed, the Court held that when an
idol is installed, the presumption is that such ceremonies have
properly been performed.
1762. In Deoki Nandan (supra), the Court observed that no
particular kind of ceremony and its performance is necessary to
be shown to constitute or to demonstrate that there is a valid
dedication or Prana Pratishta.
1763. The question of asking of evidence relating to Prana
Pratishta ceremony is relevant only in the context of judging
whether a temple is a public temple or a private temple. An idol
gets conferred the spiritual and divine spirit if the believers or
the worshippers visit for its Darshan, Pooja as a matter of right
believing the existence of such divine presence and nothing
more is required. Senior Sankaracharya of Kanchi Kamakoti
Peeta in "Aspects of our Religion, Bhavan's Book University"
has made observations on the manner and effect of the
consecration as follows:
1873
"Before an idol or image is worshipped, a process of
divinising it is gone through. The image is made instinct
with God. This is known as the process of Prana-pratishta.
Every human being is a compendious expression of the
cosmos. Man is a microcosm of the universe. He is made of
the five physical elements, the pancha bhootas, which are
also the substance of the universe. God in His cosmic form,
inheres in the Pancha boothas, which are crystallised in
the human body and expressed as the five sense organs
each functioning in terms of those elements. Before an idol
or image is worshipped, it has to be consecrated. The
process of consecration is called as stated earlier Prana-
pratishta. The devotee first performs aatma pooja; that is,
he meditates on his inner aatman encased in his body. By
appropriate mantras he first purifies his body including his
pranas and his sense organs. The vital airs and the organs
of perception and activity animating him as the microcosm
of the universe which is the macrocosm are transferred by
gestures to the accompaniment of mantras on to the idol or
the image wherein the manifestation of the Supreme (the
ishta devata) is devoutly invoked. The following prayer is
uttered before the prana pratishta:
svaatmasamsttham ajam suddham tvaamadya
paramesvara aranyaamiva havyaasam moortau
aavaahayaam-yaham
'O Lord of the Worlds, you are unborn and
pure. You are in my heart. I invoke You in this
moorti. Make yourself visible to me in my
concentration even as the agni comes out by friction.'
Thereupon it becomes instinct with divinity and
1874
becomes fit for worship. After this is done the worshipper
does not consider it any longer as a material object. It
becomes God Himself. Then follow the sixteen items of
ritualistic worship which are offered with fervour and
devotion.
1764. "Bhagavadgita" says "whatever may be the form in
which each devotee seeks to worship with faith, I make their faith
steadfast in that form alone."
1765. It is believed by Hindus that worship consists of four
forms of which idol worship is one of such form. Mode of
worship varies amongst persons of different faith. It is an
assimilation of the individual soul with the infinite. For its
attainment diverse views and theories have been propounded
and one of them is idol worship. Hindus believe that the
Supreme Being manifests himself with three aspects as Brahma,
the Creator, Vishnu, the Preserver and Shiva, the Destroyer.
Those who believe and are devoted to the worship of Vishnu are
called Vaishnavas and those who worship Shiva are called
Shaivites. Vaishnavas believe that God manifest himself in
different incarnations. In other words, manifesting himself in the
flesh which is also termed by Hindus as avatara, something
which is expressive, absolute and immaculate. Vaishnavas
believe in Deity 'Vishnu' who has manifested himself in 10
avatars. Further, according to Hindu belief, Vishnu as preserver
exists in five forms, viz., Para, Vyuha, Vibhava, Arca and
Antaryamin. Para is the transcendental form. Vibhav includes
the ten divine descends (avatars) and also thirty nine forms
which he takes from time to time. Arca represents God in the
form of idol, which though formless, takes this finite form to
show favour of His devotees. The form of Antaryamin is to
1875
remain within the self and control it by directing it to lead a
virtuous way of life in accordance with the residues of the deeds
done by it.
1766. The purpose of religious experience is to integrate
human life, socially, materially and morally. Worship is
certainly specifically religious and it is an attitude of mind
which is not compatible with science. Science does not worship.
It enquires, analyses, classifies and does sums. Religion is not
merely worship of God but knowledge of God, for if it does not
know its God then God is a figment of imagination and it
worships it knows not what. All honest religions necessarily
involve a strenuous effort to know the supreme reality and the
knowledge of God must involve all knowledge in its scope. It
can thus be said that religious experience is an internal
experience and the deity in Temple is supposed to provoke the
inner experience. Temple, therefore, forms an integral part of
Hindu religion and idol installed therein forms the main symbol
of religious worship manifesting the dignity of God. The Image
of Lord in a Temple after Pran Pratishtha is a centre of
reference, a symbol of the Great Consciousness whose
attainment is ultimately the pinnacle of religious experiences.
According to Hindu belief, worship of God is of four kinds, viz.,
Japa-chanting of Mantras; Home- giving oblation into fire;
Archana-worship of God in form of idol in temple; and Dhyana-
concentration of God alone. Of these four, Archana gained an
established form of worship in temple.
1767. The concept of conferring legal personality upon a
Hindu idol/Deity has undoubtedly been developed and in fact
established for the first time by the Courts of British India in
19
th
Century. With the expansion of East India Company
1876
towards ruling this country, it followed the policy of non-
interference with the personal laws of inhabitants and therefore
the subject within the reigning territory of East India Company
was allowed to be governed by their personal laws so long as
the same were not inconsistent with the enacted statutes
governing the East India Company and the subject under its
reigning arena. The British Parliament also followed the same
policy while enacting laws for Indian subcontinent under the
reign of East India Company by laying down that a dispute
between the parties belong to one particular religion may be
decided according to their personal laws. For example where
both the parties are Hindu, by the principles of Hindu Law and
where both the parties are Muslim according to the principles of
Muslim Law. No clear cut or uniform law was existing in a
matter where both the parties belong to different religions and
there the matter was left to be decided according to equity and
good conscience by the concerned Courts. To the extent the
matter was governed by statutory laws there was no problem as
the same was followed over and above the personal laws. It is
this policy which made it necessary for the judicial officers to
learn the personal laws of the inhabitants i.e. Hindu Law and
Muslim Law. No doubt, for better administration and to lay
down their policies which may enable the Britishers to continue
to rule for long, they studied and made several surveys etc.
about the local administration, customs, traditions etc. but due to
the requirement of knowledge of personal laws for deciding the
disputes, it became utmost necessary for the Judges of the
Courts to acquaint themselves with the two kinds of personal
laws of this country. It is in this context we find the foremost
name of Sir William Jones, the founder of Asiatic Society of
1877
Bengal who ventured in translation of several Hindu ancient
scriptures written in Sanskrit, into English. He was a Judge
appointed to the Supreme Court of Fort William, Calcutta and
came to India in the later part of 18
th
Century. The another well
known name in this regard is F.E.Pargitor who was also a Judge
of Calcutta High Court.
1768. The Britishers knew well and were fond of the system
of Roman Laws. According to them, Roman Law was the most
ancient, well drafted and planned system of law and therefore,
they could not conceive of existence of any earlier ancient
culture with well planned system of law having its own separate
identity and principles. With this frame of mind, they studied
ancient Hindu Law comparing it with Roman Law on each and
every aspect thereof, even if the two were distinct and
dissimilar, wherever possible, they compared it with Christianity
and the rules of Church followed in England. Some such work
was done by Col. Brook, West and Buhler and Sir Henry Maine.
One of such earliest identification of Hindu Religious
Endowment i.e. temple and idols with the corporate bodies as
known in England and the legal personality i.e. juridical persons
was made by West and Buhlor in their work "Hindu Law".
1769. In Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha
Swami and others (supra) Honble Justice Subrahmania Ayyar
of Madras High Court said:
"It is to give due effect to such a sentiment,
widespread and deep-rooted as it has always been, with
reference to something not capable of holding property as
a natural person, that the laws of most countries have
sanctioned the creation of a fictitious person in the matter
as is implied in the felicitous observation made in the work
1878
already cited "Perhaps the oldest of all juristic persons is
the God, hero or the saint" (Pollock and Maitland's
History of English Law, Volume 1, 481).
1770. One of the earlier cases in this regard came before the
Bombay High Court in Manohar Ganesh Tambekar & Ors.
Vs. Lakhmiram Govindram (supra). The question arose about
the title and use of the offerings made at the shrine or the temple
of Shri Ranchhod Raiji at Dakor. The defendants frequently
acted in contravention of the rules, set up a proprietary title to
the offerings made at the shrine, appropriated part of the
offerings to their own use, and refused to render an account of
the property held as trustee for the idol. The suit was filed with
the consent of the Advocate General under Section 539 CPC
(Act X of 1877). The High Court dealt with the relationship of
idol with such trustees and on pages 263-265 held:
The Hindu law, like the roman law and those derived
from it, recognizes, not only corporate bodies with rights
of property vested in the corporation apart from its
individual members, but also the juridical persons or
subjects called foundations (West and Buhler, H.L.., 201,
185, 553, 555). A Hindu, who wishes to establish a
religious or charitable institution, may, according to his
law, express his purpose and endow it (West and Buhler,
H.L., 99, 197, 216), and the ruler will give effect to the
bounty, or at least protect it so far, at any rate, as it is
consistent with his own dharma or conceptions of morality
(West and Buhler, H.L., 33; Manu VIII, 41 ; Coleb, Dig.,
B.III, Ch. II, T.28). A trust is not required for this purpose:
the necessity of a trust in such a case is indeed a
peculiarity and a modern peculiarity of the English law
1879
(Spence Eq. Juris., 440 ; Sav. Syst., s. 88). In early times a
gift placed, as it was expressed, on the altar of God
sufficed to convey to the church the lands thus dedicated
(See Elton's Ten. of Kent, 17, 18). Under the Roman law of
pre-Christian ages such dedications were allowed only to
specified national deities [W. & B., H.L., 185 (b) ; Ulpain
Fr. XXII, s. 6. They were thus placed extra commercium.
Sav. Syst., sec. 88 (c c)]. After Christianity had become the
religion of the empire, dedications to particular churches
or for the foundation of churches and of religious and
charitable institutions were much encouraged (Sav. Syst.,
sec. 88 ; comp. W. & B., 197). The officials of the church
were empowered specially to watch over the administration
of the funds and estates thus dedicated to pious uses (Sav.
Syst., sec.88), but the immediate beneficiary was
conceived as a personified realization of the church
hospital or fund for ransoming prisoners from captivity
(Sav. Syst., sec. 88). Such a practical realism is not
confined to the sphere of law; it is made use of even by
merchants in their accounts, and by furnishing an ideal
centre for an institution to which the necessary human
attributes are ascribed- Dhadphale v. Gurav (I.L.R., 6
Bom., 122)- it makes the application of the ordinary rules
of law easy as in the case of an infant or a lunatic (Sav.
Syst., sec. 90 ; comp. Kinlock v. Secretary of State for India
in Council, L.R., 15 Ch. Div., at p. 8). Property dedicated
to a pious purpose is, by the Hindu as by the Roman law,
placed extra commercium, (W & B., H.L., 185, 197) with
similar practical savings as to sales of superfluous articles
for the payment of debts and plainly necessary purposes
1880
(See Cod. Lib. I, Tit. 2, Fr. 21 ; W. & B., H.L., 555, 557.
See also Rupa Jagset v. Krishnaji Govind, I.L.R., 9
Bom., p. 169). Mr. Macpherson admitted for the
defendants in this case that they could not sell the lands
bestowed on the idol Shri Ranchhod Raiji. This
restriction is like the one by which the Emperor forbade the
alienation of dedicated lands under any circumstances
(Vyav. May., Chap. IV, S. VII, p.23 ; Nov. 120, cap., 10). It
is consistent with the grants having been made to the
juridical person symbolized or personified in the idol at
Dakor. It is not consistent with this juridical person's being
conceived as a mere slave or property of the shevaks whose
very title implied not ownership, but service of the god. It is
indeed a strange, if not wilful, confusion of thought by
which the defendants set up the Shri Ranchhod Raiji as a
deity for the purpose of inviting gifts and vouchsafing
blessings, but, as a mere block of stone, their property for
the purpose of their appropriating every gift laid at its feet.
But if there is a juridical person, the ideal embodiment of a
pious or benevolent idea as the centre of the foundation,
this artificial subject of rights is as capable of taking
offerings of cash and jewels as of land. Those who take
physical possession of the one as of the other kind of
property incur thereby a responsibility for its due
application to the purposes of the foundation-compare
Griffin v. Griffin (1 Such. & Lef., 352); Mulhallen v.
Marum (3 Dr. & War., 317) ; Aberdeen Town Council v.
Aberdeen University (L.R., 2 Ap. Cas., 544). They are
answerable as trustees even though they have not
consciously accepted a trust, and a remedy may be sought
1881
against them for mal-administration (comp. Ind. Trusts Act
II of 1882, ss. 88, 95) by a suit open to any one interested,
as under the Roman system in a like case by means of a
popularis actio. (emphasis added)
1771. In Jogendra Nath Naskar (supra) the Apex Court
referred to both the aforesaid judgements of Bombay and
Madras High Court and also observed in para 6 that same view
has been expressed by the judicial committee in Maharanee
Shibessoureea Debia Vs. Mathooranath Acharjo, 13 MIA 270
and Prosanna Kumari Debya Vs. Golab Chand Baboo, LR 2
IA 145.
1772. In Prosanna Kumari Debya (supra) the judicial
committee observed:
It is only in an ideal sense that property can be said to
belong to an idol and the possession and management must
in the nature of things be entrusted with some person as
shebait or manager. It would seem to follow that the person
so entrusted must of necessity be empowered to do
whatever may be required for the service of the idol and for
the benefit and preservation of its property at least to as
great a degree as the manager of an infant heir-words
which seem to be almost on echo of what was said in
relation to a church in a judgment of the days of Edward I:
A church is always under age and is to be treated as an
infant and it is not according to law that infants should be
disinherited by the negligence of their guardians or be
barred of an action in case they would complain of things
wrongfully done by their guardians while they are under
age' (Pollock and Maitland's 'History of English Law',
Volume 1, 483".
1882
1773. In Khetter Chunder Ghose Vs. Hari Das
Bundopadhya (supra) it was found that the household idol was
made over to relatives, owing to the family, whose idol it was,
being unable to carry on the worship on account of the paucity of
profits of the endowed lands, and it was held that the transfer
was justified in the interests of the idol. It was a proper and a
pious act. The Shebait being charged fundamentally with the duty
of seeing to the worship being carried on, and, having the
concurrence of the entire family to the transaction, did have
power to carry through the transaction for the purpose of
performing its worship regularly through generation to
generation. The members of the family were thereby deprived of
no right of worship. The interests of worshippers and idol were
conserved. Their Lordships do not think that such cases form
any ground for the proposition that Hindu family idols are
property in the crude sense maintained, or that their
destruction, degradation or injury are within the power of
their custodian for the time being. Such ideas appear to be in
violation of the sanctity attached to the idol, whose legal entity
and rights as such the law of India has long recognised."
(emphasis added)
1774. In Khetter Chunder Ghose (supra) the Court also
held that sale of an idol is prohibited in Hindu Law though in
certain circumstances, gift of an idol is not prohibited. The
Court on page 559 observed as under:
It is true that the Hindu law prohibits the sale of an idol
(see the Padma Purana, Patalakhanda, Chapter 79), and
also the partition of it (see Dayabhaga, Chapter VI, s. II,
26), though when there are several idols, partition is
recognised by custom (see West and Buhler's Digest of
1883
Hindu Law, 2
nd
edition, page 396). But there is no
absolute prohibition against the gift of an idol. An idol is
not mentioned as an unfit subject of gift by Hindu lawyers
in their enumeration of what are, and what are not, fit
subjects of gift (see Colebrooke's Digest, Book II, Chapter
IV); but on the contrary the gift of an idol under certain
circumstances is considered a laudable act (see the Varaha
Purana, Chapter 185; see also Hemadris, Chaturvarga
Chintamani, Danakhanda, Chapter II).
1775. In Avadh Kishore Dass v. Ram Gopal (supra),
Plaintiffs instituted a suit for replacement of the Mahants of a
temple. The suit was contested by the then Mahants on the
ground that the suit property was the personal property of the
Mahants, and not that of the temple. The suit was decreed by the
District Judge, and his decree was substantially affirmed by
High Court. Supreme Court accepted the findings, on the basis
of certain exhibits, that the suit property belong to the temple as
a juristic person:
Properly constructed, this Wajibularz shows that
the entire revenue estate of village Bhawalpura vests in the
Temple or the Math as a juristic person.; and that the
entire property in suit is the absolute property of the
God, Thakurji as a juristic person; and the result No
extract from the revenue records to show that Bhumidhari
rights were granted not to the idol or the Temple as a
juristic person, but to the appellant personally.
1776. The right of a Shebait to institute a suit in his own
name to recover property belonging to the deity was recognised
in Jagadindra Nath Vs. Hemanta Kumari, 31 Ind App 203 at
p.210.
1884
1777. In Bhupati Nath Smrititir the Bhattacharjee (supra)
in concurring judgment of Full Bench, Justice Mookerjee
observed that The Hindu Law recognises dedications for the
establishment of the image of a deity and for the maintenance
and worship thereof. The property so dedicated to a pious
purpose is placed extra commercium ............It is immaterial
that the image of the deity has not been established before the
death of the testator or is periodically set up and destroyed in the
course of the year.
1778. Justice Chatterjee also in the concurring judgment
(above) observed: Shastri's Hindu Law page 420 : shews the
Hindu idea of the forms attributed to God for the convenience of
worship : a particular image may be insentient until
consecrated but the deity is not. If the image is broken or lost,
another may be substituted in its place and when so substituted it
is not a new personality but the same deity and properties
previously vested in the lost or mutilated Thacoor become vested
in the substituted Thacoor. A Hindu does not worship the
idol or the material body made of clay or gold or other
substance, as a mere glance at the mantras and prayers will
show. They will have the eternal spirit of the deity or certain
attributes of the same in a suggestive form which is used for
the convenience of contemplation as a mere symbol or
emblem. It is the incantation of the mantras peculiar to a
particular deity that causes the manifestation or presence of the
deity or, according to some, the gratification of the deity.
(emphasis added)
1779. However, we find from the judgment of Hon'ble
Jenkins, C.J. in Bhupati Nath (supra) that he noticed a slightly
different view based on Saraswati's Hindu Law of Endowment
1885
on page 647 of the report but His Lordship declined to make any
final comment thereon. The report says :
In favour of this view we have the doctrine of Medhatithi
cited to us in the course of the argument that the primary
meaning of property and ownership is not applicable to
God, and the train of reasoning that is suggested by the
teaching of the Aditya Purana that the gods cease to reside
in images which are multilated, broken, burnt and so forth
(Sarswati's Hindu Law of Endowment, page 129).
But whatever may be the true view on this obscure
and complex question, this at least seems clear that the rule
which requires relinquishment should be to a sentient
person does not forbid the gift of property to trustees for a
religious purpose though that purpose cannot in strictness
be called a sentient person.
1780. The real question considered by the Full Bench in
Bhupati Nath (supra) and decided unanimously was as under:
The principle of Hindu Law, which invalidates a gift other
than to a sentient being capable of accepting it, does not
apply to a bequest to trustees for the establishment of an
image and the worship of a Hindu deity after the testator's
death, and does not make such a bequest void
1781. In Rambrahma Chatterjee Vs. Kedar Nath Banerjee
AIR 1923 Cal 60 it was observed that a Hindu deity is treated in
many respects certainly individual.
1782. In Ananda Chandra Chakrabarti vs. Broja Lal
Singha and others 1923 Calcutta 142 it was held:
It is well-settled that dedication vests the property in the
idol, only when the founder has title. The ceremony
divests the proprietorship of the temple from the builder
1886
and vests it in the image, which by process of vivification
has acquired existence as a juridical personage.
1783. Observing that Hindu deity is a living being and is
treated in the same way in Rambrahama Chatterji Vs. Kedar
Nath Banerji (supra) the Court said:
We need not describe here in detail the normal type of
continued worship of a consecrated imagethe sweeping
of the temple, the process of smearing, the removal of the
previous day's offering of flowers, the presentation of fresh
flowers the respectful oblation of rice with flowers and
water, and other like practices. It is sufficient to state that
the deity is, in short, conceived as a living being and is
treated in the same way as the master of the house would
be treated by his humble servant. The daily routine of like
is gone through with minute accuracy: the vivified image is
regaled with the necessaries and luxuries of life in due
succession even to the changing of clothes, the offering of
cooked and uncooked food, and the retirement to rest.
1784. In Pramath Nath Vs. Pradyumna Kumar (supra) the
above observation of Hon'ble Mukherji J in Rambrahma
Chatterjee (supra) were approvingly quoted.
1785. In Tarit Bhusan Vs. Sri Iswar Sridhar Salagram
Shila Thakur AIR 1942 Cal 99 a Division Bench of Calcutta
High Court said that a Hindu idol although a juristic person but
this juristic person is of a peculiar type. It is conceived by
Hindus as a living being with its own interests apart from the
interests of its worshippers, and it is recognised as a juristic
person capable of being the subject of legal rights and duties but
only in an ideal sense. Pal J. at page 532 observed:
"Though an idol is thus recognised as a juristic person
1887
capable of suing and being sued, strictly speaking it has no
material interest of its own. The efficient subject of the
rights ascribed to an Idol must ultimately be some human
beings. It must be they who enjoy such rights and, if law
protects such rights, it is because of the existence of such
ultimate human concern. The Idol, as the juridical person
only affords the technical means of developing the juristic
relations between those ultimately interested in the
endowed property and the strangers. The so-called
interest of the Idol is merely an ideal interest very
different from the interest which an infant has in his
property. The introduction of the Idol and its recognition
as a juristic person are more a matter for the procedure
and the procedure in India recognises the Idol as having
a locus standi in judicio."
1786. In Parmanand Vs. Nihal Chand AIR 1938 PC 195 it
was held that where a property is dedicated to an idol for the
object of performing its puja and other necessary ceremonies the
person managing such property is only a shebait, idol being a
juristic person in Hindu Law capable of holding such
property. This decision has been followed by the Apex Court in
The Bihar State Board of Religious Trust Vs. Mahanth Sri
Biseshwar Das AIR 1971 SC 2057.
1787. In Mahant Ram Saroop Dasji Vs. S.P. Sahi (supra),
the effect of damage to the idol was considered and in para 10 of
the judgment, the Court observed:
Further, it is difficult to visualise that a Hindu private
debutter will fail, for a deity is immortal. Even if the idol
gets broken or is lost or stolen, another image may be
consecrated and it cannot be said that the original object
1888
has ceased to exist. (Para 10)
1788. In Narayan Bhagwantrao Gosavi Balajiwale (supra)
regarding the removal of the idol from one place to another, the
Court held:
The case is an authority for the proposition that the idol
cannot be removed permanently to another place,
because that would be tantamount to establishing a new
temple. However, if the public agreed to a temporary
removal, it could be done for a valid reason. (para 36)
1789. Holding Hindu idol as juristic entity the Apex Court in
Jogendra Nath Naskar (supra) in para 5 the Court said:
5. It is well established by high authorities that a
Hindu idol is a juristic person in whom the dedicated
property vests.
1790. In the context of above authorities the Apex Court in
Jogendra Nath Naskar (supra) explained that any Hindu idol
has a legal personality and is not the material image but it is like
to be treated as a "natural person" and said:
Such ascription of legal personality to an idol must
however be incomplete unless it be linked to a natural
person with reference to the preservation and management
of the property and the provision of human guardians for
them variously designated in different parts of the
country. (para 6)
It should however be remembered that the juristic
person in the idol is not the material image, and it is an
exploded theory that the image itself develops into a legal
person as soon as it is consecrated and vivified by the Pran
Pratishta ceremony. It is not also correct that the supreme
being of which the idol is A symbol or image is the
1889
recipient and owner of the dedicated property. This is
clearly laid down in authoritative Sanskrit Texts. Thus, in
his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1,
Sabara Swami states :
n i-i , i l-ln, i-i- | i li n lli n- rln,n-n-
-- | n i- i i iili i ll n | n--i in|ln|
li iii n nni i lni ln, ni- l n -n- |
"Words such as Village of the Gods, land of the
Gods are used in a figurative sense. That is property
which can be said to belong to a person, which he can
make use of as he desires. God however, does not make use
of the, village or lands, according to its desires". Likewise,
Medhathithi in commenting on the expression Devaswam
in Manu, Chapter XI, Verse 26, writes:
i ls, inil l ii i - - , ns -- - -
--il- i-, ii iin |
"Property of the Gods, Devaswam, means whatever
is abandoned for Gods, for purposes of sacrifice and the
like, because ownership in the primary sense, as showing
the relationship between the owner and the property
owned, is impossible of application, to Gods". Thus,
according to the texts, the Gods have no beneficial
enjoyment of the properties, and they can be described as
their owners only in a figurative sense (Gaunartha). The
correct legal position is that the idol as representing and
embodying the spiritual purpose of the donor is the
juristic person recognised by law and in this juristic
person the dedicated property vests. As observed by Mr.
Justice B. K. Mukherjea:
"With regard to Debutter, the position seems to
be somewhat different. What is personified here, is
1890
not the entire property which is dedicated to the deity
but the deity itself which is the central part of the
foundation and stands as the material symbol and
embodiment of the pious purpose which the dedicator
has in view. "The dedication to deity", said Sir
Lawrence Jenkins in Bhupati v. Ramlal, 10 CLJ 355
at 369, "is nothing but a compendious expression of
the pious purpose for which the dedication is
designed". It is not only a compendious expression
but a material embodiment of the pious purpose and
though there is difficulty in holding that property can
reside in the aim or purpose itself, it would be quite
consistent with sound principles of Jurisprudence to
say that a material object which represents or
symbolises a particular purpose can be given the
status of a legal person, and regarded as owner of
the property which is dedicated to it."
The legal position is comparable in many respects to
the, development in Roman Law. So far as charitable
endowment is concerned Roman Law-as later developed
recognised two kinds of juristic persons. One was a
corporation or aggregate of persons which owed its juristic
personality to State sanction. A private person might make
over property by way of gift or legacy to a corporation
already in existence and might at the same time prescribe
the particular purpose for which the property was to be
employed e.g. feeding the poor, or giving relief to the poor
distressed. The recipient corporation would be in a
position of a trustee and would be legally bound to spend
the funds for the particular purpose. The other alternative
1891
was for the donor to create an institution or foundation
himself. This would be a new juristic person which
depended for its origin upon nothing else but the will of the
founder, provided it was directed to a charitable purpose.
The foundation would be the owner of the dedicated
property in the eye of law and the administrators would be
in the position of trustees bound to carry out the object of
the foundation. As observed by Sohm:
"During the later Empire--from the fifth
century onwards-foundations created by private
individuals came to be recognised as foundations in
the true legal sense, but only if they took the form of
a ipia cause (piumcorpus) i.e. were devoted to
pious uses, only in short, if they were charitable
institutions. Wherever a person dedicated property-
whether by gift inter vivos or by will--in favour of the
poor, or the sick, or prisoners, orphans, or aged
people, he thereby created ipso facto a new subject of
legal rights-the poor-house, the hospital, and so
forth-and the dedicated property became the sole
property of this new subject; it became the sole
property of the new juristic person whom the founder
had called into being. Roman law, however, took the
view that the endowments of charitable foundations
were a species of Church property. Piae causas were
subjected to the control of the Church, that is, of the
bishop or the ecclesiastical administrator, as the
case might be. A pia causa was regarded as an
ecclesiastical, and consequently, as a public
institution, and as such it shared that corporate
1892
capacity which belonged to all ecclesiastical
institutions by virtue of a general rule of law. A pia
causa did not require to have a juristic personality
expressly conferred upon it. According to Roman law
the act-whether a gift inter vivos or a testamentary
disposition-whereby the founder dedicated property
to charitable uses was sufficient, without more, to
constitute the pia cause a foundation in the legal
sense, to make it, in other words, a new subject of
legal rights".
We should, in this context, make a distinction
between the spiritual and the legal aspect of the Hindu
idol which is installed and worshipped. From the spiritual
standpoint the idol may be to the worshipper a symbol
(pratika) of the Supreme God-head intended to invoke a
sense of the vast and intimate reality, and suggesting the
essential truth of the Real that is beyond all name or form.
It is basic postulate of Hindu religion that different images
do not represent different divinities, they are really symbols
of One Supreme Spirit and in whichever name or form the
deity is invoked, the Hindu worshipper purports to worship
the Supreme Spirit and nothing else.
; l- i- l- ir
l i r ii ln| (Rig Veda I-164)
(They have spoken of Him as Agni, Mitra, Varuna,
Indra; the one Existence the sages speak of in many ways).
The Bhagavad Gita echoes this verse when it says:
i -i l i iii
iln - lni-r| (Chap. XI-39)
(Thou art Vayu and Yama, Agni, Varuna and Moon;
1893
Lord of creation art Thou, and Grandsire).
Samkara, the great philosopher, refers to the one
Reality, who, owing to the diversity or intellects
(matibheda) is conventionally spoken of (parikalpya) in
various ways as Brahma, Visnu and Mahesvara. It is
however possible that the founder of the endowment or the
worshipper may not conceive on this highest spiritual plane
but hold that the idol is the very embodiment of a personal
God, but that is not a matter with which the law is
concerned. Neither God nor any supernatural being could
be a person in law. But so far as the deity stands as the
representative and symbol of the particular purpose which
is indicated by the donor, it can figure as a legal person.
The true legal view is that in that capacity alone the
dedicated property vests in it. (pages 558-560)
1791. It is thus well established by high authorities that a
Hindu idol is a "juristic person" in whom the dedicated property
vests. In Manohar Ganesh vs. Lakshmiram (supra) called the
Dakor temple case. West and Birdwood, JJ., state:
"The Hindu Law, like the Roman Law and those derived
from it, recognises not only incorporate bodies with rights
of property vested in the corporation part form its
individuals members but also juridical persons called
foundations. A Hindu who wishes to establish a religious or
charitable institution may according to his law express his
purpose and endow it and the ruler will give effect to the
bounty or at least, protect it so far at any rate as is
consistent with his own Dharma or conception of morality.
A trust is not required for the purpose; the necessity of a
trust in such a case is indeed a peculiarity and a modern
1894
peculiarity of the English Law. In early law a gift placed as
it was expressed on the alter of God, sufficed it to convey to
the Church the lands thus dedicated. It is consistent with
the grants having been made to the juridical person
symbolised or personified in the idol". The same view has
been expressed by the Madras High Court in Vidyapurna
Tirtha Swami Vs. Vidyanidhi Tirtha Swami, (1904) ILR 27
Mad 435, in which Mr. Justice Subramania Ayyar stated.
"It is to give due effect to such a sentiment,
widespread and deep-rooted as it has always been
with reference to something not capable of holding
property as a natural person, that the laws of most
countries have sanctioned the creation of a fictitious
person in the matter, as is implied in the felicitous
observation made in the work already cited "Perhaps
the oldest of all juristic persons is the God, hero or
the saint" (Pollock and Maitland's History of English
Law, Volume I, p.481.)
That the consecrated idol in a Hindu temple is a juridical
person has been expressly laid down in Manohar Ganesh's
case (supra), Which Mr. Prannath Saraswati, the author of
the Tagore Lectures on Endowments" rightly enough
speaks of as one ranking as the leading case on the subject,
and in which West J., discusses the whole matter with much
erudition. And in more than one case, the decision of the
Judicial Committee proceeds on precisely the same footing
(Maharancee Shibessouree Debia vs. Mothooranath
Acharjo, (1869-70) 13 Moo Ind App 270 (PC), and
Prosunno Kumari Debya vs. Golab Chand Baboo, (1874-
75) 2 Ind App 145 (PC). Such ascription of legal
1895
personality to an idol must however be incomplete unless it
be liked to a natural person with references to the
preservation and management of the property and the
provision of human guardians for them variously
designated in different parts of the country. In (1874-75)
Ind App 145 (PC) the judicial Committee observed thus: "It
is only in an ideal sense that property can e said to belong
to an idol and the possession and management must in the
nature of things be entrusted with some person as shebait
or manger. It would seem to follow that the person so
entrusted must of necessity be empowered to do whatever
may be require for the service of the idol and for the benefit
and preservation of its property at least to as great a
degree as the manager of an infant heir" - words which
seem to be almost on echo of what was said in relation to a
church in a judgment of the days of Edward I: "A church
is always under age and is to be treated as an infant and
it is not according to law that infants should be
disinherited by the negligence of their guardians or be
barred of an action in case they would complain of
things wrongfully done by their guardians while they are
under age" (Pollock and Maitlands's 'History of English
Law'. Volume I, p. 463)".
1792. It should however be remembered that the juristic
person in the idol is not the material image, and it is an exploded
theory that the image itself develops into a legal person as soon
as it is consecrated and vivified by the Pran Pratishta ceremony.
It is not also correct that the supreme being of which the idol is
a symbol or image is the recipient and owner of the dedicated
property. This is clearly laid down in authoritative Sanskrit
1896
Texts. Thus, in his Bhashya on the Purva Mimamasa, Adhyaya
9, para 1, Sabara Swami states:
n i -i , i l -l n, i l -- , i -l i n-
l i n-rl n, n- -- |
n i -- i - i i i l i i - l l n ni , n--i
- sni l n|
l i i i i - n nni i l ni l n, ni - l i n
- n- |
"Words such as 'village of the Gods,' 'land of the Gods' are
used in a figurative sense. That is property which can be
said to belong to a person, which he can make use of as he
desires. God however does not make use of the village of
lands, according to its desires".
1793. The legal position is comparable in many respects to
the development in Roman Law. So far as charitable
endowment is concerned, Roman Law, as later developed
recognised two kinds of juristic persons. Once was a corporation
or aggregate of persons which owed its juristic personality to
State sanction. A private person might make over property by
way of gift or legacy to a corporation already in existence and
might at the same time prescribe the particular purpose for
which the property was to be employed e.g. feeding the poor, or
giving relief to the poor or distressed/. The recipient corporation
would be in a position of a trustee and would be legally bound
to spend the funds for the particular purpose. The other
alternative was for the donor to create an institution or
foundation himself. This would be a new juristic person which
depended for its origin upon nothing else but the will of the
founder provided it was directed to a charitable purpose. The
foundation would be the owner of the dedicated property in the
eye of law and the administrators would be in the position of
1897
trustees bound to carry out the object of the foundation. As
observed by Sohm:
"During the later Empire - from the fifth centre onwards -
foundations created by private individuals came to be
recognised as foundations in the true legal sense, but only
if they took the form of a 'pia causa' ('Pium corpus') i.e.,
were devoted to 'pious uses', only in short, if they were
charitable institutions. Wherever a person dedicated
property - whether by gift inter vivos or by will - in favour
of the poor, or the sick, or prisoners, orphans, or aged the
dedicated property became the sole property of this new
subject: it became the sole property of the new juristic
person whom the founder had called into being. Roman
law, however, took the view that the endowments of
charitable foundations were a species of Church property,
Piae causac were subjected to the control of the Church,
that is, of the bishop or the ecclesiastical administrator, as
the case might be. A poa causa was regarded as an
ecclesiastical, and consequently, as a public institution,
and as such it shared that corporate capacity which
belonged to all ecclesiastical institutions by virtue of a
general rule of law. A pia causa did not require to have a
juristic personality expressly conferred upon it. According
to Roman law the act - whether a gift inter vivos or a
testamentary disposition - Whereby the founder dedicated
property to charitable uses was sufficient, without more to
constitute the pia causa a foundation in the legal sense, to
make it, in other words, a new subject of legal rights"
1794. We should in this context, make a distinction between
the spiritual and the legal aspect of the Hindu idol which is
1898
installed and worshipped. From the spiritual stand point the idol
may be to the worshipper a symbol (Pratika) of the Supreme
God-head intended to invoke a sense of the vast and intimate
reality and suggesting the essential truth of the Reaj that is
beyond all name of form, It is a basic postulate of Hindu
religion that different images do not represent different
divinities, they are really symbols of One Supreme Spirit and in
which ever name or from the deity is invoked, the Hindu
worshipper purports to worship the Supreme Spirit and nothing
else.
(Rig Veda I. 164)
They have spoken of Him as Agni, Mitra, Varuna,
Indra, the one Existence the sages speak of in many
ways). The Bhagavad Gita echoes this verse when it says:
(Thou art Vayu and Yama, Agni, Varuna and Moon:
Lord of Creation art Thou, and Grandsire). Sankara
- the great philosopher refers to the one Reality,
who, owing to the diversity of intellects
(Matibheda) is conventionally spoken of
(Parikalpya) in various ways as Brahman, Visnu
and Mahesvara. It is however possible that the
founder of the endowment or the worshipper may not
conceive on this highest spiritual plane but hold that
the idol is the very embodiment of a personal God,
but that is not a matter with which the law is
concerned. Neither God nor any supernatural
being could be a person in law. But so far as the
deity stands as the representative and symbols of
the particular purpose which is indicated by the
donor, it can figure as a legal person. The true
1899
legal view is that in that capacity alone the dedicated
property vets in it. There is no principle why a deity
as such a legal person should not be taxed if such a
legal person is allowed in law to own property even
though in the ideal sense and to sue for the property,
to realise rent and to defend such property in a Court
of law again in the ideal sense... Our conclusion is
that the Hindu idol is a juristic entity.. capacity of
holding property and of being taxed through its
shebaits who are constructed with the possession and
management of its property.
1795. In Kalanka Devi Sansthan (supra) reiterating that a
Hindu idol is a juristic person, with respect to the vesting of
property, it held:
The distinction between a manager or a Shebait of an idol
and a trustee where a trust has been created is well
recognised. The properties of the trust in law vest in the
trustee whereas in the case of an idol or a Sansthan they
do not vest in the manager or the Shebait. It is the deity
or the Sansthan which owns and holds the properties. It
is only the possession and the management which vest in
the manager (Para 5)
1796. When property is given absolutely for the worship of
an idol it vests in the idol itself as a juristic person. However,
the idol cannot take advantage of the provision contained in the
Act by which possession can be claimed from the tenant on the
ground that it is required for personal cultivation. The
position of idol is not the same as minor and the idol does not
fall within Explanation 1 to S.2 (12).
1797. Physical or mental disability as defined by Section 2
1900
(22) lays emphasis on the words "personal labour of
supervision". The dominating idea of anything done personally
or person is that the thing must be done by the person himself
and not by or through some one else. It is true that the idol is
capable of holding property in the same way as a natural person.
It has a juridical status with the power of suing and being sued.
Its interests are attended to by the person who has the deity in
his charge and who is in law its manager with all the powers
which would. In such circumstances, on analogy, be given to the
manager of the estate of an infant heir. But the requirement of
personal supervision under the third category of personal
cultivation provided for in the definition under S. 2 (12) does
not admit of an intermediary between the landlord and the
laborers, who can act as agent of landlord, it cannot be said that
it is possible in the case of another landlord merely because the
landlord in the latter case is a juristic person. The cultivation of
the land concerned must be by natural persons and not by legal
persons. The provisions of the Berar Regulation of Agricultural
Leases Act ( C.P. Act 2 of 1951) which is already repealed, are
of no help in deciding whether idol can cultivate personally
within meaning of Explanation 1 to Section 2 (12) of the
Bombay Act.
1798. In Official Trustee of West Bengal Vs. Commissioner
of Income-tax (supra) the Honble Apex Court referring
number of decisions reached to a conclusion that "a Hindu Deity
is a juristic person is a well-established proposition and has been
so for a long time.
1799. In Smt. Panna Banerjee and Ors. Vs. Kali Kinkor
Ganguli (supra) the Court held against sale of deity and paras
65 and 66 held:
1901
65. Moreover the alleged custom, if any, as to the sale of
these deities is wholly void. An idol can never be the
subject matter of commerce. The sale of an idol is
prohibited by Hindu Law, (See Khettar Chunder Ghose v.
Haridas Bundopadhyay, (1890) I.L.R.17 Cal. 557 at p.
559). A deity is not a chattel but a juridical person. No
custom can ever validate a sale of any deity. The legal
necessity of the deity cannot destroy the very existence of
the deity by selling it in the open market. The very thought
of it is opposed to the fundamental concept of the Hindu
Jurisprudence. It is against public policy. It is wholly
unreasonable. It is absolutely repugnant to the Hindu Law.
It is so repulsive to the judicial mind that every Court is
bound to strike it down in limine.
66. No one has ever heard that a deity can be served or
be sold by bits and bits. The deity is indivisible. It is the
supreme Being. The deity is not a property and no one
can be its owner not even its founder. The shebaits are
the managers of the deities though in reality they are its
glorified servants. No shebait can ever be the owner of
any deity. He is the custodian of the idol but this custody
does not nor can it ever confer any right on him to sell the
deity. (emphasis added)
1800. The Calcutta judgment went in appeal to the Apex
Court. Affirming the judgment of the High Court, in Kali
Kinkor Ganguly Vs. Panna Banerjee (supra), the Apex Court
in paras 24 and 25 said:
24. Dr. B.K. Mukherjea in his Tagore Law Lectures has
pointed out that the decision in Prasanna Kumaris case
(supra) was that the rule of necessity extended only to an
1902
alienation of the temporality of the idol and it does not and
cannot apply to alienation to the spiritual rights and duties.
Dr. Mukherjea illustrated this with reference to the
decision in Nagendra Nath v. Rabindra I.L.R. 53 Cal.
132=(AIR 1926 Cal 490) and an earlier decision in
Rajeswar v. Gopeswar (supra). The doctrine of alienation
of shebaitship on the ground of necessity or benefit to the
deity is said by Dr. Mukherjea to be of doubtful authority
and based upon a misconception of certain
pronouncements of the Judicial Committee.
25. In the present case, the appellant cannot invoke the
doctrine of transfer of shebaiti right for the benefit of the
deity because the transfer by Pramila Debi to Upendra
Nath Ganguli is illegal for the principal reason that
neither the temple nor the deities nor the shebaiti right
can be transferred by sale for pecuniary consideration.
The transfer by sale is void in its inception. (emphasis
added)
The Apex Court, however, expressed its disagreement
with the reasons contained in the concurring judgment of the
High Court.
1801. In Ram Jankijee Deities Vs. State of Bihar (supra)
the concept of idol or deity in Hindu Law was considered
and in paras 11, 13 and 14 the Court observed :
11. Hindu Law recognizes Hindu idol as a juridical
subject being capable in law of holding property by reason
of the Hindu Shastras following the status of a legal person
in the same way as that of a natural person. It is not a
particular image which is a juridical person but it is a
particular bent of mind which consecrate the image. How
1903
one sees the Deity : how one feels the deity and recognizes
the deity and then establishes the same in the temple upon
however performance of the consecration ceremony
13. Divergent are the views on the theme of images or
idols in Hindu Law. One school propagates God having
Swayambhu images or consecrated images: the other
school lays down God as omnipotent and omniscient and
the people only worship the eternal spirit of the deity and it
is only the manifestation or the presence of the deity by
reason of the charm of the mantras.
14. Images according to Hindu authorities, are of two
kinds: the first is known as Swayambhu or self-existent or
self-revealed, while the other is Pratisthita or established.
The Padma Purana says: "the image of Hari (God)
prepared of stone earth, wood, metal or the like and
established according to the rites laid down in the Vedas,
Smritis and Tantras is called the established
images.....where the self- possessed Vishnu has placed
himself on earth in stone or wood for the benefit of
mankind, that is styled the self-revealed." (B.K. Mukherjea
- Hindu Law of Religious and Charitable Trusts: 5th Edn.)
A Swayambhu or self-revealed image is a product of nature
and it is Anadi or without any beginning and the
worshippers simply discover its existence and such images
do not require consecration or Pratistha but a manmade
image requires consecration. This manmade image may be
painted on a wall or canvas. The Salgram Shila depicts
Narayana being the Lord of the Lords and represents
Vishnu Bhagwan. It is a Shila - the shalagram form
partaking the form of Lord of the Lords Narayana and
1904
Vishnu. (emphasis added)
1802. The concept of image and deity in Hindu Law has
been told in para 16 to 19 of Ram Jankijee Deities (supra):
16. The observations of the Division Bench has been in
our view true to the Shastras and we do lend our
concurrence to the same. If the people believe in the
temples religious efficacy no other requirement exists
as regards other areas and the learned Judge it seems has
completely overlooked this aspect of Hindu Shastras-In any
event, Hindus have in Shastras "Agni" Devta; "Vayu"
Devta-these deities are shapeless and formless but for
every ritual Hindus offer their oblations before the deity.
The Ahuti to the deity is the ultimate - the learned Single
Judge however was pleased not to put any reliance
thereon. It is not a particular image which is a juridical
person but it is a particular bent of mind which
consecrate the image.
17.One cardinal principle underlying idol worship ought to
be borne in mind:
"that whichever god the devotee might choose for
purposes of worship and whatever image he might
set up and consecrate with that object, the image
represents the Supreme God and none else. There is
no superiority or inferiority amongst the different
gods. Siva, Vishnu, Ganapati or Surya is extolled,
each in its turn as the creator, preserver and
supreme lord of the universe. The image simply gives
a name and form to the formless God and the
orthodox Hindu idea is that conception of form is
only for the benefit of the worshipper and nothing
1905
else." (B.K. Mukherjea - on Hindu Law of Religious
and Charitable Trusts-5th Edn.).
18. In this context reference may also be made to an earlier
decision of the Calcutta High Court in the case of Bhupati
Nath Smrititirtha v. Ram Lal Maitra, wherein Chatterjee, J.
(at page 167) observed:-
"A Hindu does not worship the "idol" or the
material body made of clay or gold or other
substance, as a mere glance at the mantras and
prayers will show. They worship the eternal spirit
of the deity or certain attributes of the same, in a
suggestive form, which is used for the convenience of
contemplation as a mere symbol or emblem. It is the
incantation of the mantras peculiar to a particular
deity that causes the manifestation or presence of the
deity or according to some, the gratification of the
deity." (emphasis added)
19. God is Omnipotent and Omniscient and its presence
is felt not by reason of a particular form or image but by
reason of the presence of the omnipotent: It is formless, it
is shapeless and it is for the benefit of the worshippers
that there is manifestation in images of the Supreme Being.
The Supreme Being has no attribute, which consists of
pure spirit and which is without a second being, i.e. God is
the only Being existing in reality, there is no other being in
real existence excepting Him - (see in this context Golap
Chandra Sarkar, Sastris Hindu Law: 8th Edn.). It is the
human concept of the Lord of the Lords - it is the human
vision of the Lord of the Lords: How one sees the deity:
how one feels the deity and recognises the deity and then
1906
establishes the same in the temple (sic depends) upon
however performance of the consecration ceremony. The
Shastras do provide as to how to consecrate and the usual
ceremonies of Sankalpa and Utsarga shall have to be
performed for proper and effective dedication of the
property to a deity and in order to be termed as a juristic
person. In the conception of Debutter, two essential ideas
are required to be performed: In the first place, the
property which is dedicated to the deity vests in an ideal
sense in the deity itself as a juristic person and in the
second place, the personality of the idol being linked up
with natural personality of the shebait, being the manager
or being the Dharam karta and who is entrusted with the
custody of the idol and who is responsible otherwise for
preservation of the property of the idol. The Deva Pratistha
Tatwa of Raghunandan and Matsya and Devi Puranas
though may not be uniform in their description as to how
Pratistha or consecration of image does take place but it is
customary that the image is first carried to the Snan
Mandap and thereafter the founder utters the Sankalpa
Mantra and upon completion thereof, the image is given
bath with Holy water, Ghee, Dahi, Honey and Rose water
and thereafter the oblation to the sacred fire by which the
Pran Pratistha takes place and the eternal spirit is infused
in that particular idol and the image is then taken to the
temple itself and the same is thereafter formally dedicated
to the deity. A simple piece of wood or stone may become
the image or idol and divinity is attributed to the same. As
noticed above, it is formless, shapeless but it is the human
concept of a particular divine existence which gives it the
1907
shape, the size and the colour. While it is true that the
learned Single Judge has quoted some eminent authors but
in our view the same does not however, lend any assistance
to the matter in issue and the Principles of Hindu Law
seems to have been totally misread by the learned Single
Judge. (emphasis added)
1803. In Shiromani Gurudwara Prabandhak Committee
Amritsar Vs. Shri Som Nath Dass (supra), the question before
the Hon'ble Apex Court was whether Guru Granth Sahib was a
juristic person or not. While dealing with the issue, the Court
observed that certain places of worship which were endowed
and recognized by public, like a Gurudwara, a church etc. can
also be juristic persons:
"Thus, it is well settled and confirmed by the authorities on
jurisprudence and Courts of various countries that for a
bigger thrust of socio-political-scientific development
evolution of a fictional personality to be a juristic person
became inevitable. This may be any entity, living,
inanimate, objects or things. It may be a religious
institution or any such useful unit which may impel the
Courts to recognise it. .... Similarly, where there is any
endowment for charitable purpose it can create institutions
like a church, hospital, gurudwara, etc. The entrustment of
an endowed fund for a purpose can only be used by the
person so entrusted for that purpose in as much as he
receives it for that purpose alone in trust. When the donor
endows for an idol or for a mosque or for any institution, it
necessitates the creation of a juristic person. The law also
circumscribes the rights of any person receiving such
entrustment to use it only for the purpose of such a juristic
1908
person. The endowment may be given for various purposes,
may be for a church, idol, gurdwara or such other things
that the human faculty may conceive of, out of faith and
conscience but it gains the status of juristic person when it
is recognised by the society as such.
1804. In the above case the Apex Court in para 30 and 35,
also held:
30. An idol is a juristic person because it is adored
after its consecration, in a temple. The offering are made
to an idol. The followers recognise an idol to be symbol for
God. Without the idol, the temple is only a building of
mortar, cement and bricks which has no sacredness or
sanctity for adoration. Once recognised as a juristic
person, the idol can hold property and gainfully enlarge
its coffers to maintain itself and use it for the benefit of its
followers. On the other hand in the case of mosque there
can be no idol or any images of worship, yet the mosque
itself is conferred with the same sacredness as temples with
idol, based on faith and belief of its followers. Thus the
case of a temple without idol may be only brick, mortar and
cement but not the mosque. Similar is the case with the
church. As we have said, each religion have different
nuclei, as per their faith and belief for treating any
entity as a unit. (Para 30)
In our view, no endowment or a juristic person depends
on the appointment of a manager. It may be proper or
advisable to appoint such a manager while making any
endowment but in its absence, it may be done either by the
trustees or courts in accordance with law. Mere absence of
a manager (sic. does not) negative the existence of a
1909
juristic person. As pointed out in Manohar Ganesh Vs.
Lakhmiram (approved in Jogendra Nath Naskars case)
referred to above, if no manager is appointed by the
founder, the ruler would give effect to the bounty. (Para 35)
1805. The Court in Shiromani Gurdwara Prabandhak
Committee, Amritsar Vs. Som Nath Dass & Ors. (supra) held
ultimately Guru Granth Sahib a legal person and rules that a
juristic person may be entity, living being, object or thing.
1806. The status of Hindu idol, therefore, as juridical person
cannot be disputed in view of the aforementioned authority/
pronouncement on this aspect. It is true that the initial verdict of
Privy Council in Vidya Varuthi Thirtha Vs. Baluswami Ayyar
(supra) and Pramatha Nath Mullick (supra) did attract some
otherwise opinion from certain jurist like Dr.S.C. Bagchi in his
Ashutosh Mookerjee Lectures, 1931 on Juristic Personality of
Hindu Deities, has illustrated in Lecture III, pp. 51-78 and Sir
Frederick Pollock in 41 Law Quarterly Review at page 421 but
it is too late in the day. Now to admit of any exception in the
matter in the case of an idol, therefore, answer is quite easy
though in the context of requirement of consecration, as argued
by the learned counsels for Muslim parties, it is yet to be seen as
to when and in what circumstances an idol can be said to be a
Deity having conferred with the juridical personality. It is no
doubt true that every idol is not treated to be a Deity. Some
Shastric procedure is provided for the said purpose but what is
that procedure, how it is to be observed and in what manner rule
travels in much wider plane.
1807. In Damodar Das Vs. Adhikari Lakhan Das (1909-10)
37 IA 147, debuttar property vested in an idol and managed by
Mahant. On his death, his two Chelas, represented by plaintiff
1910
and defendant settled a disputed right to succession by an
ikrarnama in 1874 under which each chela obtained possession
of the share of debottar properties allotted to him. The suit
brought in 1901 to eject the defendant from the property allotted
to him was held barred by limitation, treating his possession
adverse to the idol and also to the plaintiff. It is a short
judgment. The report of the judgment shows that it was not
contested by the respondents before the Judicial Committee. The
Privy Council though held that the property prior to the
execution of Ikrarnama vested in idol, the legal entity and
Mahant was only his representative and manager but then
proceeded to hold that on execution of Ikrarnama the possession
of junior Chela pursuant to the Ikrarnama became adverse to the
right of the idol and of the senior chela, representing that idol
and therefore, the suit was barred by limitation. (Subsequently
the Apex Court in Bishwanath Vs. Sri Thakur Radha Ballabhi
(supra) has held that an idol is a minor and that being so, it
could not have filed a suit by itself.) In a case where two Chelas
executed Ikrarnama themselves, it was unexpected that one of
them would have filed suit for restoration of the possession of
the property of the idol. Moreover, if both the chelas could have
been treated to be co-shebaits of the idol's property, the
possession of the property would be permissive and in case
there was any trespass, the property being that of minor, the
question of adverse possession would not come. The limitation
would not commence as held subsequently by the Apex Court. It
is well settled now that the judgments of the Privy Council are
binding on the High Courts only if there is no otherwise
judgments or authority of the Apex Court but where there is
authority of the Apex Court otherwise, it being the law of the
1911
land under the Constitution of India, the judgment of the Privy
Council has not a binding precedent.
1808. A Full Bench of Bombay High Court in State of
Bombay Vs. Chhaganlal Gangaram Lavar, AIR 1955 Bom. 1
considered the question of binding nature of decisions of the
Privy Council after independence and enforcement of
Constitution on 26.01.1950 and held:
So long as the Supreme Court does not take a
different view from the view taken by the Privy Council, the
decisions of the Privy Council are still binding upon us,
and when we say that the decisions of the Privy Council
are binding upon us, what is binding is not merely the point
actually decided but an opinion expressed by the Privy
Council, which opinion is expressed after careful
consideration of all the arguments and which is
deliberately and advisedly given.
1809. This decision has been referred to with approval by the
Apex Court in Pandurang Kalu Patil and another Vs. State of
Maharashtra, AIR 2002 SC 733. It is thus clear that it is only
an opinion expressed by the Privy Council after careful
consideration of all the arguments and which is deliberately and
advisedly given which is binding and not merely point actually
decided. We, however, propose to consider the above judgment
in Damodar Das Vs. Adhikari Lakhan Das (supra) in detail to
show as to what actually was held therein while discussing issue
no. 13 pertaining to limitation in Suit-5 and leave this as it is at
this stage.
1810. A Full Bench in Jodhi Rai Vs. Basdeo Prasad, 8 ALJ
817=(1911) ILR 33 Allahabad 735 held that a suit on behalf of
an idol must be carried on by some person who represents the
1912
idol usually a manager of the temple, in which the idol is
installed.
1811. In Darshan Lal and others Vs. Shibji Maharaj
Birajman, AIR 1923 All. 120, the question arose as to whether
Swami Lachhmi Nand, priest of the temple was entitled to file a
suit as a next friend of the idol. He said that he looks after the
management of the temple which the Court understood as if he
conducts the worshipped and dispensed such charities, if any,
as are customary at the said shrine and held that Sri Lachhmi
Nand was entitled to bring suit as a next friend of the idol. It
said:
" The fact that he is not the manager or trustee under the
particular deed of endowment which he desires to set up
for the benefit of the aforesaid idol would not prevent him
from having a right to act on behalf of the idol in this
litigation, if he occupied a position of manager or trustee
qua the performance of these ceremonies of worship or
charities for the benefit of which the trust monies were
directed to be applied."
1812. However, the Court further held that a person claiming
a mere benevolent interest in the fortunes of an idol cannot be
permitted to sue in the name and as next friend of the idol.
1813. In Sheo Ramji Vs. Ridhnath Mahadeo Ji AIR 1923
All. 160 the Court permitted a suit brought by the idol through
Sri Vivekanand as next friend to recover possession of the
property said to be wrongly sold by a relative of one Ajudhia
Puri who was the original manager of the temple property. The
Court found that Ajudhia Puri was the original manager of the
temple property and had died. His Chela and successor was a
minor. Amongst others one Ram Kishna Das was appointed to
1913
supervise the management who in his turn appointed one Sri
Vivekanand as guardian of the property of the idol on behalf of
the minor. Some property of the idol was sold by a relative of
Ajudhia Puri and to recover its possession Vivekanand filed the
suit. The Court held that Vivekanand has sufficient interest in
the subject magtter of the suit to bring the same in the name and
on behalf of the idol.
1814. In Pramatha Nath Mullick (surpa), on page 143, held
that an idol is a juristic person and the Shebait is its
representative. It is not movable property and cannot be willed
away by the Shebait and observed:
There may be, in the nature of things, difficulties in
adjusting the legal status of the idol to the circumstances
and requirements of its protection and location and there
may no doubt also be a variety of other contracts of such a
persona with mundane ideas. But an argument which
would reduce a family idol to the position of a mere
moveable chattel is one to which the Board can give no
support. They think that such an argument is neither in
accord with a true conception of the authorities, nor
with principle. The Board does not find itself at variance
with the views upon this subject taken in the Appellate
Court or with the analysis of the authorities there
contained.
1815. In Pramatha Nath Mullick vs. Pradyumna Kumar
Mullick (supra) the Could also said that an idol may appear by
its interested next friend. The Judicial Committee observed:
One of the questions emerging at this point, is as to
the nature of such an idol and the services due thereto. A
Hindu idol is, according to long established authority,
1914
founded upon the religious customs of the Hindus, and the
recognition thereof by Courts of Law, a juristic entity. It
has a juridical status with the power of suing and being
sued. Its into rests are attended to by the person who has
the deity in his charge and who is in law its manager with
all the powers which would, in such circumstances, on
analogy, be given to the manager of the estate of an infant
heir. It is unnecessary to quote the authorities; for this
doctrine, thus simply stated, is firmly established. (page
140)
The person founding a deity and becoming
responsible for those duties is de facto and in common
parlance called shebait. This responsibility is, of course,
maintained by a pious Hindu, either by the personal
performance of the religious rites oras in the case of
Sudras, to which caste the parties belongedby the
employment of a Brahmin priest to do so on his behalf. Or
the founder, any time before his death or his successor
likewise may confer the office of shebait on another.
(page 141)
It must be remembered in regard to this branch of
the law that the duties of piety from the time of the
consecration of the idol are duties to something existing
which, though symbolising the Divinity, has in the eye of
the law a status as a separate persona. The position and
rights of the deity must in order to work this out both in
regard to its preservation, its maintenance and the services
to be performed, be in the charge of a human being. (page
141)
9. A fortiori it is open to an idol acting through his
1915
guardian the Shebait to conduct its own worship in its own
way at its own place always on the assumption that the acts
of the Shebait expressing its will are not inconsistent with
the reverent and proper conduct of its worship by those
members of the family who render service and pay homage
to it. (page 145)
1816. It shows that a Hindu deity though treated as an
individual but not an ordinary individual in all sense in all
respects. A Deity is not only an individual but individual plus
something else.
1817. In Administrator General of Bengal Vs. Balkissen,
ILR 51 Cal 953=AIR 1925 Cal 140 the Court held that after the
appointment of Shebait the right to sue for possession of the
property with which the idol is endowed, belongs to the Shebait
and not to the idol. With great respect, we find that the
observation that the right to sue belongs to Shebait and not the
idol has to be read in the context of the dispute before the Court.
It cannot be read that even though the property is debutter
property, that belong to an idol yet idol itself has no right to sue
or being sued but this would belong to Shebait. Such an
understanding and interpretation of the judgement would reduce
the status of idol qua Shebait who otherwise is not held to be the
owner of the debutter property since idol being a juristic person
is the owner. As usually happen, since a juristic person cannot
act on its own, for the purpose of procedure the action on behalf
of juristic person is initiated and taken by its manager, and, in
the case of an idol by the Shebait, if any, otherwise the next
friend but that does not mean that the idol itself is denuded of its
right to protect its property by filing a suit at all.
1818. The case of Gopalji Maharaj Vs. Krishna Sunder
1916
Nath Kaviraj AIR 1929 All. 887 was decided by an Hon'ble
Single Judge of this Court in the peculiar facts of that case. A
suit was filed by Sri Swami Keshwanandji in the name of Sri
Gopalji Maharaj, an idol of a Hindu temple claiming himself as
a Manager of the shrine. As a matter of fact, the Court found
that the shrine was founded by one Jagdish Pandit and
successors to him in his family were Madho Sudan Das
Goswami, Narhari Das Goswami, Naudip Chand Goswami and
then Brij Gopal Goswami. Shebaitship or Mutwalliship vests in
the family of Jagdish Pandit the founder and Sri Brij Gopal
Goswami, the sole surviving member of the founder's family
and Swami Keshwanand had no right in the matter. He claimed
himself to be the manager of the plaintiff idol through one Mt.
Basant Kumari and the Court found that she had no right to
appoint Swami Keshwanand as manager of the shrine. In these
circumstances, the question arose whether the suit was properly
framed having been filed on behalf of the plaintiff idol by a
person who was neither Mutwalli nor Shebait of the temple nor
was appointed Shebait or manager of the temple by or on behalf
of Brij Gopal Goswami who was the sole surviving member of
the founder's family. This question was answered against Swami
Keshwanand and the suit was held not maintainable. This Court
recorded a finding of fact that it was not shown what interest
Swami Keshwanand had in the idol or in the property belonging
to the idol.
1819. In Manohar Mukherji Vs. Bhupendra Nath AIR
1932 Cal 791 a Full Bench observed:
"But this analogy of a human transfer need not be
carried too far, for the deity is not in need of property, nor
does it hold any; what is given to the deity becomes
1917
available to all.
The deity is the recipient of the gift only in an ideal
sense; the dedicated property belongs to the deity in a
similar sense; in reality the property dedicated is in the
nature of an ownerless thing. In ancient times, except in
cases of property dedicated to a brotherhood of sanyasis,
all endowments ordinarily were administered by the
founder himself and after him his heirs. The idea of
appointing a shebait is of more modern growth. When a
Hindu creats an endowment, its management is primarily
in him and his heirs,and unless he appoints a shebait he
himself fills that office and in him rests that limited
ownership, - notwithstanding that, on the one hand, he is
the donor and, on the other, the recipient on behalf of the
deity, the juridical person, - which has to be exercised until
the property offered to the deity has been suitably disposed
of. The true principle of Hindu Law is what is mentioned in
the Chhandogya Upanishada, namely, that the offerings to
the gods are offerings for the benefit of all beings (Chap.
5, p. 24 K. 2-5). And Raghunandan has quoted a text of
Matsya Sukta which says:
Having made offerings to a God, the sacrificial fee
also should be given to the God. The whole of that should
be given to a Brahmin otherwise it is fruitless."
1820. In Deoki Nandan Vs. Murlidhar (supra) the Apex
Court considered the question as to who are beneficiaries when
the temple is built and idol installed therein and the property
endowed therefor. In paragraph no.6 of the judgment the Court
held that under the Hindu law an idol is a juristic person capable
of holding property and the property endowed for the institution
1918
vests in it but it is only in an ideal sense that the idol is the
owner of the endowed property and it cannot itself make use of
them; it cannot enjoy them or dispose of them, or even protect
them. In short, the idol can have no beneficial interest in the
endowment. In para 7 the Court held that the true beneficiaries
of religious endowments are not the idols but the worshippers,
and that the purpose of the endowment is the maintenance of
that worship for the benefit of the worshippers. It held:
(7) When once it is understood that the true
beneficiaries of religious endowments are not the idols but
the worshipers, and that the purpose of the endowment is
the maintenance of that worship for the benefit of the
worshipers, the question whether an endowment is private
or public presents no difficulty. The cardinal point to be
decided is whether it was the intention of the founder that
specified individuals are to have the right of worship at the
shrine, or the general public or any specified portion
thereof. In accordance with this theory, it has been held
that when property is dedicated for the worship of a family
idol, it is a private and not a public endowment, as the
persons who are entitled to worship at the shrine of the
deity can only be the members of the family, and that is an
ascertained group of individuals. But where the
beneficiaries are not members of a family or a specified
individual, then the endowment can only be regarded as
public, intended to benefit the general body of
worshippers.
1821. In Angurbala Mullick v. Debabrata Mullick (supra),
while examining the nature of Sevayatship as a property,
Hon'ble Supreme Court distinguished between the English trust
1919
and Hindu religious endowment as:
"It is settled by the pronouncement of the Judicial
Committee in Vidya Varuti v. Balusami, 48 I.A. 302 that the
relation of a Shebait in regard to debutter property is not
that of a trustee to trust property under the English law. In
English law the legal estate in the trust property vests in
the trustee who holds it for the benefit of cestui que trust. In
a Hindu religious endowment on the other hand the entire
ownership of the dedicated property is transferred to the
deity or the institution itself as a juristic person and the
Shebait or Mahant is a mere manager.
1822. Distinction between right of the idol to file a suit itself
or a suit filed by Shebait for the benefit of an idol has been
noticed by a Division Bench of Bombay High Court in Shree
Mahadoba Devasthan Vs. Mahadba Romaji Bidkar & Others
AIR 1953 Bombay 38. There Jagadindra Nath Vs. Hemanta
Kumar Devi (supra) was relied on to argue that the right to sue
vested in the Shebait and not in the idol. This aspect has been
dealt with in a lucid manner in paras 2 and 3 of the judgment,
which says:
"2. ...The contention, however, which was urged by the
defendants and which found favour with the learned trial
Judge was that even though the image of Shree Mahadoba
was a juridical person the whole management of the
properties belonging to the image could be and was
carried on by its shebait or its vahivatdar and the right to
sue for the protection of the properties belonging to the
image of Shree Mahadoba was vested in the shebait and
not in the image or the idol. Reliance was placed in support
of this contention on the observations of their Lordships of
1920
the Privy Council in Jagadindra Nath v. Hemanta
Kumari Debi, 32 cal. 129 P.C. where Sir Arthur Wilson
observed (p. 141) :
"But assuming the religions dedications to have been of
the strictest character, it still remains that the possession
and management of the dedicated property belongs to
the shebait. And this carries with it the right to bring
whatever suits are necessary for the protection of the
property. Every such right of suit is vested in the shebait,
not in the idol, and in the present case the right to sue
accrued to the plaintiff when he was under age. The case
therefore falls within the clear language of S.7,
Limitation Act..."
These observations were particularly relied on for the
purpose of shewing that the suit for setting aside the
alienations complained of could not be filed in the name of
Shree Mahadoba Devasthhan at all but could only be filed
in the name of the shebait for the time being who was
Waman Chimnaji Waghule, original defendant 3. These
observations of their Lordships of the Privy Council were,
however, made in a suit which was a suit for recovering
possession of the property belonging to the idol against the
persons who had dispossessed the idol of the same. The
shebait of the idol was then a minor. The idol was no doubt
a juridical person and capable of suing or being sued, but
even there the suit could be brought in the name of the idol
by the shebait and the shebait was a minor with the result
that their Lordships of the Privy Council held that the right
of possession and management of the dedicated property
having belonged to the shebait whatever suits were
1921
necessary for the protection of the property could also be
brought by the shebait. There is no doubt that the words
"not in the idol" are a part of the sentence which was
used by their Lordships: "Every such right is vested in
the shebait, not in the idol." Their Lordships of the Privy
Council were, however, concerned with a case where
even if the idol being a juridical person capable of
holding the property could have filed the suit for
recovering possession of the property of which it was
dispossessed, that suit could only have been filed though
in the name of the idol by its shebait and the shebait
being a minor, they had got to consider what the position
would be if the shebait was the person who could and
should have filed the suit in the name of the idol for
recovering possession of the property. We are of the
opinion that their Lordships had not their attention
focussed on this aspect of the question, namely, whether a
suit could have been filed in the name of the idol by the
shebait apart from the shebait vindicating his right of
possession and management of the dedicated property and
filing a suit for the protection of the same. This dictum of
their Lordships of the Privy Council was considered by a
Division Bench of the Calcutta High Court in the case of
Jyoti Prosad v. Jahor Lal, AIR 1945 Cal 268. In the
course of the judgment Biswas J. observed as follows (p.
277) :
"On the first point, the appellants' sheet anchor is the
dictum of Sir Arthur Wilson in the Privy Council case in
Jagadindra Nath Soy v. Hemanta Kumari Debi, 81
Ind. App. 203, that the right of suit is vested in the
1922
shebait, and not in the idol, but as has been explained in
various decisions this does not and cannot mean that a
Hindu idol is incapable of suing. The power of suing (as
also being sued) undoubtedly resides in the idol, though
ex necessitate rei the power must be exercised by and
through a sentient being representing the idol. As was
pointed out by Pal J. In. Tarit Bhusan v. Sri Iswaar
Sridhar Salagram Shila Thakur, I.L.R. (1941) 2 Cal. 477
at page 531 where this question is discussed, the suit in
Jagadindra Nath Roy v. Hemanta Kumari Debi, 31
Ind. App. 203 (P.C.), was not by the idol represented
by its shebait but by the shebait himself as such to
enforce the proprietary right of the idol in certain
properties. The High Court had dismissed the suit as
barred by limitation on the ground that as the interest
was admitted to be in the idol, there was nothing to
prevent a suit being brought on behalf of the idol by the
plaintiff's mother during his minority, but the Judicial
Committee reversed the decision, holding that as the
possession and management of the dedicated property
belonged to the shebait and this carried with it the
right to bring whatever suits were necessary for the
protection of the property, the right to sue accrued to
the plaintiff, and as he was a minor at the time, he
could bring the suit within three years after he
attained majority under Section 7 of Act 15 of 1877
(corresponding to S. 6 of the present Limitation Act). It
is in this connection that Sir Arthur Wilson made the
observation on which the appellants rely."
The learned Judge then proceeded to quote the
1923
observations of Lord Shaw in Pramatha Nath Mullick v.
Pradhyumna Kumar Mullick, 52 Ind. App. 245 where
their Lordships of the Privy Council dwelling on the nature
of a Hindu idol expressly recognised it as a juristic entity
and observed that it has a juridical status with the power of
suing and being sued; and also the observations of the
Judicial Committee in Radha Benode Mandal v. Gopal
Jiu Thakur, 54 Ind. App. 238 P.C., where a clear
distinction was drawn between a suit in which the idol itself
was the plaintiff and the suit in which the plaintiffs wore
shebaits of the idol. The learned Judge then observed (p.
277):
"It is quite true that a Hindu idol is a juridical person
capable of holding legal rights only in an ideal sense,
and it may also be, as was indicated by Sir George
Rankin in the Privy Council decision in Masjid Shahid
Ganj v. Shiromani Gurudwira Parbandhak Committee,
Amritsar, 67 Ind. App. 251 at p.264 (P.C.), that the
procedure of our Courts only allows for a suit in the
name of an idol, but nevertheless the position remains
incontestable that a Hindu idol may be a competent
plaintiff in a suit in respect of property held or
claimed by it, and that this is a right quite distinct
from that which belongs to its shebait or shebaits to
sue on its behalf."
(3) Normally speaking, a manager or an agent would not
be competent to file a suit in his own name in regard to the
affairs of his principal and such a suit even if brought by
the manager would have to be in the name of the principal.
The principal in the case of an image or idol is not an
1924
entity capable of acting on its own, with the result that it
has of necessity got to act through its manager or an
accredited agent, who under the circumstances is the only
person capable of performing these functions in the name
of the idol, The shebait is in possession and management of
the property belonging to the image or idol, and laving
such possession and management vested in him, it is only
an extension of the principle of responsibility from the
image or idol to the manager, or to use the other words,
from the principal to the agent to vest the right of
protection of the property which is incidental to the right of
possession and management thereof by way of filing a suit
in connection with the same, in the shebait. The extension
of the right in the shebait however does not mean that the
right which the image or the idol as a juridical person has
by virtue of its holding the property to file a suit in regard
thereto is by any process eliminated. Both these rights can
exist simultaneously, so that if the suit is filed in the name
of the image or idol, the image or the idol would be a
proper plaintiff, though, as observed before, of necessity it
would have to be represented in the suit by its manager or
shebait. If the manager or the shebait on the other hand
chooses in vindication of his right to sue for the protection
of the properties to file a suit in his own name, he may just
as well do so. But that would be no bar to the right of the
image or the idol to file such a suit if it had chosen to do
so. Of course these rights either by the image or the idol or
by the manager or by the shebait could be exercised only
by the one or the other and not by both; so that if the cause
of action was prosecuted to judgment, it would be merged
1925
in a decree properly passed in favour of the plaintiff and
the defendant could not be proceeded against any more in
respect of that very cause of action." (emphasis supplied)
1823. In Sri Iswar Radha Kanta Jew Thakur and others
V. Gopinath Das and others AIR 1960 Cal. 741 Hon'ble P.C.
Mallick, J. in para 18 said:
" .....................According to Hindu Law, sebait
represents the deity and he alone is competent to institute
a suit in the name of the deity. In exceptional
circumstances, however, where the sebait does not, or by
his own act deprives himself of the power of representing
the deity, a third party is competent to institute a suit in the
name of the deity to protect the debutter property. Dr. Das
contends that such a party must be a member of the family
or a worshipper and that a total stranger, in law, is not
competent to institute a suit in the name of the deity. I do
not, however, consider this to be the correct view in law. A
worshipper or a member of the family has no doubt his own
right to institute a suit to protect his right to worship and
for that purpose to protect the debutter property. That is,
however, a suit by the member of the family or worshipper
in his personal capacity and not a suit by the deity. The
deity has also a right of its own to have a suit instituted
by a next friend. As I understand the law, the person
entitled to act as next friend is not limited to the
members of the family or worshipper. Anybody can act
as such next friend, but the law requires that anybody
other than sebait instituting a suit in the name of the deity
must be appointed as such by an order of the Court."
(Para 18)
1926
1824. In Bishwanath & others Vs. Sri Thakur Radha
Ballabhi (supra) the Apex Court upheld the right of a deity to
file a suit for declaration of its title and possession thereof. It
also held that an idol of Hindu temple is a juridical person and
when Shebait acts adversely to its interest, the idol being in the
position of a minor, any person interested in the worship of idol
can represent as its next friend to file a suit. The Court said :
"(9) Three legal concepts are well settled: (1) An idol of a
Hindu temple is a juridical person; (2) when there is a
Shebait, ordinarily no person other than Shebait can
represent the idol; and (3) worshippers of an idol are its
beneficiaries, though only in a spiritual sense....."
"An idol is in the position of a minor and when the
person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be
clothed with an ad hoc power of representation to protect
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery,
in most of the cases it will be an indirect approval of the
dereliction of the Shebait's duty, for more often than not he
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be
open to the transfer in a suit.......That is why decisions have
permitted a worshipper in such circumstances to represent
the idol and to recover the property for the idol." (Para 10)
1825. A Single Judge in Kishore Joo Vs. Guman Behari Joo
Deo, AIR 1978 All.-1 also followed the ratio and in para 9 of the
judgment observed:
"It is settled law that normally it is the Shebait alone who
1927
can file a suit on behalf of the Idol, but it is also equally
well settled that in exceptional circumstances persons other
than a Shebait can institute a suit on behalf of an Idol."
1826. Now we come to some precedents about temple. In
N.C. Ramanatha Iyer Vs. Board of Commissioners for Hindu
Religious Endowments, Madras AIR 1954 Madras 492 the
Court observed:
"...The essential requirements of a temple are that it should
be a place dedicated to, or founded for, the benefit of the
Hindu community, or a section of it, and should be used as
a place of worship. ..."
1827. The Apex Court in Poohari Fakir Sadavarthy Vs.
Commissioner (supra) has laid down the requisite conditions
for a religious institution to be a temple and observed as
under:
"A religious institution will be a temple if two conditions
are satisfied. One is that it is a place of public religious
worship and the other is that it is dedicated to or is for
the benefit of, or is used as of right by the Hindu
Community, or any section thereof, as a place of
religious worship."
To constitute a temple it is enough if it is a place of
public religious worship and if the people believe in its
religious efficacy irrespective of the fact whether there is
an idol or a structure or other paraphernalia. It is
enough if the devotees or the pilgrims feel that there is
some super human power which they should worship and
invoke its blessings." (Para 15) (emphasis added)
1828. In the above case the Court also considered Clause 12,
Section 9 of Madras Hindu Religious Endowments Act, 1927
1928
which defines 'temple' and held:
The institution in suit will be a temple if two conditions
are satisfied. One is that is a place of public religious
worship and the other is that it is dedicated to or is for the
benefit of, or is used as of right by, the Hindu community,
or any section thereof, as a place of religious worship. We
are of opinion that the oral and documentary evidence fully
establish the appellants case that it is not a temple as
defined in the Act. (Para 8)
1829. In Tilkayat Shri Govindlalji Maharaj Vs. State of
Rajasthan AIR 1963 SC 1638 the question when the existence
of a public temple can be conceived, was considered and in para
23, it says:
"23. . . . Where evidence in regard to the foundation of the
temple is not clearly available, sometimes, judicial
decisions rely on certain other facts which are treated as
relevant. Is the temple built in such an imposing manner
that it may prima facie appear to be a public temple? The
appearance of the temple of course cannot be a decisive
factor; at best it may be a relevant factor. Are the members
of the public entitled to an entry in the temple? Are they
entitled to take part in offering service and taking Darshan
in the temple,? Are the members of the public entitled to the
take part in the festivals and ceremonies arranged in the
temple? Are their offerings accepted as a matter of right?
The participation of the member of the public in the
Darshan in the temple and in the daily acts of worship or in
the celebrations of festival occasions. may be a very
important factor to consider in determining, the character
of the temple.
1929
1830. Various authorities have held that public institutions
can be treated as juristic person. Relationship between a temple
and an institution was discussed in Commissioner for Hindu
Religious and Charitable Endowments, Mysore v.
Ratnavarma Heggade (supra), wherein the Hon'ble Supreme
Court was to decide whether the temple in dispute was a
"temple" as well as a "religious endowment" under the T.N.
Hindu Religious Endowments Act, 1927. While deciding the
matter, Hon'ble Court observed in paragraph 45:
"If the temple as a place of worship, is an integral part of
an Institution, so that it is not separable as an institution,
in itself ... In such a case the "institution" is not the temple,
although a temple can, by itself, be an institution."
1831. Construing the definition of temple under Section
6(20) of Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959, Hon'ble Mohan, J. (as his Lordship
then was) in T.V. Durairajulu Naidu Vs. Commissioner,
(supra), in para 18 of the judgment, observed:
"18. . . . If a sense of reverence is created by the place in
the belief that God resides there or if an edifice devoted to
divine worship, that would be enough to attract the
definition of Temple under S. 6(20) of the Act. In other
words, it is a sense of reverence that is very important.
........Nowhere the requirements as are ordinarily
expected of a temple are insisted upon. It is a faith that it
is the abode of God that matters. It is that compelling
faith, that by offering prayers, one will be the object of
bounty, that is important. (emphasis added)
1832. In Bala Shankar Maha Shankar Bhattjee and others
Vs. Charity Commissioner 1995 Suppl. (1) SCC 485 while
1930
laying down certain principles of law, after considering the
earlier decision in respect to private and public temple, it was
held as under:
18. From the aforesaid discussion the following
principles of law would emerge.
19. A place in order to be a temple, must be a place
for public religious worship used as such place and must
be either dedicated to the Community at large or any
section thereof as a place of public religious worship. The
distinction between a private temple and public temple is
now well settled. In the case of former the beneficiaries are
specific individuals; in the latter they are indeterminate or
fluctuating general public or a class thereof. Burden of
proof would mean that a party has to prove an allegation
before he is entitled to a judgment in his favour. The one or
the other of the contending parties has to introduce
evidence on a contested issue. The question of onus is
material only where the party on which it is placed would
eventually lose if he failed to discharge the same. Where,
however, parties joined the issue, led evidence, such
evidence can be weighed in order to determine the issue.
The question of burden becomes academic.
20. An idol is a jurisitic person capable of holding
property. The property endowed to it vests in it but the
idol has no beneficial interest in the endowment. The
beneficiaries are the worshippers. Dedication may be
made orally or can be inferred from the conduct or from a
given set of facts and circumstances. There need not be a
document to evidence dedication to the public. The
consciousness of the manager of the temple or the devotees
1931
as to the public character of the temple; gift of properties
by the public or grant by the ruler or Govt.; and long use
by the public as of right to worship in the temple are
relevant facts drawing a presumption strongly in favour of
the view that the temple is a public temple. The true
character of the temple may be decided by taking into
consideration diverse circumstances. Though the
management of a temple by the members of the family for a
long time, is a factor in favour of the view that the temple is
a private temple it is not conclusive. It requires to be
considered in the light of other facts or circumstances.
Internal management of the temple is a mode of orderly
discipline or the devotees are allowed to enter into the
temple to worship at particular time or after some duration
or after the head man leaves, the temple are not conclusive.
The nature of the temple and its location are also relevant
facts. The right of the public to worship in the temple is a
matter of inference.
21. Dedication to the public may be proved by
evidence or by circumstances obtainable in given facts and
circumstances. In given set of facts, it is not possible to
prove actual dedication which may be inferred on the
proved facts that place of public religious worship has
been used as of right by the general public or a section
thereof as such place without let or hindrance. In a
public debutter or endowment, the dedication is for the use
or benefit of the public. But in a private endowment when
property is set apart for the worship of the family idol, the
public are not interested. The mere fact that the
management has been in the hands of the members of the
1932
family itself is not a circumstance to a conclude that the
temple is a private trust. In a given case management by
the members of the family may give rise to an inference
that the temple is impressed with the character of a private
temple and assumes importance in the absence of an
express dedication through a document. As stated earlier,
consciousness of the manager or the devotees in the user by
the public must be as of right. If the general public have
always made use of the temple for the public worship
and devotion in the same way as they do in other
temples, it is a strong circumstance in favour of the
conclusiveness of public temple. The origin of the temple,
when lost in antiquity it is difficult to prove dedication to
public worship. It must be inferred only from the proved
facts and circumstances of a given case. No set of general
principles could be laid.
1833. In A.S. Narayana (supra), dealing this aspect the
Court has observed:
101. The temples are taken to be sanctified space
where entire unfragmented Space and Time, in other
words, the entire 'Universe' are deposited and the image of
the Deity is worshipped symbolising the Supreme.
Although the Deities appear to be many, each and every
Deity is again viewed as the Supreme One and, therefore,
the Supreme Reality is one and non-dual. The multiplicity
of the Gods has been effected in order to offer the paths
which are required according to the entitlement and
evolution of each and everyone.
108. Temple has become the most important
centre of activities-religious, cultural and social-among the
1933
people, in particular rural India. Temple is conceived in
the likeness of human body. Parts of the temple are named
accordingly, by which the organic unity of the temple is
emphasised. Obviously, therefore, religious people endow
their property for upkeep of temples or propagation of
religion. Majority people in India are dedicated to Vishnu,
Shiva, Shakti, Ganpathi and Hanuman of Hindu Gods. The
cardinal principle underlying idol worship is for one of
four modes for self-realisation. Daily routine life in
performing rituals to Deity will be gone through with
minute accuracy of Abishek (bathing), changing of clothes,
offerings of food and the retirement (rest). Religion,
therefore, has occupied a significant place and role in the
public life in our country. Hindus, therefore, believe that
religion is an essential and powerful factor in raising
humanity to higher level of thought and being. The priest
(archaka or by whatever name called) would conduct
rituals to the Deity as per prescribed Agamas, forms,
practices and sampradayams.
1834. In Pritam Dass Mahant Vs. Shiromani Gurdwara
Prabandhak Committee, AIR 1984 SC 858 the distinction
between temple of Hindus and that of Sikhs came to be
considered and the Apex Court held that temples are fouLand
almost in every religion but there are some differences between
the sikh temples and those of other religions. The Apex Court
thereafter pin pointed the distinctive features of Sikh Gurdwaras
qua Hindu temples and held:
(1) Sikh temples are not the place of idol worship as the
Hindu temples are. There is no place for idol worship in a
Gurdwara. The central object of worship in a Gurdwara is
1934
Sri Guru Granth Sahib, the holy book. The pattern of
worship consists of two main items: reading of the holy
hymns followed by their explanation by some learned man,
not necessarily a particular Granthi and then singing of
some passages from the Holy Granth. The former is called
Katha and the second is called Kirtan. A Sikh thus
worships the Holy Words that are written in the Granth
Sahib, the Words or Shabada about the Eternal Truth of
God. No idol or painting of any Guru can be worshipped.
(2) Sikh worship in the Gurdwara is a congregational
worship, whereas Hindu temples are meant for individual
worship. A Sikh does the individual worship at home when
he recites Gurbani daily. Some scriptures meant for this
purpose are Japji, Jaap, Rahras, Kirtan Sohila. Sangat is
the collective body of Sikhs who meet very day in the
Gurdwara.
1835. The above dictum was followed in Shiromani
Gurdwara Parbandhak Committee Vs. Mahant Harnam
Singh and others (supra) (para 13 of the judgement) and after
referring to the above mentioned observations in para 14 the
Court said:
14. The sine qua non for an institution, to be treated
as Sikh Gurdwara, as observed in the said case, is that
there should be established Guru Granth Sahib, and the
worship of the same by congregation, and a Nishan Sahib.
There may be other rooms of the institution made for other
purposes but the crucial test is the existence of Guru
Granth Sahib and the worshippers thereof by the
congregation and Nishan Sahib.
1836. In Mukundji Mahraj Vs. Persotam Lalji Mahraj
1935
(supra), holding that alienation of temple is not permissible, a
Division Bench of High Court held in para 28 as under:
28. Whatever may be said about a permanent alienation
of endowed property other than a temple, in the very nature
of things, having regard to the duties of a Manager or a
Shebhait towards the idol or institution, there can be no
necessity of alienating the temple or any portion of it in
which the idol is installed. The maintenance of the entire
building is the prime concern of the Manager or the
Shebait.
The temple has a special sanctity distinct from
other endowed property. To alienate the temple itself is to
cut at the root of the very existence of the idol in the
habitation intended by the founder Hindu Sentiment views
the alienation of a temple as a sacrilege. Not until the idol
has been removed from the temple in accordance with
shastric rites and has assumed a new habitation and the
temple abandoned as a place of worship may the temple be
alienated or sold in execution of a decree.
1837. On pointing out to Sri Ravi Shankar that in some of the
judgment like that of Madras High Court, the observations are
with reference to the particular statute and the definition of
temple therein, Sri Prasad replied that the definition of temple in
the above Acts has to be read in the light of Shastric Laws of
Hindus and if any other view is taken or the definition of temple
is taken otherwise then it would be illegal, ultra vires and
violative of Article 25 of the Constitution which confer
fundamental right of religious customs etc. according to the
religious scriptures.
1838. In Kasi Mangalath Illath Vishnu Nambudiri (supra)
1936
the Court held that a public temple is res extra commercium
and says :
.....Being a public temple and therefore res extra
commercium it is not open to a private individual to
acquire by prescription any private ownership in regard
thereto. The character of the temple as a public temple
cannot be taken away by any assertion of private
right ......
1839. In Hari Raghunath Patvardhan Vs. Antaji Bhikaji
Patvardhan & Others 1919 (XLIV) ILR Bombay 466 a
dispute arose about removal of image from its position and to
install it in a new building. The Court said :
Taking the most liberal view of the powers of the
manager, I do not think that as the manager of a public
temple he can do what he claims the power to do, viz., to
remove the image from its present position and to instal it
in the new building. The image is consecrated in its present
position for a number of years and there is the existing
temple. To remove the image from that temple and to
instal it in another building would be practically putting
up a new temple in place of the existing temple.
Whatever may be the occasions on which the installation of
a new image as a substitute for the old may be allowable
according to the Hindu law, it is not shown on behalf of the
defendant that the ruinous condition of the existing
building is a ground for practically removing the image
from its present place to a new place permanently. We are
not concerned in this suit with the question of the
temporary removal which may be necessary when the
existing building is repaired. The defendant claims the
1937
right to instal it in the new building permanently, and I do
not think that as a manager he could do so, particularly
when he is not supported by all the worshippers of the
temple in taking that step"
1840. In Kalikanta Chatterjee & Ors. Vs. Surendra Nath
Chakravarty & Ors. AIR 1925 Calcutta 648 an interesting
question came to be considered. There was an old temple having
the image of deity Tara. The image was broken about 40 years
ago by some ruffians, fragments of which were subsequently
recovered from a tank. The temple also fell down at that time.
Thereafter the worship of the deity was carried out with a ghot
(earthen pot) on an an adjoining piece of land. With the passage
of time, the shrine lost its popularity. The defendant no.2
thereafter with an idea of restoring the glory of shrine, made
efforts, as a result whereof a new temple was erected, and a new
image was brought and installed therein. A question was raised
whether there is restoration of old image by substituting a new
one. The Calcutta High Court referred to a passage in a Nirnaya
Sindhu and also said:
"With regard to the second contention viz., that there could
be no restoration of the old image in the present case
according to the Shastras, it is urged that the image is
admitted in the plaint to be (Self-revealed) and reliance is
placed upon a passage in the Nirnaya Sindhu (see also
Dharma Sindhu) which runs as follows:
i |ii ,i| l nii i in ln i
i |
ill, lnl-n lnii i nil -l
i
nn -rilii lln ll -|
10. Now renewal of Decayed (Image is considered) that
1938
is to be performed when a Linga and the like are burnt or
broken removed (from its proper place). But this is not to
be performed with respect to a Linga or like which is
established by a Sadhu or one who has become successful
in the highest religious practices, or which is Anadi i.e., of
which the commencement is not known or which has no
commencement. But there Mahabhishika or the ceremony
of great appointment should be performed. This is said by
Tre-Vikrama:-Nirnaya Sindhu of Kamala-kara Bhatta,
Bombay Edition of 1900, age 264 (See Golap Chandra
sarkar's Hindu Law, 4th Edition 473). But according to the
plaintiff the image was installed by some remote ancestor
of his, while according to the defendants it was installed by
one Jantridhar. The image therefore does not appear to be
Anadi. It is then urged even if the image bad a
commencement, the restoration had not been made within
the time prescribed. But the text from Haya Sirsha upon
which reliance is placed, while laying down that the
restoration after the prescribed period is blameworthy does
not say that it is altogether invalid."
1841. The Court also held that it should be seen as to how
the people concerned treat and if they believe and proceed that it
is a restoration of old image and continue with the worship,
nothing more is required.
1842. In Purna Chandra Bysack Vs. Gopal Lal Sett &
Ors. 1908 (VIII) Calcutta Law Journal 369, Special bench of
Calcutta High Court observed:
The image or idol is merely the symbol of the
Deity, and the object of worship is not the image but the
God believed to be manifest in the image for the benefit
1939
of the worshipper who cannot conceive or think of the
Deity without the aid of a perceptible form on which he
may fix his mind and concentrate his attention for the
purpose of meditation. If the image be cracked, broken,
mutilated or lost, it may be substituted by a new one duly
consecrated.
1843. In Idol of Thakurji Shri Govind Deoji Maharaj,
Jaipur (supra) the Apex Court observed in para 6 as under:
It is obvious that in the case of a grant to the Idol or
temple as such there would be no question about the death
of the grantee and, therefore, no question about its
successor. An Idol which is a juridical person is not subject
to death, because the Hindu concept is that the Idol lives
for ever, and so, it is plainly impossible to predicate about
the Idol which is the grantee in the present case that it has
died at a certain time and the claims of a successor fall to
be determined. (Para 6)
1844. In para 15 of the judgment in Ram Jankijee Deities
(supra) it was held, while usually an idol is consecrated in a
temple, it does not appear to be an essential condition. The Apex
Court affirmed the Division Bench decision of Madras High
Court in Board of Commissioners for H.R.E. Vs. Pidugu
Narasimham (supra) and T.R.K. Ramaswami Servai (supra)
reiterated:
"The test is not whether it conforms to any particular
school of Agama Shastras. The question must be decided
with reference to the view of the class of people who take
part in the worship. If they believe in its religious efficacy,
in the sense that by such worship they are making
themselves the object of the bounty of some super-human
1940
power, it must be regarded as "religious worship"..... If the
public or that section of the public who go for worship
consider that there is a divine presence in a particular
place and that by offering worship there they are likely to
be the recipients of the blessings of God, then we have the
essential features of a temple as defined in the Act." (Para
15)
1845. A Division Bench of Andhra Pradesh High Court in
Venkataramana Murthi Vs. Sri Rama Mandhiram (supra)
observed that the existence of an idol and a dhwajasthambham
are not absolutely essential for making an institution a temple
and so long as the test of public religious worship at that place is
satisfied, it answer the definition of a temple. This decision is
also referred and approved in Ram Jankijee Deities (supra).
1846. A Division Bench of Madras High Court in Board of
Commissioners for H.R.E. Vs. Pidugu Narasimham (supra)
on page 135 held :
we think that the question must be decided with reference
to the view of the class of people who take part in the
worship. If they believe in its religious efficacy, in the sense
that by such worship they are making themselves the object
of the bounty of some super-human power, it must be
regarded as religious worship. (Page135)
1847. In T.R.K. Ramaswami Servai Vs. Board of
Commissioners (supra) with reference to Section 9 (12) of
Madras Hindu Religious Endowments Act, 1927, the Court in
para 47 observed as under:
Consecration, according to the ceremonial rites
prescribed by the Agama Sastras, is not a legal requisite,
though it is a sacredotal necessity according to the views of
1941
the orthodox. The test is not whether the installation of an
idol and the mode of its worship conform to any particular
school of Agama Sastras. If the public or that section of
the public who go for worship consider that there is a
divine presence in a particular place and by offering
worship at that place, they are likely to be the recipients
of the bounty or blessings of God, then, you have got the
essential features of a temple as defined in S. 9, cl. (12) of
the Act. The presence of an idol, though an invariable
feature of Hindu temples, is not a legal requisite under the
definition of a temple in S. 9, cl. (12) of the Act. The word
institution which is used in S. 84(1) of the Act is a term
of very wide import, capable of different meanings
according to the context in which it is used. It means,
among other things, a foundation, a system, a constitution,
an establishment, or organisation, a place designed for the
promotion of some religious, charitable or other object of
public utility and so on. (para 47) (emphasis added)
1848. In Saraswathi Ammal Vs. Rajagopal Ammal (supra),
the Court while holding that, a religious purpose under Hindu
Law must be determined according to Hindu notions, observed:
(6) It was held in the Madras decisions above noticed that
the building of a samadhi or a tomb over the remains of a
person and the making of provision for the purpose of
Gurupooja and other ceremonies in connection with the
same cannot be recognised as charitable or religious
purpose according to Hindu law. This is not on the ground
that such a dedication is for a superstitious use and hence
invalid. Indeed the law of superstitious uses as such has no
application to India. The ground of the Madras decisions is
1942
that a trust of the kind can claim exemption from the rule
against perpetuity only if it is for a religious and charitable
purpose recognised as such by Hindu law and that Hindu
law does not recognise dedication for a tomb as a religious
or charitable purpose. It is, however, strenuously argued
by the learned counsel for the appellants that the perpetual
dedication of property in the present case, as in the Madras
cases above referred to, must be taken to have been made
under the belief that it is productive of spiritual benefit to
the deceased and as being some what analogous to worship
of ancestors at a sradh.
It is urged, therefore, that they are for religious
purposes and hence valid. The following passage in
Maynes Hindu Law, 11th Edition, at page 192, is relied on
to show that
"What are purely religious purposes and
what religious purposes will be charitable must be
entirely decided according to Hindu law and
Hindu notions."
It is urged that whether or not such worship was
originally part of Hindu religion, this practice has now
grown up and with it the belief in the spiritual efficacy
thereof and that courts cannot refuse to accord
recognition to the same or embark on an enquiry as to
the truth of any such religious belief, provided it is not
contrary to law or morality. It is further urged that unlike
in English law, the element of actual or assumed public
benefit is not the determining factor as to what is a
religious purpose under the Hindu law.
Now, it is correct to say that what is a religious
1943
purpose under the Hindu law must be determined
according to Hindu notions. This has been recognised by
courts from very early times. Vide- 'Fatma Bibi v.
Advocate-General of Bombay' , 6 Bom 42 (D). It cannot
also be disputed that under the Hindu law religious or
charitable purposes are not confined to purposes which are
productive of actual or assumed public benefit. The
acquisition of religious merit is also an important criterion.
This is illustrated by the series of cases which recognise the
validity of perpetual endowment for the maintenance and
worship of family idols or for the continued performance of
annual sradhs of an individual and his ancestors. See-
'Dwarkanath Bysack v. Burroda Persaud Bysack', 4 Cal
443 (E) and 'Rupa Jagashet v. Krishnaji', 9 Bom 169 (F).
So far as the textual Hindu law is concerned what acts
conduce to religious merit and justify a perpetual
dedication of property therefor is fairly definite. As stated
by the learned author Prananath Saraswathi on the Hindu
Law of Endowments at page 18-
"From very ancient times the sacred writings of
the Hindus divided work productive of religious merit
into two divisions named 'ishta' and 'purtta', a
classification which has come down to our own
times. So much so that the entire object of Hindu
endowments will be found included within the
enumeration of 'ishta' and 'purtta'."
The learned author enumerates what are 'ishta'
works at pages 20 and 21 and what are 'purtta' works at
page 27. This has been adopted, by later learned authors
on the law of Hindu Religious Endowments and accepted
1944
by Subrahmania Ayyar J., in his judgment in-
'Parthasarthy Pillai v. Thiruvengada Pillai'. 30 Mad 340 at
p. 342 (G). These lists are no doubt not exhaustive but they
indicate that what conduces to religious merit in Hindu law
is primarily a matter of Shastraic injunction. To the extent,
therefore, that any purpose is claimed to be a valid one for
perpetual dedication on the ground of religious merit
though lacking in public benefit,it must be shown to have a
Shastraic basis so far as Hindus are concerned. No doubt
since then other religious practices and beliefs may have
grown up and obtained recognition from certain classes, as
constituting purposes Conducive to religious merit. If such
beliefs are to be accepted by courts as being sufficient for
valid perpetual dedication of property therefore without the
element of actual or presumed public benefit it must at
least be shown that they have obtained wide recognition
and constitute the religious practice of a substantial and
large class of persons. That is a question which does not
arise for direct decision in this case. But it cannot be
maintained that the belief in this behalf of one or more
individuals is sufficient to enable them to make a valid
settlement permanently tying up property. The heads of
religious purposes determined by belief in acquisition of
religious merit cannot be allowed to be widely enlarged
consistently with public policy and needs of modern
society.
1849. The concept of idol, juristic personality and its co-
relation with consecration came to be considered before a
Division Bench of this Court in Gokul Nathji Maharaj and
another Vs. Nathji Bhogi Lal (supra). The Court observed in
1945
para 4 of the judgement:
According to the traditions these idols that were
handed over by Ballabhacharyaji to his seven grandsons
were self-revealed idols of Lord Krishna and it is on that
account that the learned Judge came to the conclusion that
there could not have been due consecration according to
law and it could not be said that the spirit of God ever
came to reside in them. As it was pointed out by the learned
Munsif in his very careful judgment that according to true
Hindu belief the idol is not worshipped as such but it is the
God behind the idol which is the object or worship.
The learned Munsif has pointed out that there are
elaborate provisions in Hindu Law which enable a stone
image or an image made of wood to be changed and
replaced by another. It cannot be said that the stone image
or image made of wood or of gold or other materials is the
real object of worship or the real person owning the
property. The real owner of the property is deemed to be
God Himself represented through a particular idol or deity
which is merely a symbol.
From the evidence it is clear that plaintiff 1 as such a
symbol has been the object of worship by a large sect of
people known as 'Nimar Yas' for over three hundred years
and extensive properties are owned by and are in the
possession of the said idol. In the circumstances, we think it
was unreasonable for the learned Judge to expect that
there would be any direct evidence of consecration, nor is
it reasonable after such a length of time to require the
plaintiffs to prove affirmatively that such ceremonies were
performed as would entitle the plaintiff to claim to be a
1946
juristic personality. (para 4)
1850. Further with respect to consecration the Court said:
5. From the fact that the idol was said to be self-
revealed that learned Judge assumed that there could have
been no consecration of it. It is impossible after this length
of time to prove by affirmative evidence whether there was
or there was no consecration and we have not been
referred to any book of authority or any evidence which
would go to show that in the cases of idols which were
deemed by their followers to be self-revealed no
consecration takes place. From the fact and circumstances,
however, it is abundantly clear that the idol was duly
recognised by all those who believed in it as an idol of
Lord Krishna and was worshipped as such. Properties
were dedicated to it and properties have been brought to its
use through centuries that it has existed.
After all the question whether a particular idol is
or is not duly consecrated must depend upon the religious
faith and belief of its followers and we have no doubt that
all that was necessary to deify it must have been done by
those who believed in the said idol.
1851. In Ganpat Vs. Returning Officer (1975) 1 SCC 589,
the Court noticed varied religious practices of Hindus and
observed that Hindu is inclined to believe the divine in every
manifestation, whatever it may be, and is doctrinally tolerant.
The Hindu is deposed to think synthetically. To regard other
forms of worship of strange Gods and divergent doctrines as
inadequate rather than wrong or objectionable; he (Hindu) tends
to believe that the highest divine powers co-complement each
other for the well-being of the world and mankind. Religion,
1947
therefore, is one of the personal beliefs, is more a cultural
attitude towards a physical thinking in that way of life and is
worship of the image of God in different manifestation.
1852. In Sri Adi Visheshwara of Kashi Vishwanath
Temple, Varanasi (supra), in para 30 of the judgment, it was
held:
30. Hinduism cannot be defined in terms of Polytheism
or Henotheism or Monotheism. The nature of Hindu
religion ultimately is Monism/Advaita. This is in
contradistinction to Monotheism which means only one
God to the exclusion of all others, Polytheism is a belief of
multiplicity of Gods: On the contrary, Monism is a spiritual
belief of one Ultimate Supreme and manifests Himself as
many. This multiplicity is not contrary to on-dualism. This
is the reason why Hindus stall adoring any Deity either
handed down by tradition or brought by a Guru or
Swambhuru and seek to attain the Ultimate Supreme.
(emphasis added)
1853. In Shastri Yagnapurushdasji & others Vs. Muldas
Bhundardas Vaishya and another AIR 1966 SC 1119, the
Court considered the question as to whether Swaminarayan sect
is a religion distinct and separate from Hindu religion or not:
26. That takes us to the main controversy between
the parties. Are the appellants justified in contending that
the Swaminarayan sect is a religion distinct and separate
from the Hindu religion, and consequently, the temples
belonging to the said sect do no fall within the ambit of s. 3
of the Act ? In attempting to answer this question, we must
inevitably enquire what are the distinctive features of
Hindu religion? The consideration of this question, prima
1948
facie, appears to be somewhat inappropriate within the
limits of judicial enquiry in a court of law. It is true that the
appellants seek for reliefs in the present litigation on the
ground that their civil rights to manage their temples
according to their religious tenets are contravened; and so,
the Court is bound to deal with the controversy as best as it
can. The issue raised between the parties is undoubtedly
justiciable and has to be considered as such; but in doing
so, we cannot ignore the fact that the problem posed by the
issue, though secular in character, is very complex to
determine; its decision would depend on social,
sociological, historical, religious and philosophical
considerations; and when it is remembered that the
development and growth of Hindu religion spreads over a
large period nearly 4,000 years, the complexity of the
problem would at once become patent.
27. Who are Hindus and what are the broad features
of Hindu religion, that must be the first part of our enquiry
in dealing with the present controversy between the parties.
The historical and etymological genesis of the word
"Hindu" has given rise to a controversy amongst
indologists; but the view generally accepted by scholars
appears to be that the word "Hindu" is derived from the
river Sindhu otherwise known as Indus which flows from
the Punjab. "That part of the great Aryan race", says
Monier Williams, "which immigrated from Central Asia,
through the mountain passes into India, settled first in the
districts near the river Sindhu (now called the Indus). The
Persians pronounced this word Hindu and named their
Aryan brethren Hindus. The Greeks, who probably gained
1949
their first ideas of India from the Persians, dropped the
hard aspirate, and called the Hindus "Indoi". ("Hinduism"
by Monier Williams, p.1.)"
28. The Encyclopaedia of Religion and Ethics, Vol.
VI, has described "Hinduism" as the title applied to that
form of religion which prevails among the vast majority of
the present population of the Indian Empire (p. 686). As
Dr. Radhakrishnan has observed; "The Hindu civilization
is so called, since its original founders or earliest followers
occupied the territory drained by the Sindhu (the Indus)
river system corresponding to the North-West Frontier
Province and the Punjab. This is recorded in the Rig Veda,
the oldest of the Vedas, the Hindu scriptures which give
their name to this period of Indian history. The people on
the Indian side of the Sindhu were called Hindu by the
Persian and the later western invaders". ("The Hindu View
of Life" by Dr. Radhakrishnan, p. 12.) That is the genesis of
the word "Hindu".
29. When we think of the Hindu religion, we find it
difficult, if not impossible, to define Hindu religion or even
adequately describe it. Unlike other religions in the world,
the Hindu religion does not claim any one prophet; it does
not worship any one God; it does not subscribe to any one
dogma; it does not believe in any one philosophic concept;
it does not follow any one set of religious rites or
performances; in fact, it does not appear to satisfy the
narrow traditional features of any religion or creed. It may
broadly be described as a way of life and nothing more.
30. Confronted by this difficulty, Dr. Radhakrishnan
realised that "to many Hinduism seems to be a name
1950
without any content. Is it a museum of beliefs, a medley of
rites, or a mere map, a geographical expression?" (The
Hindu View of Life by Dr. Radhakrishnan, p. 11.) Having
posed these questions which disturbed foreigners when
they think of Hinduism, Dr. Radhakrishnan has explained
how Hinduism has steadily absorbed the customs and ideas
of peoples with whom it has come into contact and has thus
been able to maintain its supremacy and its youth. The
term 'Hindu', according to Dr. Radhakrishnan, had
originally a territorial and not a credal significance. It
implied residence in a well-defined geographical area.
Aboriginal tribes, savage and half-civilized people, the
cultured Dravidians and the Vedic Aryans were all Hindus
as they were the sons of the same mother. The Hindu
thinkers reckoned with the striking fact that the men and
women dwelling in India belonged to different
communities, worshipped different gods, and practiced
different rites (The Hindu View of Life by Dr.
Radhakrishnan, p. 12) (Kurma Purana)
31. Monier Williams has observed that "it must be
borne in mind that Hinduism is far more than a mere form
of theism resting on Brahmanism. It presents for our
investigation a complex congeries of creeds and doctrines
which in its gradual accumulation may be compared to the
gathering together of the mighty volume of the Ganges,
swollen by a continual influx of tributary rivers and
rivulets, spreading itself over an ever-increasing area of
country and finally resolving itself into an intricate Delta
of tortuous steams and jungly marshes ..... The Hindu
religion is a reflection of the composite character of the
1951
Hindus, who are not one people but many. It is based on
the idea of universal receptivity. It has ever aimed at
accommodating itself to circumstances, and has carried on
the process of adaptation through more than three
thousand years. It has first borne with and then, so to
speak, swallowed, digested, and assimilated something
from all creeds." ("Religious Thought & Life in India" by
Monier Williams, P. 57.)
32. We have already indicated that the usual tests
which can be applied in relation to any recognised religion
or religious creed in the world turn out to be inadequate in
dealing with the problem of Hindu religion. Normally, any
recognised religion or religious creed subscribes to a body
of set philosophic concepts and theological beliefs. Does
this test apply to the Hindu religion? In answering this
question, we would base ourselves mainly on the exposition
of the problem by Dr. Radhakrishnan in his work on Indian
Philosophy. ("Indian Philosophy" by Dr. Radhakrishnan,
Vol. I, pp. 22-23.) Unlike other countries, India can claim
that philosophy in ancient India was not an auxiliary to any
other science or art, but always held a prominent position
of independence. The Mundaka Upanisad speaks of
Brahma-vidya or the science of the eternal as the basis of
all sciences, 'sarva-vidya -pratishtha'. According to
Kautilya, "Philosophy" is the lamp of all the sciences, the
means of performing all the works, and the support of all
the duties. "In all the fleeting centuries of history", says Dr.
Radhakrishnan, "in all the vicissitudes through which India
has passed, a certain marked identity is visible. It has held
fast to certain psychological traits which constitute its
1952
special heritage, and they will be the characteristic marks
of the Indian people so long as they are privileged to have
a separate existence." The history of Indian thought
emphatically brings out the fact that the development of
Hindu religion has always been inspired by an endless
quest of the mind for truth based on the consciousness that
truth has many facets. Truth is one, but wise men describe
it differently. The Indian mind has, consistently through the
ages, been exercised over the problem of the nature of
godhead the problem that faces the spirit at the end of life,
and the inter-relation between the individual an the
universal soul. "If we can abstract from the variety of
opinion", says Dr. Radhakrishnan, "and observe the
general spirit of Indian thought, we shall find that it has a
disposition to interpret life and nature in the way of
monistic idealism, though this tendency is so plastic, living
and manifold that it takes many forms and expresses itself
in even mutually hostile teachings". (Ibid, p.32.)
33. The monistic idealism which can be said to be the
general distinguishing feature of Hindu Philosophy has
been expressed in four different forms : (1) Non-dualism or
Advitism; (2) Pure monism; (3) Modified monism; and (4)
Implicit monism. It is remarkable that these different forms
of monistic idealism purport to derive support from the
same vedic and Upanishadic texts. Shankar, Ramanuja,
Vallabha and Madhva all based their philosophic concepts
on what they regarded to be the synthesis between the
Upanishads, the Brahmasutras and the Bhagavad Gita.
Though philosophic concepts and principles evolved by
different Hindu thinkers and philosophers varied in many
1953
ways and even appeared to conflict with each other in some
particulars, they all had reverence for the past and
accepted the Vedas as the sole foundation of the Hindu
philosophy. Naturally enough, it was realised by Hindu
religion from the very beginning of its career that truth was
many-sided and different views contained different aspects
of truth which no one could fully express. This knowledge
inevitably bred a spirit of tolerance and willingness to
understand and appreciate the opponents point of view.
That is how "the several views set forth in India in regard
to the vital philosophic concepts are considered to be the
branches of the self-same tree. The short cuts and blind
alleys are somehow reconciled with the main road of
advance to the truth." (Ibid p. 48.) When we consider this
broad sweep of the Hindu philosophic concepts, it would be
realised that under Hindu philosophy, there is no scope for
ex-communicating any notion or principle as heretical and
rejecting it as such.
34. Max Muller who was a great oriental scholar of
his time was impressed by this comprehensive and all-
pervasive aspect of the sweep of Hindu philosophy.
Referring to the six systems known to Hindu philosophy,
Max Muller observed : "The longer I have studied the
various systems, the more have I become impressed with
the truth of the view taken by Vijnanabhiksu and others that
there is behind the variety of the six systems a common
fund of what may be called national or popular philosophy,
a large manasa (lake) of philosophical thought and
language far away in the distant North and in the distant
past, from which each thinker was allowed to draw for his
1954
own purposes". ("Six Systems of Indian Philosophy" by
Max Muller, p. xvii.)
35. Beneath the diversity of philosophic thoughts,
concepts and ideas expressed by Hindu philosophers who
started different philosophic schools, lie certain broad
concepts which can be treated as basic. The first amongst
these basic concepts is the acceptance of the Veda as the
highest authority in religious and philosophic matters. This
concept necessarily implies that all the systems claimed to
have drawn their principles from a common reservoir of
thought enshrined in the Veda. The Hindu teachers were
thus obliged to use the heritage they received from the past
in order to make their views readily understood. The other
basic concept which is common to the six systems of Hindu
philosophy is that "all of them accept the view of the great
world rhythm. Vast periods of creation, maintenance and
dissolution follow each other in endless succession. This
theory is not inconsistent with belief in progress; for it is
not a question of the movement of the world reaching its
goal times without number, and being again forced back to
its starting point........ It means that the race of man enters
upon and retravals its ascending path of realisation. This
interminable succession of world ages has no beginning".
("Indian Philosophy" by Dr. Radhakrishnan, Vol. II., p. 26)
It may also be said that all the systems of Hindu philosophy
believe in rebirth and pre-existence. "Our life is a step on a
road, the direction and goal of which are lost in the
infinite. On this road, death is never an end of an obstacle
but at most the beginning of new steps". (Indian
Philosophy by Dr. Radhakrishnan, Vol. II, p. 27) Thus, it is
1955
clear that unlike other religions and religious creeds,
Hindu religion is not tied to any definite set of philosophic
concepts as such.
36. Do the Hindus worship at their temples the same
set or number of gods ? That is another question which can
be asked in this connection; and the answer to this question
again has to be in the negative. Indeed, there are certain
sections of the Hindu community which do not believe in
the worship of idols; and as regards those sections of the
Hindu community which believe in the worship of idols
their idols differ from community to community and it
cannot be said that one definite idol or a definite number of
idols are worshipped by all the Hindus in general. In the
Hindu Pantheon the first goods that were worshipped in
Vedic times were mainly Indra, Varuna, Vayu and Agni.
Later, Brahma, Vishnu and Mahesh came to be
worshipped. In course of time, Rama and Krishna secured
a place of pride in the Hindu Pantheon, and gradually as
different philosophic concepts held sway in different sects
and in different sections of the Hindu community, a large
number of gods were added, with the result that today, the
Hindu Pantheon presents the spectacle of a very large
number of gods who ar worshipped by different sections of
the Hindus.
37. The development of Hindu religion and
philosophy shows that from time to time saints and
religious reformers attempted to remove from the Hindu
thought and practices elements of corruption and
superstition and that led to the formation of different sects.
Buddha started Buddhism; Mahavir founded Jainism;
1956
Basava became the founder of Lingayat religion,
Dnyaneshwar and Tukaram initiated the Varakari cult;
Guru Nanak inspired Sikhism; Dayananda founded Arya
Samaj, and Chaitanya began Bhakti cult; and as a result of
the teachings of Ramakrishna and Vivekananda, Hindu
religion flowered into its most attractive, progressive and
dynamic form. If we study the teachings of these saints and
religious reformers, we would notice an amount of
divergence in their respective views; but underneath that
divergence, there is a kind of subtle indescribable unity
which keeps them within the sweep of the broad and
progressive Hindu religion.
38. There are some remarkable features of the
teachings of these saints and religious reformers. All of
them revolted against the dominance of rituals and the
power of the priestly class with which it came to be
associated; and all of them proclaimed their teachings not
in Sanskrit which was the monopoly of the priestly class,
but in the languages spoken by the ordinary mass of people
in their respective regions.
1854. Thereafter, the Court considered the teachings and
followings of the Swaminarayan sect and upheld the decision of
the High Court that it is not a sect distinct and separate from
Hindu religion.
1855. Construing the right protected under Articles 25 and 26
of the Constitution, the Apex Court in para 31 Sri Adi
Visheshwara of Kashi Vishwanath Temple (supra) said:
31. The protection of Articles 25 and 26 of the
Constitution is not limited to matters of doctrine. They
extend also to acts done in furtherance of religion and,
1957
therefore, they contain a guarantee for rituals and
observances, ceremonies and modes of worship which
are integral parts of the religion. . . . Religion
undoubtedly has its basis in a system of beliefs which are
regarded by those who profess religion to be conducive to
the future well-being. It is not merely a doctrine. It has
outward expression in acts as well. It is not every aspect of
the religion that requires protection of Articles 25 and 26
nor has the Constitution provided that every religious
activity would not be interfered with. Every mundane and
human activity is not intended to be protected under the
Constitution in the grab of religion. Articles 25 and 26
must be viewed with pragmatism. ......... The right to
observe and practice rituals and right to manage in
matters of religion are protected under these Articles.
But right to manage the Temple or endowment is not
integral to religion or religious practice or religion as such
which is amenable to statutory control. These secular
activities are subject to State regulation but the religion
and religious practices which are integral part of religion
are protected. It is well settled law that administration,
management and governance of the religious institution or
endowment are secular activities and the State could
regulate them by appropriate legislation. . . .
1856. In Sri Venkataramana Devaru Vs. State of Mysore
(supra) in reference to Article 26 (b) the Court said that
practices which are regarded by the community as part of its
religion and under the ceremonial law pertaining to temples,
who are entitled to enter into them for worship and were they
are entitled to stand for worship and how the worship is to be
1958
conducted are all matter of religion.
1857. Construing the scope of Article 25 and 26 insofar as it
confers fundamental right protecting religious freedom, the
Apex Court in A.S. Narayana (supra) said that religion as used
in these Articles must be construed in its strict and etymological
sense. Religion is that which binds a man with his Cosmos, his
creator or super force. It is different and rather impossible to
define or delimit the expressions religion or matters of
religion used in Article 25 and 26. Essentially, religion is a
matter of personal faith and belief of personal relations of an
individual with what he regards as Cosmos, his Maker or his
Creator which, he believes, regulates the existence of insentient
beings and the forces of the universe. Religion is not necessarily
theistic and in fact there are well-known religions in India itself
like Budhism and Jainism which do not believe in the existence
of God. In India. Muslims believe in Allah and have faith in
Islam; Christians in Christ and Christianity; Parsis in
Zorastianism; Sikhs in Gurugranth Sahib and teachings of
Gurunanak Devji, its founder, which is a facet of Hinduism like
Brahamos, Aryasamaj etc. The Court in para 89 of the judgment
further observed :
89. A religion undoubtedly has its basis in a system of
beliefs and doctrine which are regarded by those who
profess religion to be conducive to their spiritual well-
being. A religion is not merely an opinion, doctrine or
belief. It has outward expression in acts as well. It is not
every aspect of religion that has been safeguarded by
Articles 25 and 26 nor has the Constitution provided that
every religious activity cannot be interfered with. Religion,
therefore, be construed in the context of Articles 25 and 26
1959
in its strict and etymological sense. Every religion must
believe in a conscience and ethical and moral precepts.
Therefore, whatever binds a man to his own conscience
and whatever moral or ethical principle regulate the lives
of men believing in that theistic, conscience or religious
belief that alone can constitute religion as understood in
the Constitution which fosters feeling of brotherhood,
amenity, fraternity and equality of all persons which find
their foot-hold in secular aspect of the Constitution.
Secular activities and aspects do not constitute religion
which brings under its own cloak every human activity.
There is nothing which a man can do. Whether in the way
of wearing clothes or food or drink, which is not
considered a religious activity. Every mundane or human
activity was not intended to be protected by the
Constitution under the guise of religion. The approach to
construe the protection of religion or matters of religion or
religious practices guaranteed by Articles 25 and 26 must
be viewed with pragmatism since by the very nature of
things, it would be extremely difficult, if not impossible to
define the expression religion of matters or religion or
religious belief or practice.
1858. Again in para 90, the Court observed :
Therefore, the right to religion guaranteed under Article
25 or 26 is not an absolute or unfettered right to
propagating religion which is subject to legislation by the
State limiting or regulating any activity-economic,
financial, political or secular which are associated with
religious belief, faith, practice or custom. They are subject
to reform on social welfare by appropriate legislation by
1960
the State. Though religious practices and performances of
acts pursuance of religious belief are as much a part of
religion as faith or belief in a particular doctrine, that by
itself is not conclusive or decisive. What are essential parts
of religion or religious belief or matters of religion and
religious practice is essentially a question of fact to be
considered in the context in which the question has arisen
and the evidence- factual or legislative or historic-
presented in that context is required to be considered and a
decision reached.
1859. It would also be useful to refer the observations made
in para 91 of the judgment :
91. The Court, therefore, while interpreting Articles 25
and 26 strikes a careful balance between the freedom of the
individual or the group in regard to religion, matters of
religion, religious belief, faith or worship, religious
practice or custom which are essential and integral part
and those which are not essential and integral and the need
for the State to regulate or control in the interest of the
community.
1860. In Durgah Committee, Ajmer Vs. Syed Hussain Ali
AIR 1961 SC 1402, the Constitution Bench said :
While we are dealing with this point it may not be
out of place incidentally to strike a note of caution and
observe that in order that the practices in question should
be treated as a part of religion they must be regarded by
the said religion as its essential and integral part;
otherwise even purely secular practices which are not an
essential or an integral part of religion are apt to be
clothed with a religious form and may make a claim for
1961
being treated as religious practices within the meaning of
Art. 26. Similarly, even practices though religious may
have sprung from merely superstitious beliefs and may in
that sense be extraneous and unessential accretions to
religion itself. Unless such practices are found to constitute
an essential and integral part of a religion their claim for
the protection under Art. 26 may have to be carefully
scrutinised; in other words, the protection must be confined
to such religious practices as are an essential and an
integral part of it and no other.
1861. In the above judgement, the Court also held:
If the right to administer the properties never vested in
the denomination or had been validly surrendered by it or
has otherwise been effectively and irretrievably lost to it,
Art. 26 cannot be successfully invoked.
1862. The Court further held:
"It is obvious that Art. 26 (c) and (d) do not create rights in
any denomination or its section which it never had; they
merely safeguard and guarantee the continuance of rights
which such denomination or its section had. In other
words, if the denomination never had the right to manage
the, properties endowed in favour of a denominational
institution as for instance by reason of the terms on which
the endowment was created it cannot be heard to say that
it has acquired the, said rights as a result of Art. 26(c)
and (d), and that the practice and custom prevailing in
that behalf which obviously is consistent with the terms of
the endowment should be ignored or treated as invalid and
the administration and management should now be given
to the denomination. Such a claim is plainly inconsistent
1962
with the provisions of Art. 26."
"If the practice in question is purely secular or the affairs
which is controlled by the statute is essentially and
absolutely secular in Character, it cannot be urged that
Art. 25(1) or Art. 26(b) has been contravened. The
protection is given to the practice of religion and to the
denomination's right to manage its own affairs in matters
of religion."
"Art. 26(b) relates to affairs 754 in matters of religion such
as the performance of the religious rites or ceremonies or
the observance of religious festivals and the like; it does
not refer to the administration of the property at all.
Article 26(d), therefore, justifies the enactment of a law to
regulate the administration of the denomination's property
and that is precisely what the Act has purported to do in
the present case. If the clause affairs in matters of
religion were to include affairs in regard to all matters,
whether religious or not the provisions under Art. 26(d)
for legislative regulation of the administration of the
denomination's property would be rendered illusory."
1863. Following the above decision in State of Rajasthan
Vs. Sajjanlal Panjawat and others, 1974 SCC (1) 500 the
Court held:
Bearing in mind the scope of clauses (b) and (d) of Art.
26 as expounded in the decisions of this Court, if, as we
have held, the right of management of Rikhabdevji temple
is lost as it is vested in the State. The respondents cannot
complain of any infringement of their fundamental rights to
manage and administer its affairs, and as such the High
Court was in error in giving the impugned directions.
1963
1864. Considering as to what "practices" would constitute
part of "religion" in Durgah Committee, Ajmer Vs. Syed
Hussain Ali (supra) a Constitution Bench of the Apex Court in
para 33 of the judgment held:
....in order that the practices in question should be
treated as a part of religion they must be regarded by the
said religion as its essential and integral part; otherwise
even purely secular practices which are not an essential or
an integral part of religion are apt to be clothed with a
religious form and may make a claim for being treated as
religious practices within the meaning of Art. 26. Similarly,
even practices though religious may have sprung from
merely superstitious beliefs and may in that sense be
extraneous and unessential accretions to religion itself.
Unless such practices are found to constitute an essential
and integral part of a religion their claim for the protection
under Art. 26 may have to be carefully scrutinised; in other
words, the protection must be confined to such religious
practices as are an essential and an integral part of it and
no other.
1865. In para 37 with reference to the scope of Article 26 (c)
and (d), the Court said:
It is obvious that Art. 26(c) and (d) do not create rights in
any denomination or its section which it never had; they
merely safeguard and guarantee the continuance of rights
which such denomination or its section had. In other
words, if the denomination never had the right to manage
the properties endowed in favour of a denominational
institution as for instance by reason of the terms on which
the endowment was created it cannot be heard to say that it
1964
has acquired the said rights as a result of Art. 26(c) and
(d), and that the practice and custom prevailing in that
behalf which obviously is consistent with the terms of the
endowment should be ignored or treated as invalid and the
administration and management should now be given to the
denomination. Such a claim is plainly inconsistent with the
provisions of Art. 26. If the right to administer the
properties never vested in the denomination or had been
validly surrendered by it or has otherwise been effectively
and irretrievably lost to it Art. 26 cannot be successfully
invoked.
1866. Next comes Gedela Satchidananda Murthy (supra)
where the Court reproduced the quotation from Madras High
Court's judgment in Pidugu Narasimham (supra) in para 16.
Further in para 17, the Apex Court held:
Religious practices vary from State to State, region to
region, place to place and sect to sect. When the legislature
makes a legislation, the existing state of affairs and the
basis on which such legislation has been made would be
presumed to have been known to it. Whereas the property
for construction of a samadhi or tomb by itself may not
amount to a permanent dedication involving public
character of such institution, a distinction must be borne in
mind about a tomb constructed on the samadhi of an
ordinary man and a saintly person. In a case falling within
the latter category, the answer to the question, in our
opinion, should be rendered in the affirmative.
1867. In Raja Muttu Ramalinga Setupati Vs.
Perianayagum Pillai, 1 IA 209 (p. 234) the Privy Council held:
"The important principle to be observed by Courts in dealing
1965
with constitution and rules of religious brotherhoods attached to
Hindu Temples is to ascertain, if possible, the special laws and
usages governing the particular community whose affairs
have become subject of litigation."
1868. It further observed: "The subject of devastanum lands
is of a great importance to the happiness of the people, and the
attention paid to the interest of the pagodas .. has been
attended with most beneficial consequences to the people in
different parts of peninsula" (i.e India).
1869. In Sarangadeva Periya Matam v. Ramaswami
Goundar (supra), relying on Pramatha Nath Mullick v.
Pradhyumna Kumar Mullick (supra), Counsel for the
Respondents therein submitted that a math, like an idol, has a
juridical status with the power of suing and being sued. Hon'ble
Supreme Court accepted this contention and held:
Like an idol, the math is a juristic person having the
power of acquiring, owning and possessing properties and
having the capacity of suing and being sued. Being an ideal
person, it must of necessity act in relation to its temporal
affairs through human agency. See Babajirao v.
Luxmandas, (1904) ILR 28 Bom 215 (223). It may acquire
property by prescription and may likewise lose property
by adverse possession."
1870. In Kamaraju Venkata Krishna Rao (supra), the
controversy before the Honble Apex Court was whether a tank
can be considered as a charitable institution under Section 2 (E)
of the Andhra Inams (Abolition and Conversion into Ryotwari
Act) 1956. Honble Court quoted from a DB judgment of the
Mysore High Court, V. Mariyappa Vs. B.K. Puttaramayya,
ILR (1957) Mys 291:AIR 1958 Mys 93:
1966
The maintenance of Sadavartas, tanks, seats of learning
and homes for the disabled or the destitute and similar
institutions is recognized by and well known to Hindu Law,
and when maintained as public institutions they must be
taken to have a legal personality as a Matha or the deity in
a temple has, and the persons in charge of the Management
would occupy a position of trust.
1871. There Court also held, when maintained as public
institutions, then, not only temples and mutts, but also
sadavartas and tanks etc take up a legal personality. An excerpt:
"It has been held that though Mutts and temples are the
most common forms of Hindu religious institutions,
dedication for religious or charitable purposes need not
necessarily take one of these forms and that the
maintenance of Sadavartas, tanks, seats of learning and
homes for the disabled or the destitutes and similar
institutions are recognised by and well known to Hindu
Law and when maintained as public institutions, they
must be taken to have a legal personality as a Matha or
the deity in a temple has, and the persons in charge of the
management would occupy a position of trust."
1872. In the above holding, there is a presumption that Mutts
and temples, when maintained as public institutions, take up a
legal personality - and this proposition is extended to the case of
sadavartas and tanks etc.
1873. In Pooranchand Vs. The Idol Shri Radhakrishnaji &
another AIR 1979 MP 10, a Division Bench considered and
explained meaning of the term religious endowment and said
that dedication of the property for religious purposes such as
establishment and worship of an idol is a religious endowment
1967
and consequently a trust. Regarding the capacity of filing suit by
an idol through a next friend, it observed in para 8 of the
judgment:
In our opinion, the proposition, that an idol or deity is a
juristic person and can sue as such admits of no doubt, as
it has been established by a series of authorities that an
idol as a juristic person, can sue through a next friend.
1874. Considering the nature of property dedicated for use as
Dharamchatra, resting place for the travellers and pilgrims, in
Thayarammal Vs. Kanakammal (supra), the Court in para 16
of the judgment said:
16. A religious endowment does not create title in
respect of the property dedicated in anybody's favour. A
property dedicated for religious or charitable purpose
for which the owner of the property or the donor has
indicated no administrator or manager becomes res
nullius which the learned author in the book (supra)
explains as property belonging to nobody. Such a
property dedicated for general public use is itself raised
to the category of a juristic person. Learned author at p.
35 of his commentary explains how such a property vests in
the property itself as a juristic persons. In Manohar
Ganesh Tambekar v. Lakhmiram Govindram it is held that:
(ILR p. 263)
The Hindu law, like the roman law and those
derived from it, recognises, not only corporate bodies
with rights of property vested in the corporation
apart from its individual members, but also the
juridical persons or subjects called foundations.
(emphasis supplied)
1968
The religious institutions like mutts and other
establishments obviously answer to the description of
foundations in Roman law. The idea is the same, namely,
when property is dedicated for a particular purpose, the
property itself upon which the purpose is impressed, is
raised to the category of a juristic persons so that the
property which is dedicated would vest in the persons so
created. And so it has been held in Krishna Singh v.
Mathura Ahir that a mutt is under the Hindu law a juristic
person in the same manner as a temple where an idol is
installed. (emphasis added)
1875. In Sri Iswar Dashabhuja Thakurani & others Vs.
Sm. Kanchanbala Dutta & others AIR 1977 Cal. 473, a Single
Judge of Calcutta High Court in para 17 and 18 held:
17. A Hindu deity is a juristic person and has the
right to sue or be sued. There are preponderance of
decisions to the effect that a shebait has a right on his own
to institute and proceed with the suit on behalf of the
deities making other shebaits as parties to the suit. On the
death of Hari Mohan Roy, Rash Behari Roy became one of
the shebaits jointly with other defendants. So on his own
right Rash Behari Roy can, not only bring a suit but also
proceed with the suit on behalf of the plaintiff deities as a
prospective shebait in case of family endowment even
though not appointed by Court as guardian, can maintain a
suit on behalf of the deity. This is more so when a
prospective shebait brings a suit on behalf of the idol
making all other shebaits as parties to the suit. (AIR 1966
Pat 235, Ram Ratanlal v. Kashinath Tewari). In a case
reported in AIR 1931 Cal 776 (Girih Chandra v. Upendra
1969
Nath) it has been held that a person interested in a private
trust as a member of the family and who has further the
prospect of holding the office of shebait, can maintain a
suit challenging the alienation of debutter properties by a
shebait. A future shebait can maintain a suit to have it
declared that alienation made by a shebait is unauthorised
and does not affect the deity.
18. Rash Behari Roy is not only a shebait but also a
member of the settlor's family. In Nirmal Chandra v. Jyoti
Prosad reported in 45 Cal WN 709: (AIR 1941 Cal 562) it
has been held that a shebait as a party interested in the
endowment can bring an action. In the first place a co-
shebait can bring a suit on the principle that a suit on
behalf of the deity can be brought by some of the co-
shebaits that the rest are unwilling to join the plaintiff or
have done acts precluding them from doing so. In the
second place it can be justified on the ground that the deity
can sue through a next friend who has no interest adverse
to it and it is immaterial that such next friend happens to be
one of the shebaits.
In respect of a debutter in this country a founder or
his heirs may invoke the assistance of a judicial Tribunal
for the proper administration thereof on the allegation that
the Trusts are not properly performed.
1876. In Profulla Chorone Requitte Vs. Satya Choron
Requitte AIR 1979 SC 1682 the Court said :
Property dedicated to an idol vests in it in an ideal sense
only; ex necessitas, the possession and management has
to be entrusted to some human agent. Such an agent of
the idol is known as Shebait in Northern India. The legal
1970
character of a Shebait cannot be defined with precision
and exactitude. Broadly described, he is the human
ministrant and custodian of the idol, its earthly spokesman,
its authorised representative entitled to deal with all its
temporal affairs and to manage its property.
1877. Hon'ble Bose J in State of West Bengal Vs. Anwar
Ali Sarkar (supra), about development of Hindu Law, observed
in para 84:
Much of the existing Hindu law has grown up in that way
from instance to instance, the threads being gathered now
from the rishis, now from custom, now from tradition. In
the same way, the laws of liberty, of freedom and of
protection under the Constitution will also slowly assume
recognisable shape as decision is added to decision. They
cannot, in my judgment, be enunciated in static form by
hidebound rules and arbitrarily applied standards or
tests. (para 84)
1878. It was also observed that dedication in Hindu Law do
not require acceptance of property dedicated for a religious or a
public purpose.
1879. Learned counsels for the Muslim parties, however,
submit that in view of plethora of legal authorities it is now
beyond doubt that a Hindu idol, duly consecrated is a legal
person, but they further submit that same thing would not apply
to a place which has no such definite concept. The question
raised obviously is not only interesting but important and has far
reaching consequences. It has to be considered very cautiously
and carefully.
1880. So the question now is, whether a place can be a Deity
or not. Some of the authorities already referred, in our view,
1971
answer this question. In Ram Jankijee Deities & Ors. (supra)
the Apex Court in para 14 of the judgment referred to Padam
Puran and observed that a Swayambhu or self-revealed image is
a product of nature and it is Anadi or without any beginning and
the worshippers simply discover its existence and it do not
require consecration or Pratistha.
1881. Sri R.L.Verma, learned counsel for the defendant no.3
however submitted that a Swayambhu Deity is only one i.e. the
Salgram Shila which depicts Lord Narayana i.e. Vishnu
Bhagwan and nonelse. He could not dispute that Hindu worship
several places like Kedarnath (State of Uttarakhand); Vishnupad
temple at Gaya; rivers like "Sangam" at Allahabad (U.P.);
natural formation of snow as "Linga" at Amarnath (State of
Jammu and Kashmir); Fire Hills (Jawala Ji) in Himachal
Pradesh;m Goverdhan (Mathura (U.P.); etc. as Swayambhu
Deity.
1882. How and what manner the people should believe a place
or an image having supreme power to cherish the wishes of
worshipper has to be considered from the belief of the
worshippers and cannot be placed in a straight jacket formula. In
para 15 of the judgment in Ram Jankijee Deities & Ors.
(supra), the Apex Court said that the question must be decided
with reference to the view of the class of people who take part in
the worship. If they believe in its religious efficacy, in the sense
that by such worship they are making themselves the object of
the bounty of some super-human power, it must be regarded as
"religious worship". It further says that if the public or that
section of the public who go for worship consider that there is a
divine presence in a particular place and that by offering
worship there, they are likely to be recipients of the blessings of
1972
God, it has the essential features of a temple. In para 16 of the
judgment the Apex Court further observed that if the people
believe in the temples' religious efficacy no other requirement
exists as regards other aspects. The Court observed that it is not
a particular image which is a juridical person but it is a
particular bent of mind which consecrate the image. There is no
apparent reason to deny the status of Deity to a place which is
worshipped by a large section of people as sacred and pious
being the birthplace or the place of manifestation which
normally is the term used when according to Hindu belief the
Lord of Universe takes natural form i.e. human being or
otherwise for the benefit of the people at large. It is in this
context ten incarnations of Lord Vishnu are treated.
1883. The above discussion and the authorities show the
concept of idol, Deity, religious endowment, their legal status,
manner in which they are worshipped as also the concept of
temple etc., as it is written, preached and practised by Hindus as
per their ancient scriptures, and also as considered and
simplified by various Courts from time to time. This is how
plethora of authorities are there, some of which, on various
aspects, we have referred hereinabove. Various terms like
"idol", "deity", "temples", "Math", "religious endowments" etc.,
though in one or the other manner have interconnection and
sometimes integrally woven also but still they have different
context, concept, meaning etc. altogether. Hindu law
comprehends various notions of all the above concepts and
much more. There are several shades and nuances of these
terms. They are not mere terms of art but are living concept and
a huge mass actually live and virtually has merged and absorbed
itself therein. These terms are their identity, perception, source
1973
of life, inspiration and zeal to live and what not. It is really very
difficult to concise them in a few words or norms. While
discussing Issue No. 17 (Suit-3), we have already dealt with the
terms "religion" and "Math" but to some extent, it is true that
confining the word "religion" in a definition is one of the most
arduous and complicated task.
1884. One of the basic thing in religious experience is a
unique feeling, a solemn reverend attitude. It denotes the insight
conviction of human being that there is something entirely
transcending everything human. Core of the religion is "belief",
and, the manner of expressing that belief, i.e. overt
performances, sometimes called "acts of worship". The acts of
worship do vary. This variance is denoted sometimes in terms of
different religions or faith like Hindu, Muslim, Christian etc.
and sometimes different sects within the same group of religion.
1885. There is no certainty in the ancient Hindu scriptures as
to whether the concept of worship in the religion commenced
with the natural forces, like sun, air, water, sky etc. or it was
contemporary with the image worship. One of the set of scholars
believe that there was no idol worship in Vedic days, but there is
another set of scholars who have their own reservations about
the said opinion. We have referred to certain Brahmin literature
which contain references of idols and temples even in Vedic
days. This, however, is a tentative opinion and need not be taken
as a final adjudication. We leave it for further research by
scholars and geniuses to go in further details and find out correct
version. For the present case, we do not find that this aspect will
make any impact on issues concerned. For our purpose suffice it
to hold that image (idol) worship exist since before Christ and
sufficient evidence exist therefor.
1974
1886. We do not find any parallel to the dispute before us
where a particular 'Place' is claimed to be a deity, a juridical
personality in the shape of an undefined idol, by itself a temple,
for the reason of belief of Hindu public that Lord Rama,
incarnation of Lord Vishnu, was born thereat and this divine
manifestation of the Supreme Lord at a particular place make it
sacred and due to belief of Hindu people that God resides there
and the 'Place' possesses all such divine and supreme power so
as to cherish the wishes of the people and salvation to those who
come to worship and Darshan of such place. It is stressed that
this itself is sufficient to make the 'Place' a deity and satisfy the
requirement of the legal personality. The proposition appears to
be quite simple but if we put on tests with the precedents,
religious and legal, it become difficult to be answered
simplicitor.
1887. What would be the meaning of word Place and what
shall be its extent? Whether it would be a small place which
normally is required for birth of a human being or whether it
will cover an area of the entire room, house, locality, city or
sometimes one can say even more than that. We know that
Hindus worship rivers and lakes like, Ganga, Yamuna,
Narmada, Mansarovar etc. They are very sacred and pious. At
several places a number of temples etc. on the bank or near the
said rivers have been constructed. The very origin of such
sacred rivers is also a place of worship for Hindus like,
Gangotri, Yamunotri (State of Uttaranchal) and Amarkantak
(for river Narmada). Can it be said that the entire length these
rivers cover would constitute and satisfy the requirement of a
"juristic personality". It is not out of place that at several places,
the temples of Ganga, Narmada, Yamuna etc. have been
1975
constructed and they are religious endowments in their own
rights, enjoy all such legal rights and obligations etc. as are
available to such Endowments. Similarly certain hills or
mountain or hilly terrains as such are treated to be the places of
worship like, Kailash, Gobardhan, Kamathgiri etc.
1888. When asked theses questions, learned counsels for
Hindu parties also felt difficult to reply. Sri M.M.Pandey
submitted that in the present dispute, it is the belief of the Hindu
people that the fort of King Dashrath situated at Ayodhya
included the part of the building wherein Lord Rama was born
according to Hindu belief and the disputed area covered that
house. It is believed that it is this place which is so pious and
sacred for Hindu people being the birthplace of Lord Rama and,
therefore, in this particular case, it is not necessary to go into
larger question since it is not the claim of the Hindu parties that
the entire city of Ayodhya or the entire locality is birthplace of
Lord Rama. He was born at Ayodhya is a well known fact. In
Ayodhya, it is the disputed place where the Lord of Lords was
manifested in the form of natural person and, therefore, it is
believed to be the birthplace of Lord Rama by Hindus for time
immemorial and they visit it to worship and Darshan. This
satisfy the requirement of a "deity". He submits that "deity" in
the name of birthplace of Lord Rama is a legal person
considering the concept of legal personality of Hindu deity as
discussed above. It is evident that it is a place where the public
visit it as a matter of right, offer Darshan, Pooja etc.
continuously and from time immemorial.
1889. The submission is not wholly without substance. The
relevant evidence need be analyzed in the light of the principles
in general which discern from the discussions above, which in
1976
brief may be culled out as follows.
1890. There exist a Supreme Being which controls everything
and fulfills the wishes and salvation to the human beings.
Hindus believe that the Supreme Being manifest himself in
human form (incarnation) with all the powers of Supreme Being
subject to self imposed human limitations. This reincarnation or
manifestation is known as "Swayambhu". The place of
reincarnation is treated sacred. This kind of belief that the place
become sacred which relates to birth or some other activities of
a Holy sole is common in other religions also like, Mekka in
Islam, Bethlehem/Jerusalem in Christianity.
1891. The concept of deity is deeply embedded amongst
Hindus. The Hindu Dharma has elevated the concept of
sacredness into an object of divinity fit for worship. However,
this is only symbolic. A Hindu does not worship the idol or the
material body but it is the eternal spirit of the deity and the
image is a mere symbol. The incarnation of Mantras peculiar to
a particular deity causes manifestation of a deity. The idols or
images which are man made are consecrated with the spirit of
Supreme Being through Vedic rights. The process is known as
"Pran Pratistha". The Supreme Being is bodyless, shapeless and,
therefore, through the concept of images it is visualized and
worshipped.
1892. The deity, i.e., the consecrated image or the
Swayambhu deity has a juridical status. Law recognises its
power of suing and being sued. This power can be exercised by
the person who is entrusted with its care and management
normally called "Shebait". In the context of Shebait the deity is
treated to be an "infant heir" or "with the status of a minor"
since it cannot act on its own.
1977
1893. The deity is a class by himself conceived of a living
being and is treated like a master of the house. The property
dedicated to a deity belongs to it and not to Shebait though is
managed by Shebait as a trustee or its manager who has no
otherwise right into property except that it can be managed for
the benefit of the deity.
1894. A temple is the house of the deity. Even if the image is
broken or otherwise get damaged, the Supreme Being continued
to exist and by replacement of the image that continuity is
maintained symbolically. A temple and deity is res extra
commercium. Presence of idol is not decisive to ascertain the
status of a temple.
1895. The worshippers are the beneficiaries though in a
spiritual sense.
1896. If the public goes for worship considering that there is
a divine presence and offer worship thereat believing that they
are likely to be the recipient of the bounty of God then it satisfy
the test of a temple. Installation of an idol or the mode of
worship are not the relevant and conclusive test.
1897. It leaves no doubt in our mind that according to the
well recognised and accepted concepts of Hindu Law in regard
to deity and idol, it cannot be disputed now that an idol is a
juridical person, can sue and be sued, can acquire property and
deal with it in a manner it likes though obviously this user is
through a Shebait or the person who takes care of the idol since
it cannot act on its own not being a natural person.
1898. Besides, to constitute an idol, a deity, the concept of
Pran Pratishtha and that too in a particular manner is not always
conclusive and is not the only test. In the case of a "Swayambhu
deity", the Shastrik procedure of Pran Pratishtha as such is not at
1978
all required. A deity can be in the form of an idol or even in
natural form like stone, wood, earth, river, mountain etc. The
only requirement in our view would be that in case of place, it
must be ascertainable as to what place is believed to be sacred
and pious by the worshippers.
1899. The pivotal requirement is that the Hindus must
believe the existence of supreme power therein, must be
worshipping it with the belief of getting of attainment and
fulfillment of wishes due to the divine powers existing thereat
and this belief must have continued for time immemorial and
may be in the form of a continued custom, tradition etc.
1900. The learned counsels appearing for various Hindu
parties unanimously contended that the place in dispute has
always been believed to be the birthplace of Lord Rama where
Lord Vishnu manifested himself in human form as incarnation
and, therefore, it is a place which possess the supreme and
divine powers capable of fulfilling of wishes of the worshippers
of mere Darshan thereof and visit the place. They submit that
since the place being the birthplace of Lord Rama is most pious
and with full of divinities to Hindus, this has always been
visited by Hindus for Darshan and worship as such, hence the
requirement of any idol etc. thereat of Lord Rama cannot be
insisted upon. Mere placement of an idol thereat is nothing but a
symbolic act of Hindus to provide more concentration for
worship etc. but the absence of an idol shall not destroy the
status of deity to the "Place" being divine and holy to Hindus.
The Place is a deity and it does not require observance of
Shastrik procedure of 'Pran Pratishtha' since this divinity of
'Place' makes it a "Swayambhu deity" capable of worship by the
believers. This status is non destructible, permanent, and can
1979
neither be altered nor otherwise be damaged or diminished or
extinguished by an act of human being. It is a perennial and
continued status of the Place concerned.
1901. The evidence to show that the Hindu people used to
visit the fort of Lord Rama and its nearby area believing it to be
the birthplace of Lord Rama find mention with number of books
of authorities, some of which we have already discussed in the
course of discussing issues pertaining to "date of construction"
etc. Much more we shall discuss while considering issue
pertaining to birth place, existence of temple etc. But here some
evidence necessary for the issues in question has to be seen.
1902. Goswami Tulsi Das in his "Ramcharitmanas" has
referred the observance of a grand festival on the day of birth of
Lord Rama at Ayodhya. The worship by Hindus in the place
called fort of Lord Rama has been referred in the Travellers
Account of William Finch.
1903. Tieffinthaler has specifically observed the manner in
which the Hindu people used to worship at the place in dispute,
i.e., by laying prostrate and making 'Parikrama'
(circumambulation) around the building. This is a unique feature
of this case. At the time of Tieffinthaler admittedly the disputed
building had come into existence and was standing thereat. It
was known as a mosque having been built by a muslim ruler.
Tieffinthaler has termed it as "a muslim temple with triple
domes". However, there existed a Bedi, i.e., the cradle for which
the Hindus' believe that there was a house where Lord Vishnu
manifested and reincarnated in the form of Ramlala. Then he
mentioned, "however, there still exists some superstitious cult in
some place or other. For example, in the place where the native
house of Ram existed, they go around 3 times and prostrate on
1980
the floor." After about hundred years by which time the
premises in dispute was divided by an iron grilled wall with an
indication that the muslims may worship in the inner courtyard
and the Hindus may continue to worship in the outer courtyard,
in actuality the Hindus continue with their practice of entering
the inner courtyard and worshipping thereat in one or the other
manner. This is evident from some documents which we are
discussing hereinbelow. There is no evidence on record to show
that from 1856 to 1949, at any point of time there was a
restriction effected in such a manner that only the people of one
faith would enter the inner courtyard and not all. It is the
admitted case of muslims and their several witnesses had also
admitted that till 22
nd
December, 1949 the doors of the iron
grilled dividing wall were never locked. There is nothing on
record to show that by posting a guard or otherwise the entry of
Hindus was restricted in the inner courtyard. Even with respect
to the contention of offering of Namaz, the evidence, which we
will be discussing later on, will show that from 1855 till 1934
atleast there is no evidence whatsoever that Namaz was actually
offered in the inner courtyard of the disputed site. So far as the
outer courtyard is concerned, it is virtually admitted by the
muslim parties that there existed atleast three non Islamic
structures which were visited by Hindus and they also offered
worship thereat. Tieffinthaler has specifically referred to the
place in dispute observing the visit of Hindus thereat. Various
gazetteers, survey reports etc. which we have referred earlier
while discussing the issues pertaining to date of construction
also are similarly worded.
1904. Let us proceed to ponder over some other evidence.
One of the document is an application dated 30.11.1858, Exhibit
1981
20 (Suit-1), submitted by Syed Mohammad, claiming himself to
be Khatib of Janamsthan mosque, i.e., the disputed building. It
says as under:

- i- - -ii i ri lii i rni ii
r r i n i (Hindi Transliteration by the
Parties)
"Previously the symbol of Janam had been there for
hundreds of years and Hindus did puja." (E.T.C)
1905. This document refer the above creation in the premises
inside the dividing wall. The existence of divided premises is
clearly mentioned and one Chabutara in outer Courtyard was
already there. The context shows that it talks of creation of a
Chabutra under/near the dome structure and open land in its
front. This document is admitted to plaintiffs (Suit-4) also. This
is the oldest individual and private document which throws light
on the spot situation as prevailed in November 1858 and prior
thereto of the disputed site and building. There is nothing to
contradict it. It is thus clear that even the inner courtyard had
some Hindu religious signs/symbols therein and it used to be
worshipped by Hindus for last several hundreds years.
1906. As already said, P.Carnegy in his report published in
1870 has observed that both worship in the disputed building.
This also fortify the fact that Hindus not only used to go inside
but were also worshipping in the disputed premises.
1907. The dispute pertaining to this place amongst the two
communities is centuries old. Record, prior to 1860 AD, atleast
fortify, continuance of such dispute. In fact, it could not have
been disputed. Several witnesses of the plaintiffs (Suit-4) had
1982
admitted that the Hindus used to come to the disputed place for
worship believing it the birthplace of Lord Rama.
1908. Record of Suit-1885 shows that the defendant no. 2
therein, i.e., Mohd. Asghar, who contested the said suit in his
capacity as Mutawalli of the disputed building (alleged waqf), in
his own written statement admitted that the Chabutara
constructed in the outer courtyard on south east side of the
disputed building used to be attended by Hindus for
worshipping, believing it to be the birthplace of Lord Rama. No
doubt, he also pleaded simultaneously that the said construction
was unauthorised and impermissible but the fact remains that
existence of Chabutara, according to the pleadings, had
continued at least since about 1855 and this position remain
undisturbed till 6
th
December, 1992. The premises of Mosque, as
depicted by letters ABCD in Suit-4, thus had a structure, non-
Islamic which has been worshipped by Hindus for the last
atleast one and half century.
1909. A place if identified by a name given to the deity by its
worshippers/believers and if it can be shown that it relates to a
divine or otherwise important phenomena related with religious
matters making it a pious and important religious place, it can
be held 'deity' and thereby satisfy the requirement of being a
'juridical person'. Whether such a place reflected by the known
name of the deity is smaller one or larger one, or, what is its
extent, is a different matter but a deity can be known by its
name which its followers/worshippers have given to it. In the
present case the plaintiff no. 2 (Suit-5) is known as "Asthan Sri
Rama Janam Bhumi, Ayodhya". The Hindu believers and
worshippers who go and worship the said place identify it by the
name of Lord Rama's birthplace and this identity ascertain and
1983
admits no doubt in the mind of those who belief, follow and
worship. That being so, we find no reason in denying the status
of deity to the said place and the consequential juridical
personality upon it. It cannot be disputed that property can be
dedicated in the name of the plaintiff no. 2 which can be utilized
for the benefit of the said deity. This of course is subject to the
issues decided in favour of Hindu parties which pertain to the
site in dispute whether is or believed to be the birthplace of Lord
Ram for time immemorial and is being worshipped accordingly.
1910. Whether the idol or deity, worshipped by Hindus, was
consecrated or not, has to be seen from the point of view and
belief of those who worship the idol and not others who had no
such belief. If an idol is faithfully recognised by all those who
believe the idol of a particular deity, it is a deity. In the present
case idol of Lord Rama, and its worship as such satisfy the
requirement of a validly consecrated deity. No further inquiry
need be gone into. We agree with the views expressed by the
Division Bench in Gokul Nath Ji Maharaj (supra) that the
question whether a particular idol is or is not duly consecrated
must depend upon the religious faith and belief of its followers.
We are also fortified in taking the above view from the Apex
Court's decision in Ram Jankijee Deities (supra) where in para
15 it has observed, while quoting and approving the two
decisions of Madras High Court, that the test is not whether it
conforms to any particular school of Agama Shastras. The
question must be decided with reference to the view of the class
of people who take part in the worship. If they believe in its
religious efficacy, in the sense that by such worship they are
making themselves the object of the bounty of some super-
human power, it fulfill the requirement. If the public or that
1984
section of the public who go for worship consider that there is a
divine presence in a particular place and that by offering
worship thereat they are likely to be the recipients of the
blessings of God, it satisfy the requirement of a deity. In fact the
Apex Court in para 16 of the judgment in Ram Jankijee Deities
(supra) went to observe that the people, if believe in the
religious efficacy, no other requirement exists as regards other
areas. It is not a particular image which is a juridical person but
it is a particular bent of mind which consecrate the image.
1911. In Shiromani Gurdwara Prabandhak Committee,
Amritsar Vs. Som Nath Dass (supra) the Court virtually set out
easier guidelines as to how an untangible image or institution or
otherwise can be decided whether a juristic person or not
particularly in religious matters. The Court observed that the
very words "juristic person" cannot get recognition of an entity
to be in law a person which otherwise it is not. In other words it
is not an individual natural person but an artificially created
person which is to be recognised to be in law as such. When a
person is ordinarily understood to be a natural person, it only
means a human person. Essentially every human person is a
person but in the history of the world the concept of different
notions had different times. In sub-countries even human beings
were not treated person in law. Under the Ancient Roman Law a
slave was not a person. He had no right to a family. He was
treated like an animal or chattel. In French colonies also, before
slavery was abolished, the slaves were not treated to be legal
persons. They were later given recognition as legal persons. The
recognition was given later on through an statute. In United
States also African-Americans had no legal rights though they
were not treated as chattel. The Court also quoted the following
1985
passage from Roscoe Pounde's Jurisprudence, Part, IV, 1959
Edition, page 192-93:
In civilized lands even in the modern world it has
happened that all human beings were not legal persons. In
Roman law down to the constitution of Antoninus Pius the
slave was not a person. He enjoyed neither rights of family
nor rights of patrimony. He was a thing, and as such like
animals, could be the object of rights of property. ... In the
French colonies, before slavery was there abolished, slaves
were put in the class of legal persons by the statute of
April 23, 1833 and obtained a somewhat extended
juridical capacity by a statute of 1845. In the United
States down to the Civil War, the free Negroes in many of
the States were free human beings with no legal rights.
1912. The evolutionary development of a socio-political-
scientific system made it necessary to consider certain non-
human beings as person which were termed as legal person or
juristic person etc. Having said so, the Apex Court in above case
further observed that a juristic person like any other natural
person is in law also conferred with rights and obligations and is
dealt with in accordance with law. The entity acts like a natural
person but only through a designated person, whose acts are
processed within the ambit of law. When an idol was recognised
as a juristic person it was known that by itself it cannot act. Like
the case of a minor where a guardian has been appointed, so in
the case of an idol, a Shebait or manager is appointed to act on
its behalf. In that sense, relation between an idol and Shebait is
akin to that of a minor and a guardian. As a minor cannot
express himself, so the idol, but like a guardian, the Shebait and
manager have limitations under which they have to act. The
1986
Court observed that an idol is a juristic person because it is
adored after its consecration in a temple. The offerings are made
to an idol. The followers recognised an idol to be symbol of
God. Without the idol the temple is only a building or mortar,
cement and bricks which had no sacredness or sanctity for
adoration.
1913. Let us apply these tests in respect to the plaintiffs 1
and 2 in the case in hand. Sri Ramjanambhumi, the place in
dispute is visited by Hindus under the faith and belief that Lord
of Universe Sri Vishnu appeared in his Chaturbhuj Roop before
Queen Kaushalya one of the wife of Kind Dashratha at a
particular date and time mentioned in Balmiki Ramayan as well
as Ramcharitmanas of Goswami Tulsi Das. On the prayer
made by Kaushalyaji Sri Vishnu took the form of Sri Ramlala
and manifested himself in human form. The place, therefore,
bear the spirit and power of Lord of Lords and it is believed that
by visiting the place having its Dashan, i.e., adoration and
worship one will get all happiness and fulfilment of his wishes.
It will confer upon him all merits as well as salvation. The visit
to birthplace itself has been said to be sufficient to confer all the
merits and salvation upon the believer. It is with this faith and
belief it is said that the Hindus are visiting the birthplace of
Lord Rama at Ayodhya since time immemorial and despite of
several adverse situation the belief and worship has continued
unrelented.
1914. It is well settled that faith and belief cannot be judged
through any juridical scrutiny, its a fact accomplished and
accepted by its followers. In fact this faith necessitated the
creation of a unique to be recognised as a juristic person. The
juristic person, in view of the above discussion, it is evidence,
1987
cannot be roped in a defined circle. With the changing thoughts,
changing needs of the society fresh juristic personalties were/are
created from time to time. In the context of Guru Granth Sahib
whether it is a juristic person or not an argument was raised
though an idol can be recognised to be a juristic person but not a
temple and on the same party neither a Gurudwara can be
treated to be a juristic person nor Guru Granth Sahib which is
only a sacred book. Repelling this argument the Apex Court in
Shiromani Gurdwara Prabandhak Committee, Amritsar Vs.
Som Nath Dass (supra) said that Gurudwara or Guru Granth
Sahib cannot be equated with an idol. Sikhism does not believe
in worshipping any idol but that does not mean that Guru Granth
Sahib in order to treat to be a juristic person should be equated
with an idol. When belief and faith of two different religions are
different there is no question of equating one with the other. If
Guru Granth Sahib by itself could stand the test of its being
declared as such, it can be declared to be so. The Court peep
into the fundamentals of Sikh religion though as a matter of
caution observed that to comprehend any religion fully may
indeed be beyond the comprehension of anyone and also beyond
any judicial scrutiny for it has its own limitations. But then it is
added with that silver lining could easily be picked up from the
tenets and dictates of the concerned religion. In the Sikh religion
the Guru is revered as the highest reverential person. The first of
such most revered Guru was Guru Nanak Dev followed by the
succeeding Gurus and the 10
th
being the last living Guru Gobind
Singh Ji. It is believed that Adi Granth or Guru Granth Sahib
was compiled by the fifth Guru Arjun and it is this book that is
worshipped in all the Gurudwaras. Besides being read, people
go down on their knees to make reverential obeisance and place
1988
their offerings of cash and kind on it, as it is treated and equated
to a living Guru. The composition of Gurus were always
considered sacred by their followers. Guru Nanak said that in
his hymns the true Guru manifested himself, because they were
composed at His orders and heard by Him. The fourth Guru,
Ram Das said, "look upon the words of the true Gurus as the
supreme truth, for God and the Creator hath made him utter the
words." When Guru Arjun formally installed the Granth in the
Hari Mandir, he ordered his followers to treat it with the same
reverence as they treated their Gurus. By the time of Guru
Gobind Singh, copies of the Granth had been installed in most
gurdwaras. He asked his followers to turn to the Granth for
guidance and look upon it as the symbolic representation of the
ten Gurus. The Granth Sahib is the central object of worship in
all gurdwaras. It is with this faith that it is worshipped like a
living Guru. This faith and conviction results, when installed in
a Gurudwara to turn in a sacred place of worship. Sacredness of
Gurudwara is only because of placement of Guru Grath Sahib in
it. It also held that a restrictive meaning to the words juristic
person ought not to be given otherwise it would erase the very
jurisprudence which gave birth to it.
1915. Applying all these observations to the two plaintiffs
we find no hesitation to observe that every condition or
ingredient is fully satisfied so as to confer legal personality upon
the two. In respect to the plaintiff no. 1 the defendants, pro-
mosque parties, have no dispute that an idol duly consecrated
would constitute a legal person and, therefore, their only
objection is that the idol in question being not consecrated in
accordance with the Shastrik laws is not a deity constituting a
legal person. With respect to the plaintiff no. 2 their objection is
1989
much stronger and virtually travels on the same causes as were
argued in Shiromani Gurdwara Prabandhak Committee,
Amritsar Vs. Som Nath Dass (supra) to outclass Guru Granth
Sahib from the status of juristic person. We have already
observed much with respect to the plaintiff no. 1 which in our
view suffice to constitute it a legal person capable of
maintaining a suit through a Shebait or a next friend as the case
may be. The procedure of filing the suit we shall discuss later on
in detail. So far as the place is concerned, it is almost admitted
by most of the witnesses of pro-mosque parties, i.e., of plaintiff
(Suit-4) that Hindus regularly visit Ayodhya for worshipping the
birthplace of Lord Rama and several fairs are also held thereat
periodically wherein a very large number of people across the
country and even abroad come and participate. It is also
admitted by some of the pro-mosque parties witnesses that the
disputed place used to be visited by Hindus believing it to be the
birthplace of Lord Rama. The manner of worship and Darshan
has been explained by the witnesses produced by Nirmohi
Akhara as well as the plaintiff (Suit-5) in one or the other ways.
It is true that most of the part of the evidence of most of the
witnesses is either irrelevant hence inadmissible or otherwise is
not creditworthy which we have pointed out or shall be referring
later as the case may be but that does not mean that the entire
statement of a witness for this reason can be rejected. It is
always permissible to a Court to take out the part of the
statement of a witness which is believable and also sometimes
when the statement amounts to an admission on behalf of party
who has produced that witness, i.e., the part of the evidence of a
witness which is against the party in whose favour the witness is
deposing.
1990
PW-1, Mohd. Hashim
zz,zs l-, ss i l -ii | | r ; lr
i n i- - ilrn i i - -i i| -l- rn
r | ( o)
The Hindus called the place attached on 22
nd
-
23
rd
December, 1949, Ram Janam Bhumi and the Muslims
call it Babri mosque. (E.T.C.)
-i - -ii l rl-n ini r | nr
i i ini i- i lr i l -r- ini r|( )
As Mecca holds importance for Muslims, similarly
Ayodhya holds importance for Hindus because of Lord
Rama.(E.T.C.)
lr -ni ir ii l i n i| i i - i
l in r|( /s)
People from abroad also come to have darshan at
Ayodhya. (E.T.C.)
r -| r l i i lr i i n|i -i r| . . . .
.r -| r l zz l- ss ; i l- i - -i -
- nili r , lr in il i i in r|
( zo)
It is true that Ayodhya is a place of pilgrimage for
Hindus. . . . . . . . . . It is true that from 22
nd
December,
1949, Hindus come from within the country and from
abroad to have darshan on this land, which is disputed in
litigation.(E.T.C.)
lr in lr -ni r i - rn r l ii
- nl r |( zs)
Hindus live in every corner of Hindustan. Ayodhya
is a holy place for them.(E.T.C.)
r i| -| r l ; l -i i lr in ; i ii
r r l -i i r i i| i| r| i r i | l -i i|
1991
r, li - r i i | l -i i| iil- ri in| r|
ii l -i i n| l - rin| r , . . . . r l -i
l lr i n n r r | | -n r l r ; i- -
i l- -n n r i l| i r n r | r i| -| r
l ; -ii lr in ~i i| n r | ii n, ,
il i n ~i n r r -i ri iln -r| - ini r|
( )
It is also true that Hindus have been doing this
parikrama (circumambulation) for hundreds of years.
There is also a parikrama known as 'chaudah kosi'. There
is also a 'chaudah kosi' parikrama in doing which this
'paanch kosi' parikrama also gets done. These two
parikramas are done on the interval of two- three
days. . . . . . . . . . . . Only Hindus do these parikramas. It is
their understanding whether they do so considering it to be
Ram Janam Bhumi or due to any other reason. It is also
true that Hindus also observe 'kalpvaas' on these
occasions. Saints, seers, elderly persons and others observe
'kalpvaas'. This festival is celebrated in the month of
Kartik. (E.T.C.)
PW-2, Haji Mahboob Ahmad
r -| r l i- | | i;i ii | r |
r n i -i r n i i i lr in liln
l i | -ilrn r i n r i | i|
i i r | r i i -i -ii i | -ilrn
i | r nii ni - -ii -l- n | nr r|
( so)
It is true that Ram Chandra's birthplace is Ayodhya.
From when this turmoil has erupted, the Hindus from
nooks and corners of the country call and worship the
disputed premises as his Janam Bhumi. Otherwise, the
1992
whole of Ayodhya is theirs. Earlier, they called the Kanak
Bhawan and the Janam Sthan as his birth-land. It was told
that Janam Sthan is at another place, separately from the
mosque. (E.T.C.)
i | l -i i i - r . . . . . .i- ni l i
- ri n| r | l -i i| rin| r i| in ir in r i|
i n ir ri n r| ( o)
Panchkosi Parikrama covers the whole of Ayodhya.
. . . . . . . It usually takes place in winters. The Parikrama
attracts a crowd. A number of people come from outside. A
number of people hail from the city. (E.T.C.)
PW-3, Farooq Ahmad
ii - lr - rin r l i--|, l -i -i
i i - i, ; - i lr in ;- -i rin r in -l-
i| i ii n r | ; n i i | n r n lr
i - l-- i n i| in r | ........... - n i| r -r
i n ni i in i | ( zs)
Hindu fairs are held at Ayodhya such as
Ramnavami, Parikrama Mela and Sawan Mela. Hindus
gather in these fairs. They also come over to see the
mosque. Many Hindus and Muslims used to come over to
see this platform (Chabutara). .......... Even on occasion of
the fairs, people of all religions used to come to see the
platform (Chabutara). (E.T.C)
PW-4, Mohd. Yaseen
r lr i n i - nil ; nr i
ini i- - -ii ni n rin | ( /o )
In my view, the Hindus must have had the darshan
of this place as birthplace of Lord Rama.(E.T.C)
i r |i r l r | i- i - -ii r
(i ri l i |i ii r ) lr in ; nr i
1993
i i l -n ;| i n r| ( /)
It is their belief that it is the birthplace of Sri Rama
(stated on his own that their belief lies with them). The
Hindus revere this place as sacred and pious.(E.T.C)
PW-7, Hasmat Ulla Asnsari
- i i i - li| r | ri i i - i rini
r -li n i - i ri ni r li- i| -i nni r
n -r| - i--| i -i i| rini r| r| rn r l
i--| i - i ini i- - l - -ii ini
r| -i ir in i| ii - in r| . . . . . ri
l -i i| ri n| r| i l -i r i i| i i r
ii|| nr nr lr i n in r i ; -i l -i i|
n r | ( /s)
I am a native of Ayodhya. Sawan Mela takes place
there and so does Mani Parvat fair. A fair is also organised
at Vashishtha Kund. Ram Navami fair too takes place in
the month of Chaitra. It is said that Ram Navami fair is
organised to commemorate the birth anniversary of Lord
Rama. People even from outside come to Ayodhya on that
occasion. . . . . . . . . Circumambulation also takes place
there. There are two circumambulations, one is called
Panchkoshi and the other Chaudahkoshi. Hindus come
from different places and also do circumambulations on
this occasion. (E.T.C.)
PW-8, Abdul Ajij
r -| r l i i lr i | n|i -i| r | r n
lr in ri in r | ( ss)
It is true that Ayodhya is a pilgrimage of Hindus.
Hindus come here from far off places. (E.T.C)
PW-9, Syed Akhlak Ahmad
r -| r l i i lr i i n|i -i -ir r
1994
i i - rii -l ni r | ( s)
"It is true that Ayodhya is famous as pilgrimage of
Hindus. There are certainly thousands of temples in
Ayodhya." (E.T.C.)
- ni r l lr rin r |i in r l ii
i - -ii r i i - |i- -il- i i i --ii
-in r| ( z)
I hear that Hindus have the belief that Ayodhya is
his birthplace. They believe Sri Ramjanmbhumi at Ayodhya
to be his birthplace. (E.T.C)
ii - r i iri | i i | l -i ri n| r |
r -| r l ;- iii lr n i iin n r | -ii| i n i|
ri n r i i lr-i i| i| i n in r|
ii - i--| i -i rini r| iii - n|i i|
i i in r i ini | i- i - -in r i -li i i|
ii ini r | i -r| - n i -i i| rini r| r i|
i -i r| iii - lr i n ir in r | ; ii i|
n| r i r| iiii ni i| ir i| lr i| n|i
l in in rn r| ( s)
"'Chaudahkosi' (fourteen kose, one kose being equal
to two miles) and 'Panchkosi' (five kose)
circumambulations are performed every year in Ayodhya.
It is true that lakhs of Hindus participate in them,
barefoot. (They) include local people as well as people
coming over from other parts of the country.
Ramnavami fair is held at Ayodhya. Lakhs of
pilgrims come to Ayodhya and celebrate the birth of Lord
Sri Rama and the temples are also decorated. The 'Jhula'
fair is also held in the month of Shravana. It is also a big
fair. Lakhs of Hindus come from outside. Besides these,
usually almost everyday many Hindu travelers keep coming
1995
from outside for pilgrimage." (E.T.C)
- i r l lr in ; | i lr-i i ini i-
i - -ii i ni n r -in r| ( so)
"I have heard that the Hindus consider this central
part to be the birthplace of Lord Rama & sanctum
sanctorum." (E.T.C)
PW-12, Ram Shankar Upadhyay
ini i- i r- ini li i iiin ni -in r|
(c)
We regard Lord Rama as a manifest incarnation of
Lord Vishnu. (E.T.C.)
l i-nlni r r l iii n|i r |
(/)
But it is certainly a reality that Ayodhya is a site of
pilgrimage. (E.T.C.)
i l r- in| r| - ini i- i i li|
( /)
Since I am a Sanatani ( orthodox Hindu), I had a
sight of Lord Rama. (E.T.C.)
-| ii| - liln -i i + ni n i- -
-ii ii ii - i; i - l i nr i- - il-
i- r| r | (rz)
To my knowledge, except for the disputed site and
Rama Janam sthan mentioned above, there is no temple or
place in Ayodhya in the name of Ram Janam Bhumi."
(E.T.C.)
ini i- i - n | i- -| i r i ii ;l
i - l -i l r -i ri ni r| (rz)
Lord Rama was born on Ramnavami of Chaitra; so,
1996
this fair is held to celebrate his birth anniversary.
(E.T.C.)
r -| r l ii i -r- ;l r l ri -i i
ii -n- | i- i - r i ii| ( rs)
It is correct that Ayodhya holds importance because
Maryada Purushottam Sri Rama( Supreme Being Sri Rama
epitomizing dignified behaviour) was born there.
(E.T.C.)
r -| r l liln -i -ir~i i-i - - l-in ii
......... i- i i li ri n r| -i r~ i i- i-i - r i
iii i-| i li ri ni r .......... - ;~- ni ; -ir~
i i-i - i- r| ii ini r| ( rs)
It is correct that the disputed site was situated in
Ramkot Mohalla. ........ Kot means fort. The name of the
Mohalla is Ramkot. It may literally mean the fort of
Ramji ........ To my knowledge, this Mohalla is known only
by the name of Ramkot." (E.T.C.)
PW-13, Suresh Chandra Misra
n ii iii r n ini r l | i- i -
i i - r i| ( sc)
On the basis of treatises it comes to knowledge that
Sri Rama was born in Ayodhya. (E.T.C.)
- n r lnii i| i r i i i i| li l
|i- l -ii i r i| i ni - n r nii l -
-ii i| liln -ii | i- i - r i ii|
( c)
I had a curiosity and also tried to know at which
place Sri Rama was born. People told me that Sri Rama
was born on a particular place, that is, the disputed site.
(E.T.C.)
1997
i i n ini |i- | iiii n r i n ii i
| --i| -in r `
-n r -| r| ( //)
Question:- Do those worshipping Lord Sri Rama regard
Ayodhya as his birth-place?
Answer:- It is true. (E.T.C.)
PW-23, Mohd. Qasim Ansari
r -| r l li| ii| i | r -n ii i
r i| r n | iini i | ii -i; | ln|,
l-n nr r, ri r i i | r ii - lii -
r| ( s)
It is true that many Sufis came to India during the
reign of Khilji and Lodhi dynasties and even earlier.
Khwaja Moinuddin Chisti was a resident of a place called
Chist. It is perhaps in Central Asia.(E.T.C.)
i | l -i i - i rin| r r ii l -i
iln -ir - rin| r ii iln - i i rin| r r
ri r| r l ; -i i i - ii| -i nni r| r
ri r| r l iii | nii - n|i i| i i in r |
. . . . . .iii i n i | -in l -i n r | r ri r|
r l i n|i i| l -i n r r -in |, i i
i--il- i i i| n r| . . . . . .- i r i | l -i
i - i| ini r|| ; i r i| l -i -in - ii i
ii in r r ri i| r| r l ir i | l -i i|
iln -ir - rin| r| r ri i| r| r l ; l -i - i|
iii | i - n|i i| i inni lin n r | ( s)
The Panchkosi (distance of five kose, one kose
being equal to two miles) circumambulation is performed
annually, possibly in the Kartika month, possibly around
the Kartika fair. It is true that a very big fair is held at
Ayodhya on this occasion. It is true that lakhs of pilgrims
1998
come to have darshan. . . . . . . . . . . . . Lakhs of people
perform circumambulation on the Panchkosi path. It is
true that such pilgrims, who perform circumambulation,
also have darshan of Hanumangarhi, Kanak Bhawan and
Ramjanmbhumi . . . . . . . . . . I also know about
Chaudahkosi (distance of fourteen kose)
circumambulation. Ayodhya and Faizabad fall in this
Chaudahkosi circumambulation path. It is also true that
the Chaudahkosi circumambulation also commences in
the month of Kartika. It is also true that lakhs of pilgrims
and devotees participate in this circumambulation as
well. (E.T.C)
r -| r l lr i n l - i| -l- rni r
-ilrn r| ( sc)
It is true that what is termed as Babri mosque by
me, is called Janmbhumi by Hindus. (E.T.C)
r -| r l n - i| i- -| i -i ri ni r| r i|
-| r l - - i n iii | i - in r i i| i|
ii ri n| r| ( ss)
It is true that the Ramnavami fair is also held
during Chaitra. It is also true that lakhs of people come
in that fair and a huge gathering takes place." (E.T.C)
i -i i| i i - r n i-ii- ri ni r | ( ss)
"Sharavana fair is also held with great pomp and
show at Ayodhya." (E.T.C)
r -| r l ; - - i in r , - -i n r ,
i - l, --ii - l i -i l- i i n r |
( ss)
"It is true that the visitors of this fair, take a holy dip
in the Saryu and have darshan of Kanak Bhawan temple,
Janmsthan temple and Janmbhumi." (E.T.C)
1999
r ri -| r l in n|i - - | iin
ini i i ri r | r ri r| r l r n|i - - iii |
i - ,i in r s in r, s in r i
s | ni | in r r s i n ni | i ii i i|
in i| . . . . . .r -| r l i liln nr r lr i n
- i l- r i r ni r r| . . . . . . .r ri -| r
l in - li - lr i - -ii | i ii i--
ri ini r i i n i rn i| ( sso)
"It is true that I have seen these three fairs since my
memory. It is true that lakhs of devotees visit on occasion
of these three fairs, some come by train, some by bus and
some by their private vehicles. Earlier some people used to
come by bullock-carts and horses as well . . . . . . . . .It is
true that by terming the disputed site as Janmbhumi, the
Hindus are staking their right over the same . . . . . . . . . It
is true that the mutual differences between Hindus and
Muslims stood extinguished during the aforesaid fairs and
people used to live in harmony. (E.T.C)
r -| r l i i i lr i i n|i -i -ii
ini r| ( )
It is true that Ayodhya is considered a pilgrimage of
the Hindus." (E.T.C)
n|i -ii r i| ii ........ r -| r l lr i n ini
i- i i ni -in r| r ri r| r l lr i i i
li r l ini i- i i - i r i | r i| ri -| r
l i i - ini i- -lin ; i -ii r|
( z)
It was a pilgrimage in past as well ....... It is true
that Hindus consider Lord Rama, their God. It is true that
it is the belief of Hindus that Lord Rama was born in
Ayodhya. It is also true that there are many Kundas and
2000
places related to Lord Rama in Ayodhya. (E.T.C)
- ini r l ini i- lr i ii ni r| . . .
. . . - i i i i r l ii ; i -| r l
i i| lii -i r | . . . . - i i r l i i i n|
i -| r l liiin i i| -i r l - ii r|
( c)
"I know that Lord Rama is the favoured deity of
Hindus. . . . . I have heard and read that Ayodhya has over
turned many times traces of which exist even today. . . . . . .
. . I have read that Ayodhya has overturned two-three times
traces of which are found even today; I have seen them."
(E.T.C.)
| li n n li ii- n i i-i lini
r r ~-i l-ni r ii n i i| ~-i l-ni r | ( cr)
All things seen from the river bank of Saryu up to
Jhunjhuniya Ghat are found to be upside down, that is to
say, the well is also found upside down. (E.T.C.)
OPW-1, Mahant Ramchandra Das Digambar
l - lii lni - lii | i-i |
i; - ln r| i| lii | | | i l- i i- ri ni ii| .........
- lii | ln il-, ri ini i- i - r i ii
r -ii ii| - lii | i i iin ni n r - ii r
-ii nii ii n -ii i - ni n r i -ii -ini
r | n|i n -i | | i l- nii l -i -in | - i i l-
ni n r nn n i||( z)
When the dome collapsed, there was no idol of
Ram Lala beneath it. Pooja-Paath used to be performed
on the land beneath the dome. ........ Prasuti Bhumi - the
land where Lord Rama was born was beneath the middle
dome. I take the part beneath the middle pillar which
was in the shape of the sanctum sanctorum as also the
1
2001
place surrounding it, to be the sanctum sanctorum. The
sanctum sanctorum encompassed the land beneath the
three domes and the entire land of the circumambulation
path. (E.T.C.)
i--i l- -i i - li lr i | i-ii
| i r - l-- - i | i-ii ii i - r |
i--il- -l | li - -ii r l i-
- l rii | i - rin | ( r)
Hindus of the whole world have the same faith in
reference to the place of Ramjanmbhumi as the Muslim
community has in reference to Kaba. The Ramjanmbhumi
temple is only on one place in the whole world but Rama
temples are thousands in number. (E.T.C.)
-il- -i ir| nii i|n| -ii nii ii n
| i l- i - -ini r r i| -ii -i r| r i -ii
ini i- i --ii ri ii - l l-i nii i-ii i
n| r| ( cc)
The Janmbhumi site is considered by me to be the
outer and inner part and the land surrounding it from all
four sides. All these are revered places. This entire place is
a symbol of faith and belief for me on account of being the
birthplace of Lord Rama. (E.T.C)
ss - i- ni i i | lii
| l-iln ni n r i i ni ii ; lnln i-ii i
- ln i ln i| i i ni ii nii n | -n| il
ini ii| . . . . . l-| li -| -i| -i | |
r ; i| -ii i| in i i-n | in i nii r -ii i|
ni n r lin ii| ( s/)
Prior to 1934, after having darshan of
Ramchabutara, I used to have darshan of 'Garbh-grih'
(sanctum sanctorum) situated beneath the mid dome.
2002
Besides this, I used to have darshan of the idols existing
over the pillars and used to offer flower, Tulsi (Holy Basil)
leaves etc. over them. . . . . . . . .. There was a almirah
shaped structure near the western wall. People used to
offer worship articles over there and that place was also
related to 'Garbh-grih' (sanctum sanctorum). (E.T.C)
- r -ii, ri - ln rn| r, ni n r r| ri
ini r , l -ii ni lii - ri ni r , -ii i
ni n r rn r| ( s)
Every such place, where idols exist, is not called
'Garbh-grih' (sanctum sanctorum). The place of descension
of a particular God, is called the 'Garbh-grih' (sanctum
sanctorum). (E.T.C)
OPW-5, Ramnath Mishra alias Banarasi Panda
liln i | n| nr | l -i ri n| r, r| ir
i|, | i i | i n|| nn r| ii n liln i
ii n|( z)
Three types of circumambulation are performed at
the disputed structure, the first one being 14 kosi
(circumambulation of 14 kosas), the second one being 5
kosi (circumambulation of 5 kosas) and the third one
being the inner circumambulation, that is, round the
disputed structure.(E.T.C.)
ssz s/o n - i i liln -i
ii ni ii| ssz s/o n - ili i ri i
i ini ii, ;l | ni ini ii, i - i
i , i i i | liii - ii i ni ii|
( )
From 1932 to 1970, I used to go to have darshan at
the disputed structure. From 1932 to 1970 I used to take
along pilgrims to that place for darshan; hence, I used to
2003
see things cursorily and used to pay more attention to
arranging Pooja and darshan for them and to taking
Dakshina (gift for religious services)." (E.T.C)
liln l - n| nr i ni ii, r
i i n i ni ii l lii i ni n r i ir
n i ni ii i l -n | i |ni i ; i
ini ii| ri |ni i ; i| - -n| i- l
ini ii, i i| i i | ,i ir l ini ii,
ii i| ri n| i||( r)
"Inside the disputed structure I used to have darshan
at three places; I used to have darshan first at the left
Chabutra, then at the domed Garbh-Grih (sanctum
sanctorum) through the outer grill and then at Sita Rasoi in
the north. I sometimes came out of Sita Rasoi from the
northern gate and sometimes returned to the eastern gate
to go out through it, particularly when there were sizeable
crowds. (E.T.C.)
r- -ii i - il- i i ii
ii| ( /s)
I had helped said Yajmans in worship and
darshan of Janmbhumi only. (E.T.C)
OPW-7, Ram Surat Tiwari
- sz r l- ss | - liln
i ni n r - i i| i r| l| liln i
ni n r - i; - ln i r| i| | |ii | |i ir r| ,
i i i li n i| ( o)
Between 1942 to 15
th
December, 1949, I never had
darshan by going into the sanctum sanctorum inside the
disputed structure. There were no idols in the sanctum
sanctorum of the disputed structure. I used to offer flowers,
Prasad and other materials only from outside the grill
2004
wall. (E.T.C.)
ii - ri i- - il- -l l-in r, | i s
- -i i n niilin i| -l- rn r| ( zz)
That very place in Ayodhya where Ramjanmbhumi
is situated, is called the so called Babri mosque by some
Muslims. (E.T.C.)
n| n - i i - |i i| |i ir -
i n -i i r| i li ii, i | i iili
ii i ri l| | i i r| li ii| ( /)
From outside the grill wall in the three domed
structure, I had darshan only of the aforesaid place and
paid obeisance to that very place.(E.T.C.)
OPW-16, Jagadguru Ramanandacharya Swami Ram
Bhadracharya
iin -ii - -r ni | ini r| rin| r|
iin -ii - i--, niii |, ,iliii-, | iii
i| r, ri -r n r| r| -i i | i -i l- - l i| i;
-r n r| r | ( rc)
Mahantas are not required at the eternally revered
places. Among such eternally revered places are
'Rameshwaram', 'Jagannath', Dwarikadhaam', and 'Badri
Narayan' as well, where there are no Mahantas. There is
no Mahanta even at Mathura situated Sri Krishna Janam
Bhumi temple.(E.T.C.)
i i | in rzs ss n
-ii iii r- n i r r i r -i
nini | r ; ini iiiln r| in -i -
|i - i | i r - li | in r
l r in - i | i r - li | in r l r
in - i i i ni; ri n|| - ri l
lls ln i r| i- -i r| ( cs)
2005
We have been hearing of 'Pooja- Archana' (worship
and prayer) from 1528 to 1949 on the basis of traditions
and this tradition is based on the things heard consistently.
I have heard of the aforesaid tradition from my forefathers
in my life time and it is my belief that my forefathers may
have been told this thing by their forefathers. (Himself
stated) 'Avichchhhinna Janshruti' (anything being heard
consistently) itself is called tradition. (E.T.C.)
DW-3/9, Shri Ram Ashrey Yadav
n| n - i liln i | n - | ini
i- i - r i ii, i lr in -in r| lr i | r -ini
r l i- - il- i i -ii l-ni r| ( s)
The Hindus so believe that Lord Rama was born
under the mid dome of the three dome disputed structure. It
is the belief of the Hindus that 'Moksha' (salvation) is
obtained by 'Darshan' (offering of prayer by sight) of
Ramjanmbhumi. (E.T.C.)
DW-3/14 Swami Haryacharya
- n| n - i i - i r ini ii| ........
- i ;|l li ii i l -i r li r l ri i
-i -ii | iln ri n| r| ( zr)
Earlier I use to go for darshan to the three domed
building. ....... I had the said sight because I believe that
one can attain liberation by merely having sight of the said
place. (E.T.C.)
ii - -ilni n r r | ; lnln
i i l| -l - ni n r r| r| ( o/)
In Ayodhya, the Garbh-grih (sanctum santoram)
exists only at the Janmbhumi. Apart from this, Garbh-grih
is not found in any other temple at Ayodhya. (E.T.C.)
1916. As long back as in 18
th
century even Tieffenthaler in
2006
his work "Description : Historique Et Geographique :
Del'Inde" (supra), Exhibit 133 (Suit-5) (Register 21, pages
273-289) has recognised the belief of Hindus with respect to the
place on which they continue to worship despite its being razed
as is evident from the following:
"The Hindus call it Bedi i.e. 'the cradle. The reason for this
is that once upon a time, here was a house where Beschan
was born in the form of Ram. . . . . Subsequently,
Aurengzebe or Babor, . . . got this place razed in order to
deny the noble people, the opportunity of practising their
superstitions. However, there still exists some superstitious
cult in some place or other. For example, in the place
where the native house of Ram existed, they go around 3
times and prostrate on the floor. . . . ."
1917. He also recognised the celebration of the birthplace of
Rama on 24
th
of the month of Chaitra.
1918. In view of the above, we find force in the submissions
of the learned counsels that the plaintiffs 1 and 2 are juridical
person and considering the fact that they are being visited as a
matter of right by Hindus for Darshan and worship believing the
Place as birthplace of Lord Rama, and the idols being the image
of Supreme Being having divine powers which may cherish
their wishes, provides happiness and salvation. This faith and
belief cannot be negatived on the challenge made by those who
have no such belief or faith. How it was created, who created,
what procedure of Shastrik law was followed are not the
questions which need be gone at their instance. We find that
such faith and belief is writ large by a long standing practice of
Hindus of visiting the place for Darshan and worship.
1919. Now the question is what should be the procedure
2007
where an idol is to be sued or sue. The suit in the name of the
idol can be filed by Shebait. Similarly, idol can be made a
defendant through Shebait. In certain circumstances, however, a
suit can be allowed to be filed or defended through next friend.
1920. The term 'next friend' has been used in Order 32 Rule 1
CPC. This brings into picture Order 32 Rule 1 CPC which reads
as under:
"1. Minor to sue by next friend.- Every suit by a minor
shall be instituted in his name by a person who in such suit
shall be called the next friend of the minor.
Explanation.- In this Order, "minor" means a person
who has not attained his majority within the meaning of
section 3 of the Indian Majority Act, 1875 (9 of 1875),
where the suit relates to any of the matters mentioned in
clauses (a) and (b) of section 2 of that Act or to any other
matter."
1921. Meaning of the expression "a next friend" in Order 32
Rule 1 CPC came to be considered in Amar Chand Vs. Nem
Chand AIR (29) 1942 All.150 where an Hon'ble Single Judge
(Hon'ble Braund J.) observed :
"The expression "a next friend" originally denoted
the person through whom an infant acts without any
necessary reference to litigation but in modern times it has
come to assume a technical meaning of the person by
whom a minor or an infant, as the case may be, is
represented as a plaintiff in litigation. The real object of
having a next friend is that there may be somebody to
whom the defendant or the opposite party may be able to
look for costs. The next friend himself does not actually
become a party to the litigation. It is the minor who is the
2008
party and the next friend is a person- so to speak in the
background- who can act on the minor's behalf and to
whom the opposite party can look for costs.
1922. The Court also considered the difference between
"guardian" and "a next friend" and said:
"As every one knows, a minor who is a defendant to a suit
is represented by a guardian ad litem. There is this
difference between a guardian ad litem and a next friend
that, whereas a guardian ad litem is constituted by an
order of the Court, a next friend automatically constitutes
himself by taking steps in the suit."
1923. About the procedure of filing a suit under Order 32
Rule 1 C.P.C. the Court said:
"Now, O. 32, R. 1 provides for the manner in which a
suit is to be instituted by a minor. It says that every suit by
a minor shall be instituted in his name by a person who in
that suit shall be called his next friend. From that it is quite
clear that a person who does, in fact, institute a suit in the
name of a minor becomes his next friend and, according to
the Code, that would apparently happen at the instant a
plaint is presented on a minor's behalf."
1924. In Annapurna Devi Vs. Shiva Sundari Dasi, AIR
1945 Cal 376 a different view was taken holding that the
appointment of next friend by the Court was not necessary.
1925. For the purpose of procedure, recourse was taken to
Order 32 CPC but not accepted by this Court in Doongarsee
Shyamji vs. Tribhuvan Das, AIR 1947 All 375 observing where
the Shebait of a temple has done something which is obviously
adverse to the interest of the institution, the Court may allow a
disinterested third party to file a suit, but such a suit must be
2009
filed in the interest of the foundation or the deity, as the case
may be. This proposition was expanded and enlarged by a
Division Bench of this Court in Bihari Lal Vs. Thakur Radha
Ballabh Ji and another AIR 1961 Allahabad 73 holding that
the person who has beneficial interest in the temple property can
take steps to see that the temple property is preserved to the idol
and may file a suit for that purpose as the next friend of the
deity, bringing the suit in the name of the deity himself.
1926. This Court in Dongarsee Syamji Joshi (supra) held :
"The analogy of a deity being treated as a minor is
a very imperfect analogy and we cannot carry it far
enough to make O. 32, Civil P.C. applicable. In cases
where the sebaits of a temple have done something which is
obviously adverse to the interest of the institution it may be
that the Courts would allow a disinterested third party to
file a suit, but such suits must be filed in the interest of the
foundation or the deity, as the case may be. the cases relied
on by learned counsel where a sebait transferred property
belonging to the deity and a stranger was allowed to file a
suit as next friend can be distinguished on that ground."
(para 8)
"The result of accepting the argument of learned
counsel would be that any person can constitute himself as
the next friend of a deity and file a suit in the name of the
deity for possession of the property by the dispossession of
a de facto sebait who may be managing the property and
looking after the deity to the satisfaction of everybody and
get hold of the property in the name of the idol till such
time as he is dispossessed again by somebody else. We are
not prepared to hold that such is the law that any third
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person can constitute himself as next friend and file a suit
and claim an absolute right to possession of the property
simply because he has filed the suit in the name of the
deity." (para 12)
"An idol, though it is a juristic person, is in charge of
its sebait who, for all practical purposes, represents it. But
there maybe cases where the right of the sebait and the
right of the idol are at conflict and in such a case it may be
that the idol may bring a suit for the vindication of its
rights through a disinterested third party as its next friend.
We do not think we can accept the contention of learned
counsel for the respondent that an idol has no right of suit
at all, though we agree with him that a suit in the name of
the idol can be filed only in the interest of the idol and not
with the object of getting hold of its property by the person
purporting to act as next friend." (para 13)
"There is really no such thing as an idol which is the
private property of an individual or a family or which
belongs to the public. According to Hindu philosophy, an
idol, when it is installed in a temple is the physical
personification of the deity and after consecration the stone
image gets its soul breathed into it. Before an idol can be
installed in a temple, the temple must be dedicated to it and
it becomes its private property. The books of ritual contain
a direction that before removing the image into the temple
the building itself should be formally given away to God for
whom it is intended. The sankalpa, or the formulae of
resolve, makes the deity himself the recipient of the gift
which, as in the case of other gifts has to be made by the
donor taking in his hands water sesamum, the sacred kush
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grass and the like. It is this ceremony which divests the
proprietorship of the temple from those who had built it
and vests it in the image which by the process of
vivification has acquired existence as a juridical
personage. A temple building, therefore, under the strict
Hindu law is the property of God and the idol and cannot
be the private property of an individual or a family or a
section the public. The property dedicated to an idol in an
ideal sense vests in the deity, though no Hindu professes to
give the property to God. He only dedicates it to the
worship of God and under the strict Hindu law the King,
who is the servant and the protector of the deity, is the
custodian of the property. (para 15)
1927. In Sri Nitai Gour Radheshyam Vs. Harekrishna
Adhikari and others AIR 1957 Cal. 77 it was held that non-
filing of application seeking permission to prosecute a suit on
behalf of an idol as Shebait is only an irregularity and such
application if filed later on and allowed by the trial court, the
suit cannot be held to be filed wrongly or not maintainable for
this reason alone.
1928. When a suit can be filed by an idol through a next
friend was considered by a Single Judge in Angoubi Kabuini
and another Vs. Imjao Lairema and others AIR 1959
Manipur 42 wherein it was held:
"Similarly, there is no force in the contention that
such a next friend must be appointed as the next friend by
the Court before he can institute a suit on behalf of the
idol. No provision of law was shown in support of it, rather
the provisions in this respect in the Civil Procedure Code
do not make such a course necessary. It is a different
2012
matter that the defendants can question that suitability of
the next friend after the suit is instituted and then the Court
will have to decide that point, but that is no authority for
the proposition that a next friend must be appointed by the
Court before the suit can be instituted by him. This point
was dealt with in Sri Annapurna Debi v. Shiva Sundari,
AIR 1945 Cal 376 at some length and I am in respectful
agreement with the view taken by the learned Judge in that
case. The case reported in Kalimata Debi v. Narendra
Nath, 99 Ind Cas 917: (AIR 1927 Cal 244) which was
relied upon on the side of the petitioners also does not
support their contention. What was stated in that case was
that the Shebait alone can maintain a suit on behalf of an
idol except perhaps in a case where the Shebait has refused
to institute a suit. The observations in Sri Sri Sridhar Jew
v. Manindra K. Mitter, AIR 1941 Cal 272 were also to the
same effect, namely, that when the interests of the Shebait
are adverse to that of the idol then the idol should be
represented through a disinterested next friend. It will be
thus clear that in a case like the present one it is
permissible for a person who is not the Shebait to bring
such a suit." (Para 4)
1929. It was contended in Bhagauti Prasad Khetan Vs.
Laxminathji Maharaj etc. AIR 1985 All. 228 that no suit
through next friend is maintainable unless an application is filed
seeking leave of the Court to sue as a next friend of the idol. The
Court found that no such procedure is prescribed in Order 32. It
also concurred with a similar view that no such application is
necessary, expressed in Ram Ratan Lal Vs. Kashi Nath
Tewari, AIR 1966 Patna 235 and Angoubi Kabuini vs. Imjao
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Lairema (supra). It is true that the two decisions of the Calcutta
High Court in Smt. Sushma Roy Vs. Atul Krishna Roy AIR
1955 Cal 624 and Iswar Radha Kanta Jew Thakur V.
Gopinath Das (supra) in which it was held that if anybody else
other than Shebait has filed suit on behalf of of the idol, he must
be appointed as next friend by the Court on filing of such an
application by him, have been dissented by this Court and it
pointed out contradictory authorities of the Calcutta High Court
in Annapurna Devi (supra).
1930. Dealing with the right of deity to file suit, the Division
Bench of this Court in Bhagauti Prasad Khetan (supra) in para
18 and 19 of the judgment said :
18. The third point argued by the learned counsel for the
appellants in connection with the maintainability of the suit
is that in the present case Atma Ram did not apply for leave
of the Court to sue as a next friend of the idol and as such
the suit filed by him was not maintainable. In support of
this argument he placed reliance upon Smt. Sushma Roy v.
Atul Krishna Roy, AIR 1955 Cal 624 and Iswar Radha
Kanta Jew Thakur v. Gopinath Das, AIR 1960 Cal 741. It
was held in these cases that anybody other than Shebait
suing on behalf of the idol must be appointed as next friend
by the Court on application by him to that effect. After
having carefully gone through these cases we find
ourselves unable to agree with these observations. A
glance on the judgment reported in AIR 1955 Cal 624,
shows that the decisions of Calcutta High Court are not
uniform on the appointment of the next friend by the Court.
It has been held in Annapurna Devi v. Shiva Sundari Dasi,
AIR 1945 Cal 376 that appointment of the next friend by
2014
the Court is not necessary. Moreover in AIR 1960 Cal 741
it was observed at page 748 that :
A worshipper or a member of the family has no
doubt his own right to institute a suit to protect his
right to worship and for that purpose to protect the
debutter property. That is, however, a suit by the
member of the family or worshipper in his personal
capacity and not a suit by the deity. The deity has
also a right of its own to have a suit instituted by a
next friend .Anybody can act as such next friend,
but the law requires that anybody other than Shebait
instituting the suit in the name of deity must be
appointed as such by an order of the Court.
19. It indicates that no appointment is necessary, if the suit
is filed by a worshipper. Here Atma Ram has joined the suit
as worshipper also. Thus the maintainability of the suit
remains unaffected. Apart from this, in Ram Ratan Lal v.
Kashi Nath Tewari, AIR 1966 Pat 235 and Angoubi
Kabuini v. Imjao Lairema, AIR 1959 Manipur 42 it was
held that such an appointment is not necessary. The
Supreme Court has clearly held in Bishwanath vs. Sri
Thakur Radha Ballabhji, AIR 1967 SC 1044 that the
worshipper has an ad hoc power of representation of the
deity when the Shebait acts adversely. It follows from this
the worshipper having right to represent the deity can
represent the deity without any specific order from the
Court about his appointment. There is no definite
procedure laid down in the Civil P.C. relating to suits on
behalf of idol. The provisions of order 32 C.P.C. which
relate to minor do not specifically provide for the
2015
appointment of the next friend. It may also be added in this
connection that the defendants, appellants did not raise any
objection before the trial Court that Atma Ram should first
make an application for his appointment as next friend of
the deity and then the suit can proceed. Atma Ram clearly
alleged in para 1 of the plaint that he is representing the
deity as its next friend. The manner in which he was
allowed to continue the suit indicates that he should be
deemed to have been accepted as next friend of the deity.
Thus the suit cannot be held not maintainable because
Atma Ram did not make an application and was not
appointed as next friend of the idol plaintiff 1 in the trial
Court.
1931. As a proposition of law we are inclined to express our
respectful agreement with the above view taken in Bhagauti
Prasad Khetan (supra) and learned counsel for the parties
could not place before us any binding authority or otherwise
material to pursue us to take a different view.
1932. In Sri Thakur Kirshna Chandramajju vs.
Kanhayalal and others AIR 1961 Allahabad 206 another
Division Bench followed the view of this Court in Bihari Lal
Vs. Radha Ballabh Ji (supra) by observing in paragraph 39 of
the judgment, where the acts of the alleged Shebait are being
impugned, then the idol may sue through a next friend who has
beneficial interest in the property.
1933. In Sri Sri Gopal Jew Vs. Baldeo Narain Singh and
others, 51 CWN 383 the question of maintainability of suit of a
deity through a person who was not a Shebait came to be
considered in detail. Initially, the suit was filed in the name of
deity alone through one Sri Rajendra as its next friend.
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Subsequently, Rajendra was also impleaded as second plaintiff.
The Court referred to general rule enunciated by James, L.J. in
Sharpe Vs. San Paulo Railway Co., L.R. 8 Ch. App. 597 at
pp.609 and 610 (1873) observing :
".................... a person interested in an estate or trust fund
could not sue a debtor to that trust fund, merely on the
allegation that the trustee would not sue; but that if there
was any difficulty of that kind, if the trustee would not take
the proper steps to enforce the claim, the remedy of the
cestui que trust was to file his bill against the trustee for
the execution of the trust or for the realisation of the trust
fund and then to obtain the proper order for using the
trustee's name, or for obtaining a Receiver to use the
trustee's name, who would, on behalf of the whole estate,
institute the proper action, or the proper suit in this Court."
1934. Hon'ble Das J. in Gopal Jew (Supra) however,
proceeded to hold at page 390 of the judgment as under:
"In special circumstances, however, e.g., where the
trustee is unwilling or refuses to sue or has precluded
himself, by any act, omission or conduct, from suing, a
cestui que trust may himself institute the action adding as
Defendants every trustee and every other cestui que trust
as the cases cited in the notes in Halsbury's Laws of
England, 2nd Edn., Vol.33, paragraph 505 at pages 288
and 289 will show."
"............Can it be expected, in the circumstances, that the
trustees, who perpetrated the fraud on the deity, will
themselves come forward to take proceedings to get the
consent decree set aside on the ground of their own fraud ?
It may be that in law there is nothing to prevent the
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defaulting trustees from filing a suit as Plaintiffs, but from
a practical point of view will not their presence in the
category of Plaintiffs seriously jeopardise the chances of
success of such a suit? Will it not be said that the solicitude
now shown by them for the beneficiaries including a deity
whose interest they had not thought of for all these years is
a mere pretence. One of the major beneficiaries is a deity
of whom after the death of the daughter and grand
daughter of Sreegopal the trustees and their brothers
and/or their sons will be the shebaits. Will not the trustees,
if they themselves bring a suit lay themselves open to a
double charge of fraud, fraud on the deity in the first
instance and fraud on the purchasers now? Is there no risk
of there being personally made liable for costs? The
trustees may be penitent, as both Bonwari and Madho say
or pretend they are, or they may be unrepentant sinners as
the Defendants maintain they are; but will not the
considerations mentioned above weigh with them equally
in either case? However genuinely repentant they may be,
they may yet be not willing to face the Court as Plaintiffs
for fear of being made to pay the costs or of prejudicing the
deity. They may be willing or even anxious to render
assistance to the beneficiaries, yet they may be reluctant to
figure as Plaintiffs. On the other hand, if they are
unrepentant and their sole object is to benefit themselves
they will out of policy keep themselves behind the scenes.
In either case they cannot for a moment be expected to take
proceedings in their own name. Is the deity who is one of
the beneficiaries to suffer? The law recognises the deity as
a juridical entity capable of having legal rights. If a fraud
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has been perpetrated on the deity and its right, such as is
alleged in this suit, the deity is entitled to be reinstated in
its original rights. Such reinstatement may indirectly
benefit the very persons who perpetrated the fraud on the
deity. It may be indeed, I am strongly inclined to think it
is that the defaulting trustees are behind this litigation
and have set up a son of one of them to file this suit for
their own ends but their evil motive or rascality cannot
effect our extinguish the deity's rights. As long as the deity
is recognised as a legal entity capable of holding
properties, its right must necessarily be recognised on its
own merits. The Court cannot ignore the deity's rights or
deny protection to the deity merely because of the
misconduct of its unmeritorious trustees or shebaits or of
the possibility of those very unmeritorious persons
indirectly reaping the benefit of such protection. The fact
that the deity may be again defrauded can be no ground for
declining to remedy the fraud that has already been
perpetrated on its rights. In my judgement, in the
exceptional circumstances of the present case and in view
of the allegations in the plaint it must be held that the
trustees are unwilling or have refused or at any rate by
their act or conduct rendered themselves incompetent to
maintain a suit for setting aside the decree in 1926 and the
beneficiaries themselves must be allowed to take legal
proceedings.
1935. The Court held in Gopal Jew (Supra) that the suit is
maintainable but it chose to rely on Order 32 Rule 4(1) of the
Code of Civil Procedure for the said purpose.
1936. Considering Order XXXII Rule 1 C.P.C., a Single
2019
Judge of Andhra Pradesh High Court in Duvvuri Papi Reddi
and others Vs. Duvvuri Rami Reddi AIR 1969 AP 362, held in
para 14:
It must however, be remembered that Order XXXII deals
only with procedure. It does not confer on minors or
persons of unsound mind any right of any sort. Under Rule
1 of Order XXXII, every suit by a minor shall be instituted
in his name by a person who in such suit shall be called the
next friend of the minor. Where the suit is instituted without
the next friend, according to Rule 2, the defendant is
entitled to apply to have the plaint taken off the file, with
costs to be paid by the pleader or other persons by whom it
was presented. After hearing the objections, the Court is
empowered to pass such order as it thinks fit under Rule 2.
Order XXXII, Rule 1 states that along with such a suit an
application by the next friend should be filed for the
purpose of appointing him as the next friend it is
necessarily implied
1937. Some of the judgments, which we have already
referred, show that the same were given by holding that a Deity
does not suffer any disability as it is not minor, in order to argue
that Order XXXII, Rule 1 has no application, drawing a parallel
with Section 6 of the Limitation Act. An attempt was made that
the Deity having been held not a minor for the purpose of
Section 6 of the Limitation Act and therefore for the purpose of
Order XXXII, Rule 1 C.P.C. also it cannot be treated to be a
minor and that provision will have no application.
1938. Relying on Privy Council's decision in Damodar Das
Vs. Adhikari Lakhan Das (supra) and a Division Bench
decision of Patna High Court in Naurangi Lal Ram Charan
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Das AIR 1930 Patna 455 an attempt was made to argue that a
Hindu idol/deity cannot be included within the term "minor". In
the context of Section 6 of the Limitation Act this view was
taken by the Patna High Court in Naurangi Lal (supra), hence
it was argued that on the same principle Order 32 Rule 1 has no
application in this case and an idol cannot be allowed to be sued
through next friend treating it to be a minor but with great
respect we find that the issue is already concluded by the
decision of the Apex Court in Bishwanath vs. Sri Thakur
Radha Ballabhji (supra). We also find that the Patna High
Court referred to an earlier decision of this Court in Chitar Mal
Vs. Panchu Lal AIR 1926 All.392 and the Oudh Chief Court in
Prakash Das Vs. Janki Ballabha Saran AIR 1926 Oudh 444
holding that property can be acquired as against an idol by
adverse possession which will run from the date of the
alienation inasmuch as an idol does not suffer from any
disability under the Limitation Act and in reference thereof it
was held that the idol cannot be treated to be a 'minor' so as to
suffer a disability under Section 6 of the Limitation Act.
1939. To the same effect is a Division Bench decision of
Orissa High Court in Radhakrishna Das Vs. Radha Ramana
Swami & others AIR (36) 1949 Orissa 1. In that case also there
was a family idol of Thakur Radharamna Swami. It belonged to
the family of Ranganath Deb Goswami whose father executed a
deed on 21
st
November 1909, transferring his Shebait right as
inam lands endowed for the service of the deity and the idol
itself to Mahant of the Gangamatha Math at Puri and put him in
possession of the plaintiff deity. The Government of Madras
resumed the inam grant on 4
th
November 1921 on the ground it
has been alienated. Hence, the purpose of grant has failed.
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Ranganath Deb Goswami requested the Government to hand
over the net assessment of the village so that Seva Pooja of the
deity may be continued. The Mahant of Gangamatha Math at
Puri raised an objection. The Government left the parties to
establish their rights in a Civil Court and collection from village
were kept in the treasury subject to final adjudication of the title.
Ranganath Deb Goswami filed a suit against the Mahant of
Gangamatha Math at Puri praying for a declaration that the
plaintiff idol has not been removed from the Goswami Math to
Gangamatha Math, as falsely stated in the deed executed on 21
st
November 1909. The suit was decided against Goswami Math
as a result whereof the inam village was re-granted to
Gantamatha Math. Thereafter, a suit was filed by zamindars of
Takkali as next friend of the idol seeking a declaration that the
retention of idol at Gangamatha Math by its Mahant is wrongful
and a continuing wrong, the idol be restored to its original place,
i.e., Goswami Math. The next frient of the idol claimed to be the
successor of the original founder of the endowment, i.e.,
Goswami Math and as such interested in the location of the idol
at proper place and claimed that it is the will of the idol to be
returned at the original place and to be worshipped thereat. The
cause of action was claimed to be a continuing one. The Trial
Court formulated several issues and with respect to the validity
of the transfer from Goswami Math to Gangamatha Math
observed that the said transfer is not illegal and cannot be
questioned by the next friend of the idol. He held the retention
not illegal and the suit was held barred by limitation. The
judgment was reversed in appeal. The High Court allowed the
appeal and restored the judgment of the Trial Court in the
background of the above facts. High Court found that there was
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no difference in the customary mode of worship in Goswami
Math and Gangamatha Math. The plea of different of customary
mode of worship was found a pure myth and unsubstantiated.
Secondly, it held that the lower Appellate Court erred in
observing that the Mahant of Goswami Math being a married
person was capable of conducting worship though the Mahant of
Gangamatha Math, Sanyasi, could not have been capable
thereof. The Court observed that this finding is erroneous and
the lower Appellate Court has proceeded on some unfortunate
confusion between an "ascetic" and a 'Sanyasi. The aforesaid
words have been explained by the Court as under:
"There has been an unfortunate confusion in the
lower Courts between an "ascetic" and a 'Sanyasi.' The
only difference that I can find between defendants 1 and 2
is that the former is a perpetual Brahmachari or Virakta of
the Vaishnab sect while the latter is a Gruhi or married
man. Both worship deities, both perform the annual
ceremonies of their Gurus or ancestors, and also perform
other Vaidio Karmas. Sanyasi should have no Gods or
temple. Their only vocation is the contemplation of the
absolute truth and not the worship of any God. A
Brahmachari or student, according to Golap Chandra
Sarkar is of two descriptions, namely, Upakarvana or
ordinary student and Naishtika or life long student. The
former became a house-holder in due course, while the
latter was a student for life, devoted to the study of science
and theology, felt no inclination for marriage, did not like
to become a house-holder, and chose to life, as a perpetual
student, the austere life of celibacy. There are persons
belonging to certain religious sects of modern origin such
2023
as the Vaishnabs that do in some respect resemble lifelong
students and itinerant ascetics. They are connected with the
well-known Maths or Mahants.... Most of the Vaishnabite
Maths of Bengal, Bihar and Orissa were founded by
Bengalee Brahmins and Kayasthas who were the disciples
and followers of Chaitanya and they were not merely
founded by celibates but by house-holders. The three
Peabhus who are the chief spiritual preceptors or masters
of this order are Obaitanya, who is believed to be the
incarnation of Lord Krishna, Adwaitanand and Nityanand.
Adwaitanand's descendants residing at Santipur are now
chief spiritual preceptors along with the male and female
descendants of Nityananda. Besides these three Prabhus,
the Vaishnabs of this order acknowledge six Goaains as
their original and chief teachers and founders, in some
instances of the families now existing, to whom as well as
to the Gokulashta Gosains, hereditary veneration is due.
These six are Rupa, Sanatan, Jeeva, Raghunath Bhat,
Baghunath Das, and Gopal Bhat. They appear to have
settled at Brundaban and Mathura. The post of spiritual
Guide is not confined only to the Brahmins: some of the
well-known Gosains' belong to the Vaidya caste.
Chaitanya, the founder of these cults, nominated
Adwaitacharya or Adwaitanand and Nityanand to preside
over the Bengal Vaishnabs, and Bupa and Sanatan over
those of Mathura: See Wilson's works, vol. I. It is said that
defendant 1 claims descent through Gadadhar Prabhu and
defendant 2 through Nityanand Prabhu who were both
followers of Lord Chaitanya. A reference to Chaityanya
Charitamruta and Baishnab Abidhana shows that
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Gadadhar who was also known as Pandit Prabhu
Gadadhar Pandit and Godai, was the disoiple of Pandarik
Bidyanidhi who was himself a disciple of Advaitanand.
Gadadhar came to Orissa along with Sri Chaitanya and
lived the life of a perpetual Brahmachari till his death in
1533. Gangamudri was an Oriya lady and was a disciple of
Gadadhar's branch. Gadadhar was a great scholar and
wrote commentaries on the Gita. Besides he was a life-long
associate of Lord Chaitanya and is regarded by the
Vaishnabs as one of the Pancha Tatva. The appellant's
Math is obviously named after Gangamudri, who was a
Vaishnab herself and is known as the Gangamatha Math."
1940. Coming to the question of limitation, the Court in
Radhakrishna Das Vs. Radha Ramana Swami (supra) has
dealt with this issue in paras 13 and 19 at length. Certain
propositions which it has accepted as well settled are:
(a) As a general rule according to Hindu law, property
given for the maintenance of religious worship is
inalienable. (Reliance is placed on Mac Naughton's
"Precedents of Hindu Law" Vol. II, p. 305; Sri Sri
Ishwar Lakshi Durga Vs. Surendra Nath Sarhar 45
C.W.N. 665 and Surendra Narayan Sarbadhikari Vs.
Bholanath Roy Choudhuri AIR (30) 1943 Cal. 613)
(b) The manager of an endowment has the same powers as
a guardian of an infant to incur loans for necessary
purposes and such loans will bind the idol's estate.
(c)Where the temple is a public temple, the dedication
may be such that the family itself could not put an end to
it, but in the case of a family idol the consensus of the
whole family might give the estate another direction.
2025
(Reliance is placed on Kunwar Darganath Vs.
Ramchunder 4 I.A. 52 (P.C.) and Tulsidas Vs.
Sidahinath (9) I.C. 650)
(d) It is only in an ideal sense that property can be said to
belong to an idol, and the possession and management of
it must in the nature of things be entrusted to some person
as the Shebait or Manager. (Reliance is placed on
Prosunno Kumari Debya v. Gulabahand (supra) and
Kunwar Darganath Vs. Ramchunder (supra).
(e) Person so entrusted must of necessity be empowered to
do whatever may be required for the service of the idol
and for the benefit and preservation of its properties, at
least to as great a degree as the manager of an infant heir.
(f) A Shebait can borrow for legal necessity and for
necessaries of the deity and bind the estate of the deity.
(g) Right to be worshipped at a particular place or by a
person may be regarded as intangible property (Reliance is
placed on Mahamaya Devi Vs. Hari Das Haldar AIR (2)
1915 Cal. 161)
1941. Having said so, the Court observed that in the eyes of
law, idols are property and placed reliance on Subbaraya
Gurukkal Vs. Chellappa Mudali 4 Mad. 315. It referred to a
Calcutta High Court decision in Bali Panda Vs. Jadumani 7
I.C. 475, wherein it was held that being a juridical person, the
idol is not movable property though it is property for which a
suit is governed by Article 120 Limitation Act. Having referred
to the above two decisions, the Orissa High Court proceeded not
to record any final opinion as to whether the idol can be
regarded as movable or immovable property as is evident from
para 13 of the judgment. However for our purpose, we find that
2026
this question needs some consideration. If an idol can be held to
be a property, it well be a judicial proposition to treat it as a
juridical person capable of holding the property as a right to sue
or be sued or other consequences in law which are available to a
legal person. It is inconceivable that a legal person, i.e., idol
itself is a property and can also hold property. What appears to
us is that the man made idols made of precious metals may have
their value in the economic sense, not in the form of image but
on account of the preciousness of the metal of which it consists.
In modern days, the Hindu religious idols of ancient period have
also become precious and antique market internationally though
it is a crime under some statutes of this Country. Therefore,
beyond India, antique Hindu idols by the persons of other
religions may have economic worth for different reasons but for
the worshippers it is a matter of faith and belief and not the
economic worth. Normally, a Hindu worshipper cannot think of
selling an idol being worshipped by all Hindus treating it to be a
property consisting of gold, silver or any other metal since it is
against the civilized motion of the Hindu society who believe
and have faith in the religion. But if the idol has lost its efficacy
as deity for one or the other reason and the precious metal of
which it was made for one or the other reason has converted into
form of that metal itself, obviously it will be a property of the
value that metal would be. In short, what we intend to say is that
a consecrated man made idol, irrespective of preciousness of the
metal of which it is made, is not treated to be property in any
manner by the worshippers of that deity and, therefore, it cannot
be said to be a property as a matter of legal proposition. But the
right to worship the idol and possession of the deity for the
purpose of its management, sewa, pooja etc. constitute the rights
2027
of Shebait, which is an office, and can be said to be an
intangible property right. The High Court further said that
Thakur Ji can be the subject of possession and adverse
possession. This wide proposition again is difficult to accept. A
person, whether legal or natural, by itself can be subject of
possession or adverse possession is a bit difficult to understand.
The property of an idol or deity may be subject of possession
and adverse possession in law if it is so permissible but the deity
itself, in our view, cannot be said to be subject of possession and
adverse possession in the manner it is being said and here also
what we have observed with respect to the concept of idol as
property can be read here also.
1942. Then comes the next proposition. The Orissa High
Court held, "An idol is no doubt in the position of an infant as it
can act only through a sebayat or a manager." Having said so, it
proceeded further to observe that there is no authority to show
that this infant can be treated to be a perpetual infant so that
transaction by or against him will not be governed by Limitatin
Act. It further proceed to hold that " The doctrine that an idol is
a perpetual minor is an extravagant doctrine as it is open to the
sebayat, or any person interested in an endowment, to bring a
suit to recover the idol's property for devottar purposes."
(Reliance for the said proposition has been placed on Damodar
Das Vs. Lakhan Das (supra) and Surendra Krishna Roy Vs.
Bhubaneswari Thakurani AIR (2) 1933 Cal. 295). The Court
further observed:
(i) An idol can also acquire rights by adverse possession
just as much as there can be adverse possession against the
idol. [Anand Chandra Vs. Brojalal (supra)]
(ii) A suit by the idol or the manager of the idol on
2028
behalf of the idol for recovery of possession must be
brought within 12 years from the date of alienation.
(iii) An idol is as much subject to the law of limitation
as a natural person and cannot claim exemption on the
ground that he is a perpetual infant, nor is a Hindu deity to
be regarded as a minor for all purposes. (reliance is placed
on Anantakrishna v. Prayag Das I.L.R (1937) 1 Cal. 84
(iv) A idol cannot claim exemption from the law of
limitation. (reliance is placed on Surendrakrishna Roy
Vs. Ishree Sree Bhubneswari Thakurani (supra) as
confirmed by Privy Council Bhubaneswari Thakurani
Vs. Brojanath Dey AIR (24) 1937 PC 185)
1943. Reliance is also placed on a Division Bench decision
on Orissa High Court in Jagannath vs. Tirthnanda Das AIR
1952 Orissa 312 where following Talluri Venkata Seshayya
and others Vs. Thadikonda Kotiswara Rao (supra) the Court
expressed its opinion against treating idol as perpetual minor
and said in para 11:
"......But it is well-settled that an idol cannot be
regarded as a perpetual minor and the special protection
given to a minor does not apply to an idol. The protection
of a minor against the negligent actings of a guardian is a
special one and statutory provision has been made for
safeguarding a minor's interest."
1944. In Tarit Bhusan Rai and another Vs. Sri Sri Iswar
Sridhar Salagram Shila Thakur (supra) the Court said:
In view of the religious customs of the Hindus
which have been recognised by Courts of law a Hindu idol
like a juristic person under the English system has been
vested with the capacity of holding properties and with the
2029
powers of suing or being sued (Ibid). A juristic person
under the English system has no body or soul. It has no
rights except those which are attributed to it on behalf of
some human beings. The lump of metal, stone, wood or
clay forming the image of a Hindu idol is not a mere
moveable chattel. It is conceived by the Hindus as a living
being having its own interests apart from the interests of its
worshippers. It is a juristic person of a peculiar type.
The points of similarity between a minor and a Hindu
idol are :(1) Both have the capacity of owning property. (2)
Both are incapable of managing their properties and
protecting their own interests. (3) The properties of both
are managed and protected by another human being. The
manager of a minor is his legal guardian and the manager
of an idol is its shebait. (4) The powers of their managers
are similar. (5) Both have got the right to sue. (6) The bar
of S. 11 and Order 9, R. 9, Civil P.C., applies to both of
them.
The points of difference between the two are: (1) A
Hindu idol is a juristic or artificial person but a minor is a
natural person. (2) A Hindu idol exists for its own interest
as well as for the interests of its worshippers but a minor
does not exist for the interests of anybody else. (3) The
Contract Act (Substantive law) has taken away the legal
capacity of a minor to contract but the legal capacity of a
Hindu idol to contract has not been affected by this Act or
by any other statute. (4) The Limitation Act (an adjective
law) has exempted a minor from the operation of a bar of
limitation but this protection has not been extended to a
Hindu idol.
2030
From the above it is clear that there is some analogy
between a minor and a Hindu idol but the latter is neither a
minor nor a perpetual minor. Although in law an idol has
the power of suing it has no physical capacity to sue. This
absence of physical capacity is perhaps referred to by the
Judicial Committee when they said in 31 I.A. 203 that the
right of suit is not vested in the idol. Who is then entitled
to exercise the idol's power of suing? This is a matter of
substantive law:
Its (idol's) interests are attended to by the person
who has the deity in his charge and who is in law its
manager with all the powers which would in such
circumstances on analogy be given to the manager of the
estate of an infant heir: 52 I.A. 245.
The manager of the estate of an infant heir
apparently means the legal guardian of an infant. The
powers of the legal guardian of an infant include the power
to sue on behalf of the infant. The shebait of a Hindu idol is
its manager in law. On the analogy of the power of the
legal guardian of an infant the shebait of a Hindu idol has
the right to sue on behalf of the idol, for the protection of
its interests. In this sense it may be said as was said by the
Judicial Committee in 31 I.A. 203 that the right of suit vests
in the shebait. (page 103)
A Hindu idol as has been already stated is a juristic
person having its own interests apart from the interests of
its worshippers. 31 I.A. 203 and 52 I.A. 245 are authorities
for the proposition that its power of suing for protecting its
own interests is to be exercised by it through its de jure or
de facto shebait. The worshippers of the idol are interested
2031
in the idol and as such are interested in the property
dedicated to it for its maintenance. Their right to sue for
the protection of the idol's property is founded upon their
own interest viz., the right of worship apart from and
independent of the idol's right to sue for the protection of
its own interests and properties. They have no right to
exercise the idol's power of suing. (page 104)
The introduction of the idol and its recognition as a
juristic person are more a matter for the procedure and the
procedure in India recognises the idol as having a locus
standi in judicio. (page 119)
1945. All these propositions as laid down, wide as they are,
we find difficult to subscribe. Once it is held that an idol is in
position of an infant, we fail to understand as to how it is infant
or minor for one purpose and not for another. In our sense
whether a minor is entitled to act, not to act or protect it, that
would apply without any distinction to alike minor who is
looked after by his/her guardian, may be natural or otherwise
and manner in which his property can be dealt with by such
guardian all will apply to a deity also. To that extent, deity, once
a minor, will continue to be treated as minor for all purposes and
we find no authority to show as to how and in what
circumstances and why there can be a distinction between the
status of deity as minor and natural person as minor. If by nature
of thing, a deity is such kind of minor which can never attain
majority, this by itself would not deprive it from protections or
otherwise which are available to a natural minor. One can have
no dispute about the proposition that minor's estate can be
encumbrance by a person, who is entitled to manage his affairs,
may be a guardian in case of natural minor and Shebait in case
2032
of idol so long such encumbrance is necessary for the benefit of
the minor or the idol, as the came may be. The proposition that
an idol can claim somebody's property under possession
adversely and his property also can be subject to same
consequences has to be understood in the facts of the things.
Obviously, an idol cannot move on its own. If there comes a
question of unauthorized possession of some other's property by
an idol, this would have to be through some natural person. The
benefit may ultimately go to the idol if such unauthorized
possession completes the statutory period of limitation to be
converted into a title, but that does not mean that it has been
done by the idol on its own inasmuch if a suit for eviction is to
be filed before expiry of period of limitation, that will be against
the idol represented through a Shebait or the natural person who
is responsible for such possession. Similarly, the property of an
idol, if unauthorizedly possessed by a person there can be two
types of cases; where a caretaker, i.e, Shebait or whatever name
it is called is available, but does not take any action allowing the
unauthorized possession by another person to continue for the
period of limitation resulting in extension of rights of the minor
to the property,if inaction on the part of Shebait or caretaker, as
the case may be, is not found to be collusive, fraudulent or
deliberate mismanagement of the property of the minor, one
may raise the plea of limitation but we have serious doubt in
successful representation of such right for the reason that for
claiming adverse possession an open hostile possession to the
knowledge of owner is an integral constituent of the plea of
adverse possession. Such a knowledge to the owner of the
property, i.e., idol cannot be perceived for the reason such a
knowledge to the minor's inaction on his part is not recognised
2033
in law. It is this distinction which has been pointed out by the
Privy Council in the case of Masjid Shahid Ganj v. Shiromani
Gurudwira Parbandhak Committee, Amritsar, 67 Ind. App.
251 at p.264 (P.C.) where the plea of legal person qua a mosque
has been turned down by the Privy Council observing that
unlike a Hindu idol a mosque cannot be held to be a juristic
personality or a legal person in law. The Court held the Mosque
as property and, therefore, capable of adverse possession. The
property of a juristic personality cannot be said to be inalienable
in all circumstances, for example, it can be transferred by
Shebait for managing funds for managing the affairs of the idols
and so on, but not in all circumstances. This distinction has to be
understood in order to appreciate the concept of idol, deity, legal
personality etc. of Hindu law as recognised by British India
Courts before independence. Regarding the juristic personality
of the idol, virtually there was no difference but regarding the
statute of idol as a minor or perpetual minor, there appears to be
some difference among various Courts. The Apex Court in
Bishwanath Vs. Shri Thakur Radhaballabhji (supra) has
made it clear that a Hindu idol enjoy status of a minor. There is
no restriction in such declaration that such concept of minor of
the idol should be understood in a restricted manner and it
would be a minor only for certain purposes and not for other
purposes. In the light of the above discussion, respectfully we
are of the view that the wider observations of the Orissa and
Calcutta High Courts cannot be concurred by us.
1946. The matter thus now stand settled by the Apex Court
in Bishwanath & another Vs. Sri Thakur Radha Ballabhli &
others (supra) holding the Deity a minor, all the judgments
which have taken a different view of the High Courts or Privy
2034
Council cannot be treated to be a good law or a binding
precedent.
1947. This question that a Deity being minor can be
represented by a next friend has been reiterated by the Apex
Court in another case i.e. in Vemareddi Ramaraghava Reddi
Vs. Kondaru Seshu Reddi (supra) at page 440 the Court said:
"The legal position is also well-established that the
worshipper of a Hindu temple is entitled, in certain
circumstances, to bring a suit for declaration that the
alienation of the temple properties by the de jure Shebait is
invalid and not binding upon the temple. If a Shebait has
improperly alienated trust property a suit can be brought
by any person interested for a declaration that such
alienation is not binding upon the deity but no decree for
recovery of possession can be made in such a suit unless
the plaintiff in the suit has the present right to the
possession. Worshippers of temples are in the position of
cestui que trustent (Sic) or beneficiaries in a spiritual
sense.
.........................................
The possession and management of the property with
the right to sue in respect thereof are, in the normal course,
vested in the Shebait, but where, however, the Shebait is
negligent or where the Shebait himself is the guilty party
against whom the deity needs relief it is open to the
worshippers or other persons interested in the religious
endowment to file suits for the protection of the trust
properties. It is open, in such a case, to the deity to file a
suit through some person as next friend for recovery of
possession of the property improperly alienated or for
2035
other relief. Such a next friend may be a person who is a
worshipper of the deity or as a prospective Shebait is
legally interested in the endowment."
1948. An attempt was made to bring in Section 92 C.P.C.
where the interest of Deity is not properly observed but we find
that this issue also stand settled by the Apex Court in
Bishwanath & another Vs. Sri Thakur Radha Ballabhli &
others (supra) holding that Section 92 in such a matter has no
application. The Court in para 9, 10, 11 and 12 held as under:
9. Three legal concepts are well settled : (1) An idol
of a Hindu temple is a juridical person; (2) when there is a
Shebait, ordinarily no person other than the Shebait can
represent the idol; and (3) worshippers of an idol are its
beneficiaries, though only in a spiritual sense. It has also
been held that persons who go in only for the purpose of
devotion have according to Hindu law and religion, a
greater and deeper interest in temples than mere servants
who serve there for some pecuniary advantage see Kalyana
Venkataramana Ayyangar v. Kasturi Ranga Ayyangar, ILR
40 Mad 212 at p. 225: (AIR 1917 Mad 112 at p. 118). In
the present case, the plaintiff is not only a mere worshipper
but is found to have been assisting the 2nd defendant in the
management of the temple.
10. The question is, can such a person represent the
idol when the Shebait acts adversely to its interest and fails
to take action to safeguard its interest. On principle we do
not see any justification for denying such a right to the
worshipper. An idol is in the position of a minor and
when the person representing it leaves it in a lurch, a
person interested in the worship of the idol can certainly be
2036
clothed with an ad hoc power of representation to protect
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery,
in most of the cases it will be an indirect approval of the
dereliction of the Shebait's duty, for more often than not he
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be
open to the transferee in a suit. Should it be held that a
worshipper can file only a suit for the removal of a Shebait
and for the appointment of another in order to enable him
to take steps to recover the property, such a procedure will
be rather a prolonged and a complicated one and the
interest of the idol may irreparably suffer. That is why
decisions have permitted a worshipper in such
circumstances to represent the idol and to recover the
property for the idol. It has been held in a number of
decisions that worshippers may file a suit praying for
possession of a property on behalf of an endowment; see
Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaryab Ali
v. Bakhtawar Singh, (1883) ILR 5 All 497
Chidambaranatha Thambirarn v. P. S. Nallasiva Mudaliar,
6 Mad LW 666 : (AIR 1918 Mad 464), Dasondhay v.
Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664:
(AIR 1917 Mad 112) (FB), Radha Krishnaji v. Rameshwar
Prasad Singh, AIR 1934 Pat 584, Manmohan Haldar v.
Dibbendu Prosad Roy, AIR 1949 Cal 199.
11. There are two decisions of the Privy Council,
namely, Pramatha Nath Mullick v. Pradyumna Kumar
Mullick, 52 Ind App 245: (AIR 1925 PC 139) and
2037
Kanhaiya Lal v. Hamid Ali, 60 Ind App 263: (AIR 1933 PC
198 (1)), wherein the Board remanded the case to the High
Court in order that the High Court might appoint a
disinterested person to represent the idol. No doubt in both
the cases no question of any deity filing a suit for its
protection arose, but the decisions are authorities for the
position that apart from a Shebait, under certain
circumstances, the idol can be represented by disinterested
persons. B. K. Mukherjea in his book "The Hindu Law of
Religious and Charitable Trust" 2nd Edn., summarizes the
legal position by way of the following propositions, among
others, at p. 249 :
"(1) An idol is a juristic person in whom the title to
the properties of the endowment vests. But it is only
in an ideal sense that the idol is the owner. It has to
act through human agency, and that agent is the
Shebait, who is, in law, the person entitled to take
proceedings on its behalf. The personality of the idol
might, therefore, be said to be merged in that of the
Shebait.
(2) Where, however, the Shebait refuses to act for the
idol, or where the suit is to challenge the act of the
Shebait himself as prejudicial to the interests of the
idol, then there must be some other agency which
must have the right to act for the idol. The law
accordingly recognises a right in persons interested
in the endowment to take proceedings on behalf of
the idol."
This view is justified by reason as well by decisions.
12. Two cases have been cited before us which
2038
took a contrary view. In Kunj Behari Chandra v. Shyam
Chand Jiu, AIR 1938 Pat 384, it was held by Agarwala, J.,
that in the case of a public endowment, a part of the trust
property which had been alienated by the Shebait or lost in
consequence of his action could be recovered only in a suit
instituted by a Shebait. The only remedy which the
members of the public have, where the property had been
altenated by a person who was a Shebait for the time being
was to secure the removal of the Shebait by proceedings
under S. 92 of the Code of Civil Procedure and then to
secure the appointment of another Shebait who would then
have authority to represent the idol in a suit to recover the
idol's properties. So too, a Division Bench of the Orissa
High Court in Artatran Alekhagadi Brahma v. Sudersan
Mohapatra. AIR 1954 Orissa 11, came to the same
conclusion. For the reasons given above, with great
respect, we hold that the said two decisions do not
represent the correct law on the subject.
1949. We, therefore, answer Issue No. 1 (Suit-5) insofar as it
relates to plaintiff no. 2 (Suit-5) that it is juridical persona and
can sue or be sued through a next friend. However, this is
subject to our further answer to the issues relating to birthplace
of Lord Rama at disputed site in affirmance which we shall
discuss separately.
1950. We could have answered about plaintiff no. 1 (Suit-5)
also at this very stage but we intend first to consider the Issues
No. 12 (Suit-4) and 3 (a) (Suit-5) and to find out their effect, if
any, on the status of plaintiff 1 (Suit-5) and then shall give our
final opinion thereon. The issue whether the idol in question and
the object of worship were placed inside the disputed property
2039
or the building in the night of 22
nd
/23
rd
December, 1949 has to
be considered in the light of the concept of the "building" or the
"mosque" to the parties in the suit concerned.
1951. In para 2 of the plaint (Suit-4) the mosque has been
denoted by the letters "A, B, C, D" which covers the entire area
of outer and inner courtyard including the building (excluding
the extreme south portion which is denoted by the word
"Chabutara" on the west-south side and behind Ram Chabutara
on east-south side on the map prepared by Sri Shiv Shankar Lal,
Commissioner on 25.05.1950). No distinction has been made by
the plaintiff (Suit-4) about the disputed building within the inner
courtyard and the area and structure comprising the outer
courtyard.
1952. This pleading has made the issue slightly complicated
for the reason that onus lie initially upon the plaintiffs (Suit-4)
to show that no idols whatsoever existed upto or before
22.12.1949 in this entire area A, B, C, D which they claim to be
the "area of mosque". In fact to the same effect is their pleading
in para 1 of the written statement in Suit-5 where defendant no.
4 (Sunni Board) says that, "As a matter of fact there has never
been any installation of the deity within the premises of disputed
place of worship known as Babari Mosque and the idol in
question was stealthily and surreptitiously kept in the mosque in
the night of 22
nd
/23
rd
December, 1949." The defendant no. 4 also
deny the very existence of "Charan" or "Sita Rasoi" within the
premises of Babari mosque but then in para 22 of the written
statement (Suit-5) it says, "there is no Charan or Sita Rasoi
within the premises of Babari Mosjid and the place known as
Sita Rasoi is situated outer side the premises of the said
mosque."
2040
1953. Sri Deoki Nandan Agarwal, who initially filed Suit-5
and was plaintiff no. 3 therein, made a statement under Order X,
Rule 2 C.P.C. that the idols were kept under central dome inside
the building in the night of 22
nd
/23
rd
December, 1949. He,
however, admits his absence at the site on that day and stated
that he got this information from Mahant Paramhans Ram Das,
OPW-1. Sri Deoki Nandan Agarwal, however, added that the
above placement inside the building of the idols was done after
due ceremony. The above statement of Sri D.N. Agarwal could
not have been controverted by the learned counsel for the
plaintiffs (Suit-4). Though the process of Pran Pratishtha was
tried to be inquired from OPW-1 during cross examination by
learned counsels appearing for the Muslim parties in Suit-5 as is
evident from pages 46, 58, 78 and 124, but no question has been
asked from OPW-1 as to whether idol in question were placed
under the dome with or without ceremony as stated by Sri Deoki
Nandan Agarwal, plaintiff no. 3 (Suit-5) in his statement under
Order X Rule 2 C.P.C. Therefore, the said statement remained
uncontroverted particularly for the reason that none of the
witnesses, i.e., PW 1 to 32 has claimed that he was present when
the alleged incident of 22
nd
/23
rd
December, 1949 took place and
none could say anything on this aspect either way.
1954. OPW-1, Mahant Paramhans Ram was also examined.
He supported the version of placement of idol under the central
dome, inside the disputed building, in the inner courtyard, in the
night of 22
nd
/23
rd
December, 1949. OPW-1 has commenced his
deposition in December 1999 and at that time his age was 90
years. On page 41 and 42, he stated about the incident of 1934
and said that a dome was damaged at that time:
ss | i-i - lii i iii iin (-,| lii) i - -i
ii| | i lii i iii iin ii n --i ii| | i
2041
lii lnln ri l-iln l-i i i i ; iin r| - -i ii|
( )
"In 1934 incident, the half portion of the dome(the middle/
central dome) was broken. The half part of the middle
dome was broken from all sides. Except for the central
dome, no other part of the construction situated there was
broken." (ETC)
1955. On page 42 he said that when central dome was
damaged in 1934, no idol of Ram Lala was present thereunder.
He also said that people used to worship the place as also the
pillars whereunder the images were affixed:
l - lii lni - l i i | i -i |
i ; - l n r| i | l i i | | | i l - i i -
ri ni i i l i i | i i -i i - i - l n i
n| i | i i n i i n i i-ii - |
nii | - ln i i|| -ln i - r -i il i | -ln i i||
- l i i | i ; i - i i r| i i | - l i i
| l n i l -, ri i ni i - i - r i i i
r -i i i i | - lii | i i iin ni n r - ii
r -ii nii ii n -ii i - ni n r i -ii
-ini r| n|i n -i | | i l- nii l -i -in | - i
i l- ni n r nn n i||( z)
When the dome collapsed, there was no idol of Ram
Lala beneath it. Pooja-Paath used to be performed on
the land beneath the dome. People used to offer Pooja-
Archana to the idols carved out in the pillars beneath
the dome; those pillars had idols of male and female
deities engraved in these pillars. The idols included those
of demigods like Hanuman and so on. There was no pillar
beneath the middle dome. Prasuti Bhumi - the land
where Lord Rama was born was beneath the middle
2042
dome. I take the part beneath the middle pillar which
was in the shape of the sanctum sanctorum as also the
place surrounding it, to be the sanctum sanctorum. The
sanctum sanctorum encompassed the land beneath the
three domes and the entire land of the circumambulation
path. (E.T.C.)
1956. Then, about the placement of idols in 1949, he said:
-ln i i ii ss ii| ( os)
The idols were placed probably in the year 1949.(E.T.C)
-ln i| n; , n -r- r n ii| r -- r n i - z.oo
in ii n il - n| i -r - rn ri ni r|
( os)
It was Brahm Muhurt when the idols were
installed. Brahm Muhurt is the time after mid night i.e. at
3 AM. (E.T.C)
l l - ln i| n; i- i i r ri
i ri ii| i -i ni- i-ii i- nii i
|n r | i nii ir i i -iii i-ii i- ri
ri ii| i i| i n - i| - i i r
| i | i - n i , - i ; ni i r| ni i i |
i-i - r nii -ln i i -ir i nii ni
ii i i i nii ni, r - r| r ni| r ri
nn r l zz l - ss | i n - l i l n i
i i n - i ; i - r| r i | ( os)
A function was going on for last 8-9 days, prior to
the day of installation of the idols. By function I mean,
recitation of Ramayana and Akhand (non-stop) Kirtan.
The recitation of Ramayana was taking place at both
outside and inside of the structure. People were there
inside the structure as well. At that time, no lock had been
put at the iron grills in the walls. I cannot tell whether
2043
locks were put on those gates about one or two months or
an year after installation of the idols. It is wrong to say
that no recitation took place in the inner part of the
disputed structure in the night of 22
nd
December, 1949.
(E.T.C)
zz,zs l-, ss i - in /s.oo n ri
ri | ri l r i| nii i in| in| i||
l l --i | i-i r ; , - --i -
ii i i i r| ii n nin s.oo i n - n
- l n i r-i ni n r - -i i l n l i ni |
l - i --i | in r r , - i
liln i i ii ir| r - i `
-n - - i r| i n ( i - i - i ) -
i i | ( o)
I remained there till 7-8 AM on 22/23 December,
1949. Police was already present there and kept visiting
regularly.
On the day of the miraculous incident i.e. just after
seeing the light as a miracle, the idols were removed from
the platform and installed in the 'Garbh-grih' (sanctum
sanctorum) at about 3 AM.
Question:- Where were you at the time of the said
miracle, whether inside the disputed structure or in the
outer courtyard?
Answer:- At that time I was in outer
courtyard.(E.T.C)
zs l- ss i i - l n n -i l i i
| ni n r - i | n; , r r r| ii lnl-n - ln
i|, | ii ln-i - i- r| r ; | ii| - ri l
n i i | - l n i i | | i i l n -i r
r ; i | | ( z)
2044
"The idol placed in the sanctum sanctorum
beneath the dome after being removed from the
chabutara on 23
rd
December, 1949, was deified from
before; its deification did not take place in my presence.
The witness himself stated-Whichever idols were placed
on the chabutara were deified from before." (E.T.C.)
l -ii i ni n r nini r r -ii - li
i nii --n lr i i i- | i --ii r |
zs l - ss i n -i l -i i - l n
i | n| | i r| - --i i -i ni r ni i - l n
i i | | -i i i - -i l - -i ni i i |
( z)
The place termed as 'Garbh-grih' (sanctum
sanctorum) by me, is the birthplace of Ramchandra
according to my belief and all the Hindus. The very place
where the idols were placed on 23
rd
December, 1949,
after being removed from the platform, is considered as
Janmsthan by me and even before installation of the
idols, that place was considered Janmbhumi by me.
(E.T.C)
i - l n n -i | l i i |
i | n| - | ni i si -| - l n i | i i
- l n i i -i | | i | | ( s)
The idols, which were removed from the platform
and placed beneath the central dome, had one big and
one small idol. Both the idols were of Ramlala. (E.T.C)
1957. The above statement of OPW-1 shows that idols were
already there on the Chabutara which was in the outer courtyard
prior to 1949 and were only shifted from that Ram Chabutara
(outer courtyard) to the building under the central dome (inner
courtyard). About the existence of idol on Ram Chabutara, he
2045
deposed on page 55 and 75:
il i i- ni ;| i i-i | - ln i- n
il i l-iiln r| ( rr)
"From time immemorial, the Ram Chabutara (has been)
like this, the idol of Lord Ramlala has existed over the Ram
Chabutara from time immemorial." (ETC)
- i-i i i ii ni i nii in i
| | li - i- n - i i-i i li|
( /r)
Between my first arrival at Ayodhya and the aforesaid
resolution, I regularly had darshan of Ramlala at
Ramchabutara. (E.T.C)
1958. Further, he claim to be an eye witness of shifting of
idol from Chabutara to the inner courtyard, i.e., under the
central dome.
1959. Sri D.N. Agrawal, plaintiff no. 3 (Suit-5) in his
statement under Order X Rule 2 dated 30.04.1992 has said that
the idols were kept under the central dome inside the building in
the night of 22
nd
/23
rd
December, 1949 after due ceremonies.
There is no evidence produced on behalf of the defendant no. 4
or 5 to disprove the above statement of plaintiff no. 3 or that of
OPW No. 1.
1960. In fact none of the witnesses of plaintiffs (Suit-4), i.e.,
defendant no. 4 (Suit-5) was present in the night of 22
nd
/23
rd
December, 1949 on the disputed site when the alleged incident
took place. They had no occasion to say either way as to
whether the placement of idol was in accordance with due
ceremonies of Hindu scriptures or not, whether the same was
shifted from Ram Chabutara to the Central Dome or brought
from outside. Though in the written statement of defendant no. 5
(Suit-5), para 28, it is said, "However, Namaj has been offered in
2046
the mosque in question after 23
rd
December 1949 also and Ajan
has also been called." This statement, however, has not been
supported by any of the witnesses produced by the plaintiffs
(Suit-4) and defendant no. 4 (Suit-5). On the contrary, it is an
admitted position that since 23
rd
December, 1949 no muslim
person has entered the disputed premises (inner and outer
courtyard) as also that the idols placed inside the building under
the central dome are being continuously worshipped by Hindus.
1961. With respect to the term "mosque" used in plaint (Suit-
4), statement by the counsel for the plaintiffs (Suit-4) was made
on 28.08.1963 under Order X Rule 2 CPC that "mosque lies in A
B C D as shown in the plaint map (sketch map)."
1962. Another statement dated 20.01.1964 under Order X
Rule 2 CPC made by Mohd. Ayub counsel for plaintiff (Suit-4)
before the Civil Judge, says:
i| -l- l n ir i i-
i |i li | n / x z |- i
ni r l | -- i -- i r l-
i; i| lr | - ln i i| i| n r| r nr i|
- -ii | -i- i lr-i r | . . . . . i| -l- |
i- ili ri ilr| n i i| nil-in r
r l- ss r ri i| r| i|| r l- ss
i l| ni-| li rini| i| -l- - ll~ n
-n n ir|i| i| l- ss n i| i;
ni-|in i- ;-in i ni nr i| r| r | nr
i ni |ni i ; i- - ir- rn r l- ss
i r| - ir- i l| ii r|
"on the outer side of railing of Babri mosque and
inside the boundary of main gate towards south-east, there
is a platform measuring 17/21 feet over which a wooden
temple is built in wooden structure. No idols of Hindus ever
2047
existed nor exist inside the same. The place is also a part of
mosque of Muslims.. . . .On entering through the main gate
of Babri mosque, the construction lying on right side, were
never in existence prior to December, 1949. The same must
have been constructed by someone after December 1949.
Towards north of main building of Babri Mosque inside the
boundary wall, upto December 1949 A.D. there was never
any construction or building or Chabutara etc. Over that
place, the Chabutara termed as Sita Rasoi by the
defendants has been constructed either by defendants or
some else after December 1949." (E.T.C.)
1963. In para 5 of the plaint (Suit-4), the plaintiffs have tried
to make a distinction between mosque and the building by
stating that in the mosque but outside the main building of the
mosque there was "Chabutara". It is thus evident that the case of
the plaintiffs (Suit-4) is that inside the mosque (which they
denote as A B C D) which means the inner and outer courtyard
of the building, there was no idol prior to 22
nd
December, 1949
and it was placed surreptitiously in the night of 22
nd
/23
rd
December 1949.
1964. Most of the witnesses produced by Hindu parties have
clearly stated that idols were kept on Ram Chabutara even
before 1885 and that was being continuously worshipped by
Hindus. Sita Rasoi and Bhandar in the outer courtyard also
existed prior to 1885 and in any case before 22.12.1949.
1965. OPW 1 and OPW 2 have said that the idol of Ram
Lala kept on Ram Ram Chabutara in the outer courtyard was
placed in the inner courtyard under the central dome on 22
nd
/23
rd
December, 1949. This pre-supposes and admits the position that
the idols of Ram Lala existed in the mosque denoted by the
2048
letters A B C D in Suit-4 since much before 22
nd
December,
1949 and it was not kept in the mosque as denoted by the letters
A B C D for the first time in the night of 22
nd
/23
rd
December,
1949. The premises known by the plaintiffs (Suit-4) as mosque
already had the idols of Lord Ram Lala and in the night of
22
nd
/23
rd
December, 1949, was shifted from outer courtyard to
inner courtyard. In the statement under order Order X Rule 2
CPC the plaintiffs through counsel have tried to dispute even the
structures named as "Sita Rasoi" and "Bhandar" in the outer
courtyard till 22.12.1949 though many of their witnesses have
admitted their existence prior to the said date.
1966. It is an admitted case of the plaintiffs (Suit-4) that in
Suit-1885 a map was prepared by the Court's Commissioner
which is Exhibit A 25 (Suit-1). There, in the outer courtyard,
three structures were shown, one on the north-west side termed
as "Sita Rasoi", another on the east side but right to the eastern
entry gate termed as "Chappar" or "Bhandar" and third on the
east-south side which was called "Ram Chabutara" and which
was the subject matter of Suit-1885. This map was never
doubted in Suit 1885 by defendant no. 2 therein.
1967. PW 1, on page 24 of his statement, while admitting the
said Chabutara measuring about 17x21 feet did not deny
presence of idols thereon.
; n lr nii | -ln i i ii i
lii| r| n|| . . . . . .r r| ni n l n -ln i
l| | l ri i| i r| - r| ni ni|
"Idols of Hindu deities on this Chabutara are not
visible to the visitors. ...... I cannot tell whether idols were
seated on any wooden throne or not." (E.T.C.)
1968. Thus, in the pleadings, they have tried to dispute the
very existence of any structure of worship of Hindus even in the
2049
outer courtyard since their stand is that the idols were kept for
the first time in the Mosque on 22
nd
/23
rd
December, 1949 and
while saying so, they have treated the Mosque as a whole, i.e.
denoted by letters ABCD in the map appended to plaint (Suit-4)
which comprised of the entire area of inner courtyard and outer
courtyard. This stand, we find, stood contradicted by their
witnesses who have admitted not only the existence of certain
structures in the outer courtyard but also visit of Hindus to those
structures and is palpably wrong.
1969. The extract of relevant statement of some other
witnesses of plaintiffs (Suit-4) are as under:
(a)PW-1, Mohd. Hashim
ir| i lii | n i ni r r /
x z l- r | ;| + i; -|- r| ; + s i r|
( z)
"Towards the south of the outside gate in the east lies
a chabutra measuring 17x24 feet. Its height is 1 metre. It
has a thatched roofing." (E.T.C.)
ir ri i+ i l- i i i n
n r s n i- ii| - il- - s | in
;l r| lii; i l ssr - in - -i ri i|
( o i il- n | - r i lr| - n -i
nir i ii ni i si l ; i l- - lii r l n
| i n- -i -- r r r| r i r| | nir -n
li) r ii i i i l- - lii r r r| lii r| . .
; i - - n r| -i - l ni / n z ii i-
r| . . .; n -n | n ii| ( zrzc)
The chabutra had this thatched roofing till I went to
the house of Ayub Sahib in Lucknow to get notice prepared.
I did not get the thatched roofing mentioned in the notice
because other people had lost the case in 1885. (Paper no.
2050
44Ka being a notice in English was read out to the witness
after being translated into Hindi and a question was put to
him as to whether or not it was mentioned in this notice
that there is a wooden tent shaped structure on the
chabutra. On being so queried, the witness replied) It was
so from within, and what is written in the notice, is correct.
. . . . . .In this behalf I do not know from when the chabutra,
with the dimension of 17x21, exist. . . . . . Towards the
east-north of this chabutra lay a tree." (E.T.C.)
l- | n -l- l in i ni n
i ;l r| in i l lr i n i n i`
-n r- riln i li i -i i r ;l i ;
n| ii r| n |
i ii -i - ii l n n-| i -ln r l
i n r| in i `
-n n | in - -i rii r i ii ;l r- i ; ni
r| n i | ( zc)
"Question:- While going to the mosque towards the
west, did you not see the chabutra because Hindus
worshipped there?
Answ194.er:- We believe in 'vahdaniyat' and 'nirankar'
(formless God); that's why I do not want to see any picture.
Question:- Did you know there to be a picture or idol, due
to which you did not see towards that side?
Answer:- We had lost the case in connection with the
chabutra, hence we did not attach any importance to
it.(E.T.C.)
i r - ri ii i| n -n i r nn r
ri s i n -n i i r in r| r r i- i-| lr i
i| i ii r| i in i i r| i | . . . . .- l
ii i l i ii ( z/)
2051
My earlier statement that priests used to sit on the
chabutra, is wrong. Some people used to sit there, and this
fact is true. These ordinary people were Hindus, but not
priests or saints. . . . . . . . I threw just one glance and saw
only once. (E.T.C.)
n -n |- i n ii| . . . . . . .
ss - | ni i ; i i i | | ni i ; ~ri
i | i ni i i i i i ss - | . . . . . .
.i - r- in i| i | in i - i ; ni r|
ii| i i - i n | ni i ; rn i | r- r r|
ii l i- i n |ni i ; i i in i | ( z/)
There was a neem tree to the north of
chabutra. . .In 1949, Sita Rasoi was on a level with the
floor. The 'chulha' (hearth), 'chauki' and 'belna'
(rolling pin) at Sita Rasoi, was made of lime and brick
powder in the year 1949. . . In the beginning, we also
looked at it from a close range. There was no tension at
that time. People in general called it Sita Rasoi. We did
not see general public going to have darshan of Sita
Rasoi.(E.T.C.)
| i - i i r| | i
-n n - i i s i i r i i i i
i r| r r| ni ni| r -i i s |- |
ii in s - rn i - n r| -i - i in rn i |
; s | l r i n rn i - -i i n r|
rn i | . . . . . . . i i -ii l - | n i
l -i | i | r l -i l r| |i | ---n l
| i|| ( ssz)
"On coming inside through the eastern gate there
was a spacious shed towards the north inside the outside
wall. I cannot tell whether it was a store house or not. This
2052
long shed was beneath the neem tree. People lived in the
shed but I do not know who they were. Those who lived
under this shed were Hindus, not Muslims.. . . . . . . . The
Parikrama (circumambulation), which was built towards
the west of the attached place, was for the repair of the
wall, not for parikrama." (E.T.C.)
i i i i | i r| | i i
s i ni i i i i | | i
- | - | i i | ( sz)
"Inside the exterior wall of the attached property
were two sheds and a chabutra (rectangular terrace).
Another chabutra was adjacent to the eastern wall and
was beneath the neem tree. (E.T.C.)
i -i . rc i i - ni l i i r| | i
| n - i | i l i i | n i z x
/ i ni r | r | l - ss i n|li |
n| i| | . . . . . . . .i -i . r/ | - - -i n
i| n| | r li l r ii r l ss
i i n i li ni| r -i- | nr i r i ii i
- ; i n ii ni ii| r r| ii i - i rini|
( cz)
"Photograph no. 56 represents 21 x 17 chabutra
which is seen in the southern side on going inside
through the eastern gate of the outer wall of the disputed
property. But changes were effected after 1949. . . . . . . .
Photograph no. 57 represents an object made on wooden
tent-shaped chabutra which has found mention earlier but
it was beautified after 1949. Earlier it had been
constructed in an ordinary manner but later it was
beautified. It did not exist earlier. It may have been
constructed later. (E.T.C.)
2053
ili - - ssr -rn i i - - i
n-i- l li ii| i i i r i i l -
r| r ni l l-i r| ii i i i ni~ ii| . . . . .
. . . .-rn i i i| -l- - | | |i ii i
ni ii - l i i i i | - n -i - r| l i
i ; ni n i | n il i| n |
- - - lni| i | r -| r l - - - n |
i i i i l i i i i r | | i | l sr/
| n - -r n i i -n| i
ni i | i - l i l i i
i | i i | n i i - ni - l
| i r| r | r- i i r| i ;l r| r n
l n | i i - liii ri l i
i -n | n ilni i ii i li
ri i |ni i; i | ri i i, i ~ri i
ii- n ri | ( c/cs)
In that petition, I had considerably made mention of
the 1985 case of Mahanta Raghubar Das. Raghubar Das
was a resident of Ayodhya but I cannot say what relation
he had with the Nirmohi Akhara. . . . . . . . . Mahanta
Raghubar Das was claimant for the construction of a
temple on the chabutra which stood along the central wall
in the Babri mosque. I do not know whether Raghubar Das
was an illegal occupant of this chabutra. Asgar Ali was a
respondent in that case. It is true that Asgar Ali had filed
reply in the said litigation and contended that in the 1857
revolt Mahanta Raghubar Das had forcibly captured and
constructed a chabutra and had made a wooden temple
thereon. On that, that is, on the vacant chabutra, pooja-
paath is being performed as in a temple. I did not go
through that claim; hence, I cannot say whether Asgar Ali
2054
had mentioned in his counter claim that on entering
through the eastern gate the Bairagis (recluses ) had
constructed a store house towards the north or had
constructed Sita Rasoi or they used to perform pooja-
paath by constructing chakla (rolling disc), belan (rolling
pin) and chulha (hearth). (E.T.C.)
l ri l ssr i ii li i ii l -r n i
i ri n i | - n - nii li i i -i - r| r |ni
i ; i - - - - i ; nn i r| ii r - -i l
ni i - ii l r -l ii irn i |( /z)
(Again stated) The 1885 claim was for the whole
area and Mahanta Raghubar Das lost it. I do not know the
dimension of the disputed area. There was no dispute over
Sita Rasoi in that case. This case was only in respect of the
chabutra which he wanted to change into a
temple.(E.T.C.)
i nr ni | n - lr i ni - r l
ri ri lr i i i ; i r| r n-i- nr -l- |
r|( s)
"The place being in the shape of chabutra is in the
possession of Hindus. (Then stated) Hindus have no
possession over there; most of the place belongs to the
mosque. (E.T.C.)
i | ir nir i i i c.s.sc i
| i lii ri ri ii n s i n- -i
| -l ir i i n lr i ri n,
nir i li - i i r| li - r ri ii l
l in -n i i - s i - i li ii -l
i - r| ri ii| ( zc)
When the learned counsel drew the attention of the
witness to his 6.08.1996 statement wherein he had stated
2055
one or two Hindus used to reside at the shed and tent-like
wooden temple on the chabutra, the witness responded,
saying that he had not given any such statement and that
the public used to sit there and that he had given a
statement about the shed but not about the
temple.(E.T.C.)
r nn r l ri r i| i i i
l l| i| r| i| ssr i ri i i i i ;
-n r| r| ii| ( cs)
It is wrong that before the attachment there had
been no restriction on anybody's offering prayer or having
darshan inside. There were no cause at all to go there to
perform pooja after 1885." (E.T.C.)
- l- ii - ,ss - ni r i i i --i
n i li ni r , i l i r, r ssr i - - | l-
li ni r , | r| r i r - i r , r
l o zr r | r i i r| r i ri l ;| i
i l i r-i r - l | ssr - i r ; i | |
( cc)
"I have seen the map prepared on the cotton plot
and filed on the record of claim no. 1/89. It is taken from
the record of the 1985 case; it is its true copy and it is
certified and it is exhibit no. A-25. This map is correct.
(Himself stated) On the basis of this very map a decree
was passed in 1885 in our favour." (E.T.C.)
l r| ni ssr - -i - l--ln - nili ii,
liln ii| ; i - i i | i i i | l i i
| l i i ; n; r , i - i ; ni i i l i
r| i i | r -| r l -rn i i ssr i - - -
; n -l i | ;in -i n| i|| ( c/)
"Only this very chabutra was involved and disputed
2056
in the 1885 case. There was no dispute over the rest of
property or other particular things shown in this map. It
is true that Mahanta Raghubar Das had by means of the
1885 case sought permission for construction of temple on
this chabutra." (E.T.C.)
(b)PW-2, Hazi Mahboob Ahmed
| ni i ; i ~ri i i i r- i - i i
n i r- -l - - i n i | . . . i n rn i
l r | ni i ; r | - ri l| i i n in
r| ii| ( r)
When we went to the mosque, we saw chulha
(hearth), chauka, belna (rolling pin) of Sita rasoi ( Sita's
kitchen). . . . . . . . People said that it was Sita Rasoi. I
did not see anybody going there for darshan." (E.T.C.)
r -i - r - n l ir i i, ni i |ni i ; i
- -i ss - i ii| ( cz)
I know that a case went on in 1884 in connection
with the outside lawn, chabutra and Sita Rasoi." (E.T.C.)
i r -ni i l |ni i ; ni i s
- -ii i i; ni~ r| ii`
-n | r|, r -| r-i| i|
ri i - l r i n i n i n i | -
r| ni ni l r i in in i| ( ss)
Question:- Should I have the impression that
Muslims had no concern with Sita Rasoi, Chabutra and
shed ?
Answer:- No, Sir. That land was ours.
The Hindus certainly frequented the lawn there. I
cannot say what was the purpose of their doing
so."(E.T.C.)
| ni i ; ri ln| | i| - r| ni ni
2057
l r r| i | i i | -i; i ii; - r r|
ni i r | ( ss)
"But I cannot tell how much away Sita Rasoi was
from there. But it was at that very place and I have already
told the length and width of the lawn." (E.T.C.)
r- -l- - ili rin i ni r - i| n
ni ii| r ni -i | - ii i| n| r ni
z x / -i - | ii| ( r)
"When we entered the mosque, there was a chabutra
(rectangular terrace) to the left of court-yard. The
chabutra was in the middle of the compound and was
towards the left. This chabutra was nearly 21x17 square
feet." (E.T.C.)
; n s r| rini ii r ii| i rni ii i|
i| i n ; - in i| ; i s i|
ii ni ii| ( r)
"Nothing was done on this chabutra. It remained
vacant. People were sometimes seen sitting on it. It also
had a thatched roof." (E.T.C.)
(c)PW-3, Farooq Ahmad
i i - lr - ri n r l i--|, l -i - i
i i - i, ; - i lr in ;- -i rin r in -l-
i| i ii n r | ; n i i | n
r n l r i - l -- i n i | i n r | + ni
n - i n ;- -i ri i lr in ii ni ; n
r| in i l ri i; ii r| r| - n i | r
-r i n ni i i n i | . . ..r nn r l
; s - | i i i | i - i r i n- -i i; -l i|
i r i ri | ( zs)
Hindu fairs are held at Ayodhya such as
Ramnavami, Parikrama Mela and Sawan Mela. Hindus
2058
gather in these fairs. They also come over to see the
mosque. Many Hindus and Muslims used to come over to
see this platform (Chabutara). The Hindus assembling at
time of the said fairs, did not particularly visit this platform
(Chabutara) because there was no offering (chadhawa).
Even on occasion of the fairs, people of all religions
used to come to see the platform (Chabutara). . . . . . . It
is wrong that there was any tent like temple covered by
silver and made of wood, under this thatched roof.
(E.T.C)
n| i -i i - | i lii i -i o r/ i i
nir i li r i -i | n i s i r
li l ri r l ;- r n | | | lii| n|
r i li ri r| i|| ( so)
"(On looking at photograph no. 57 of the colored
photo album, the witness stated) this photograph is of the
same platform (Chabutara) and thatched roof, which are
currently being discussed, but it has many such things in it
which were not there in those days." (E.T.C)
i - i - i | n ri ni i i ni r- i | i
ri i n i i - i - n i i - ~i r i i i
r| r | ( sc)
Whenever the Kirtan in the name of Rama was
performed, we also used to stand up, take the name of
Rama. Rama, Allah and Khuda are all same. (E.T.C)
-| r l ; - - ni n n-i - i -i
r-i | i r | -i n| - i | n i | n-i -
i -i l i l n -| i i i r | ( c)
It is true that all the photographs contained in this
album, had been taken in the presence of my counsel.
All these photographs are of the disputed land and
2059
property. (E.T.C)
i i i ~ri l i i i n i , r
r- ss r i | i i | ( sr)
The existing marks of chakla, belan and hearth
(chulha), had been seen over there by me even before
1949." (E.T.C)
(d)PW-4, Mohd. Yasin
- | ri i - ; nri i| -l- ir| r - i|
i; lr r| ini ii| - l | l r i i | i
i i i i i r| + ni n -n| i
l i | s i i i | ( s)
In my memory, no Hindu ever came to these places
i.e. in the outer courtyard of the mosque. I never saw any
Hindu near the Chakla-Belna nor near the
aforementioned northern or southern thatched roof."
(E.T.C)
(e)PW-6, Mohd. Yunus Siddiqui
r - i li ii l r ni ssr i i
ri i i | ( )
I came to know that this chabutra had been in
existence since 1885.(E.T.C.)
(f)PW-7, Sri Hashmat Ullah Ansari
; i r| r - ri n i i | -i
r| | n| | ( so)
"Namaz was never offered at the place where these
Chabutras (raised platforms) were built in this outer
courtyard. (E.T.C.)
r + nii ni ni -l - - i i l - r|
i i | ; n i n i | l r i n n i
r i | n n r l i n i | ( sr)
"This Chabutra, mentioned above, did not form
2060
part of the mosque. Other people, that is, Hindus, before
laying idol, used to perform Bhajan-Kirtan, etc. on this
Chabutra." (E.T.C.)
(g)PW-8, Sri Abdul Aziz
ri ni ii i li | n ii i;
| i lri r| ii r ni ii| ii| | i-
ili ri r ni i rii | i ini ii| ( s)
There was a platform towards south. It did not have
any wooden throne over it. The platform was vacant. On
entering through the eastern gate, this platform lay on the
left side. (E.T.C)
(h)PW-23, Mohd Qasim Ansari
r ii i| -| r ;- i i- ni i |ni
i ; i in li| r - r| -ini| ; i - ri
ni l i i ni r r ni ni i i ;- i i -
ni l i i ni r r nn r ;| i ; i -
l i i | nr ni - i | i | ;- i i -
l i i i ni r r nn r | ( z)
This map is also correct, but I do not take to be
correct Ram Chabutra or Sita Rasoi or other things that
are marked herein. There was certainly a Chabutra but
marking it as Ram Chabutra herein is incorrect. In this
very manner, the place shown in this map existed at that
time also but the name shown herein is
incorrect.(E.T.C.)
1970. Almost all the witnesses produced on behalf of the
Hindu parties, other than those who have appeared as experts,
have stated that they were worshipping the idols of Lord Rama
at Ram Chabutara since much earlier from 1949 besides Sita
Rasoi where there were images of Chakla, Belan, Chulha etc.
Only witnesses of Nirmohi Akhara, i.e., DW 1 to DW 3/20 have
2061
also added and claimed that they also worshipped the idols
inside the building under central dome in the inner courtyard
since Nirmohi Akhara is claiming the building as temple
throughout and existence of idols therein simultaneously.
1971. Be that as it may, in view of the overwhelming
evidence as also the evidence of Muslim side, we have no
manner of doubt that in the outer courtyard, there existed at least
three structures; (1) A Chabutara, called as 'Ram Chabutara'; (2)
A Chhappar, termed as 'Bhandara' on north east side of gate of
outer boundary wall and a place called as 'Sita Rasoi' or
'Kaushalya Rasoi' or "Chhathi Pooja Sthal" on the north west
side. All these three places existed since prior to 1885 inasmuch
in Suit-1885 Commissioner's map denoted all these places and
existence thereof in the map is not disputed, though the
terminology used is sought to be disputed by some of witnesses
of the Muslim parties. Further in the map prepared by Sri Shiv
Shankar Lal, Pleader, submitted to the Court along with his
report on 25.5.1980, these three places have been shown. In the
objections filed by the defendants no. 1 to 5 (Suit-1) at that time,
we find that there is no allegation regarding wrong preparation
of the map but what was objected is that in respect to certain
parts, nomenclature given by Sri Shiv Shankar Lal was not
acceptable to them. In this context, it was observed by the Civil
Judge, Faizabad in his order dated 20.11.1950 admitting
Commissioner's report as evidence, that the nomenclature given
by Sri Shiv Shankar Lal shall not be final and shall be
considered in the light of the evidence adduced by the parties.
1972. Now in Suit-4 the pleadings of the plaintiffs are that
the idols and object of worship were placed inside the
"building" in the night intervening 22
nd
/ 23
rd
December, 1949 as
2062
alleged in para 11 of the plaint and the term "building"
according to the averments made in the plaint means the area
denoted by letters ABCD in the map appended to the plaint.
This area covers the entire disputed area, i.e., outer courtyard
and inner courtyard. It is not their case that the idols though
existed inside the said building but were kept under the three
dome structure for the first time on 22
nd
/23
rd
December 1949. In
view of the fact that three non-Islamic structures were
continuing in the outer courtyard for the last several decades and
used to be visited by the Hindus for worship, onus lies upon
them to prove that in this entire building which they claim to be
the area covered by the letters ABCD in the map appended to
the plaint (Suit-4) no idol at all ever existed before 23
rd
December 1949. They have miserably failed to prove it.
1973. The case of the plaintiffs (Suit-5) and other Hindu
defendants (except Nirmohi Akhara) is very clear that the idols
were already present on Ram Chabutara in the outer courtyard
and in the night of the 22
nd
/23
rd
December 1949, the same were
placed under the central dome of three dome structures in the
inner courtyard. There is enough evidence to prove, as per the
above discussion, that the idols kept at Ram Chabutara were
being worshipped by Hindus since a long time. No doubt or
dispute has ever been raised earlier about the consecration of
those idols, nor in the present cases it is pleaded that those idols
(at Ram Chabutara) were not consecrated in accordance with the
Shastrik procedure.
1974. Sri Deoki Nandan Agarwal in his statement under
Order X Rule 2 has also said that idol which was kept under the
central dome in the three dome structure in the inner courtyard
on 22
nd
/23
rd
December 1949 was a Chal Vigrah and this
2063
statement he has made again on the basis of the information
received from OPW 1. We find from a perusal of the cross
examination of OPW 1 that on this aspect and in respect to the
idol so placed, no question has been asked whether the
statement of Sri Deoki Nandan Agarwal on this aspect is correct
or not and whether OPW 1 gave this information to him or not.
This statement of plaintiff 3, Sri D.N. Agarwal, therefore,
remained uncontroverted.
1975. The existence of Ram Chabutara and Sita Rasoi in the
precinct of disputed site since long in our view cannot be
doubted though a serious attempt has been made on this aspect
also. We presume at this stage that the building in dispute was
constructed in 1528 AD at the command of Babar by Mir Baqi.
The dividing wall having windows etc. was not constructed at
that time. This partition was made after 1855 AD as they
claimed. The suggestion of pro mosque parties is that the
alleged Chabutara came into existence sometimes between 1855
to 1860 and despite some orders passed by the authorities of the
then Government, for removal of the said Chabutara the same
continued to exist and was not removed, but this also, we find,
has not been proved.
1976. The fact remains that it is now a established fact which
is not challenged by the Muslim parties that the Chabutara on
the south eastern side of the disputed building has been
continuing atleast from 1857 and onwards. Though an attempt
has been made to dispute whether any idol was kept on the said
Chabutara and whether worship was continuously going on
thereat but this also has not been proved. On the contrary, we
find that there is abundant evidence to show that Hindus were
worshipping the said Chabutara believing that it symbolises and
2064
depicts the birthplace of Lord Rama and that some idol(s) also
existed thereat.
1977. There are documentary as well as oral evidence
available on record some of which we discuss hereinafter.
1978. The application dated 25.09.1866, Exhibit A-13 (Suit-
1) (Register 6, page 173-177) submitted by Mohd. Afzal,
Mutawalli Masjid Babari situated at Oudh says:
| -r|i i ri ni r l n |i n i ilni
- -ii si -| | i -| ;ii i - n ni i |
r i i - ;rini n i | ........... iii r-i
ni ilni ili i l i
ni si -| i -| i; r .......... ri --|i ; i
r l i-n lni i-| - r - r il ri l i
ilni -l- -r r il ii li|
"About a months back the respondents Tulsidas etc.
with the intention of planting idols etc in it have
constructed a Kothri in an illegal way, within the
compound of the Masjid.......Bairagiyan got the
Chabootra constructed overnight. Because of this
construction, there occurred so much rioting in the local
populace. Now a small Kothri has been constructed. .... it
is requested that before the riot is created by Bairagis this
Kothri may kindly be dismantled and the Masjid may be
protected from the fury of Bairagis. (E.T.C.)
1979. Exhibit 30 (Suit-1) (Register 5 page 107-116-C) is a
copy of an application of 1877 seeking execution of the order
dated 7th November 1873 for removal of the idol, i.e., Charan
Paduka said to have been created in the disputed building. A
perusal of the said document shows that despite the order having
been passed on 7th November 1873 the same continued to exist
and was not removed. In para 6 it says:
2065

.....

i| i| n r -n - nil r - r r| -i; n; ........ i
rini - ri ini r i i ; ni r l r
- r i| r i ri n si-i i ri i-n i
il - ii i i| | li r|
"That is to say that as per orders the idol has not yet been
removed. .... So he has made a Chulha within the said
compound which has never been done before. There was a
small Chulah for puja which he has got extended." (E.T.C.)
1980. Besides it also show that in 1877 there also exist a
Chulha in the aforesaid premises, complaint whereof was also
made.
1981. Exhibit 15 Suit 1 (Register 5 Page 41-43) : It is a
copy of the report dated Nil of Deputy Commissioner Faizabad
submitted pursuant to the Commissioner Faizabad order dated
14
th
May, 1877 passed in Misc. Appeal No.56, Mohd. Asghar
Vs. Khem Dass. This report appears to have been called by the
Commissioner in respect to a complaint made against raising of
a doorway in the northern wall of the disputed building. The
justification thereof was to provide a separate room on fair day
to visitors to the Janam Asthan. The document being old there
appears to be certain mistakes may be on account of legibility. It
reads as under:
A doorway has recently been opened in the wall of
the Janum-Ashtan not at all in Baber's mosque, but in the
wall which infront is divided from the mosque by a railing.
This opening was necessary to give a separate route on fair
days to visitors to the Janum-Asthan. There was one
2066
opening only, so the cruch (sic:rush) was very great and
life was endangered. I marked out the spot for the opening
myself so there is no need to depute any Europe officer.
This petition is merely an attempt to annoy the Hindu by
making it dependent on the pleasure of the mosque people
to open or close the 2
nd
door in which the Mohammedans
can have no interest.
2. No objection was made to the opening of this second
door.
3. On the 10
th
November 1873 Baldeo Das was ordered
in writing by the Deputy Commissioner to remove an
image place on the janam-Asthan platform. A report was
made by someone (probably a police officer) that he had
gone to the house of Baldeo dass and found that the latter
had gone to Gonda. The order was explained to Gyandas
and other priests who said could not carry out the order.
The order passed on this (15) was that if the other party
(i.e. the complainant) would name person on whom an
order of removal could be served-such should be served.
(c) There apparently the matter rested. There is no later
on the file.
1982. Pursuant to this report, the Commissioner decided the
appeal on 13
th
December, 1877, rejected the same. The copy of
the said order is Exhibit 16 (Suit-1) (Page 45 Register 5) and it
reads as under:
As the door in question was opened by the Deputy
Commissioner in the interests of the public safety I decline
to interfere. Appeal dismissed.
1983. Exhibit 34 (Suit-1) (Register 5 page 131) is a copy of
the order dated 12.01.1884 passed by Assistant Commissioner,
2067
Faizabad. It says as under:
........ The outer door will be left open. No lock
will be allowed upon it. It is absolutely essential to
observe the strictest neutrality and maintain the status
quo.
1984. This shows that in order to prevent any obstruction to
anyone from entering the disputed premises he directed for not
keeping lock on the doors and left the same open.
1985. Exhibit 17 (Suit-1)(Page 47-53 Register 5) is a copy
of a judgment dated 18
th
June, 1883 passed by Sri Hari Kishan,
Sub-Judge, Faizabad in Suit No.1374/943 of 1883 dismissing
the claim of Syed Mohd. Asghar filed against Raghubar Dass
claiming rent for user of Chabutara and Takht which admits the
possession of Raghubar Das but failed to sustain his claim for
rent.
1986. The aforesaid documents disprove the claim of
Muslims. It appears that Mohd. Asghar in Suit No. 1374/943 of
1883 produced a witness namely Ganga Prasad, Qanungo, who
made some statement in favour of Mohd. Asghar but the same
was disbelieved by the Sub Judge. He also severely castigated
the conduct of the said Qanungo, an official of the Government,
making statement in favour of a private party in a private
dispute which was not supported by any documentary evidence
though the nature of the dispute warranted some documentary
evidence.
1987. Exhibit 18 (Suit-1)(Page 55-57 Register 5) is an
application dated 2
nd
November, 1883 of Mohd. Asghar showing
himself as Mutawalli and Khatib Masjid Babari situated at Oudh
complaining that he is entitled to get the wall of the mosque
white-washed but is being obstructed by Raghubar Das though
2068
he has right only to the extent of Chabutara and Rasoi but the
wall and the gate etc. is part of the mosque and the complainant
is entitled to get it white-washed. The order passed on the said
application is Exhibit 27 (Suit-1) (Page 95-97 Register 5). The
Assistant Commissioner Faizabad passed the following order
dated 22
nd
January, 1884:

i - -i ril| | i r i | i r - ir
l-| l- ;l-ni | n; i i i i r-i;i | n;
l | | rini ii -l | ---n n r
i - r-- n i -ni li ni l | ii
nii i r lrin | r l - i- |- rin ii
i i i ; -n i| -iin | i |
r - r i l
inin rii ili n ri ~- -
(Hindi Transliteration)
Today the case was put up in the presence of the
parties, who have been informed of the orders of the
Deputy Commissioner and Raghubar Das has been
restricted not to repair the inner or outer portion of the
Masjid and Mohammad Asghar has been admonished that
the outer gate of the Masjid should not be locked. This was
important that long tradition should be maintained and no
intervention should be done in it. Ordered these papers
2069
should be consigned to office." (E.T.C.)
1988. Exhibit A-25 (Suit-1) (Register 7, page 277-281) is a
copy of a map prepared and submitted on 06.12.1885 by Sri
Gopal Sahai Amin, Court's Commissioner appointed by Sub-
Judge, Faizabad in Suit-1885 of the disputed place. It mentions
in the outer courtyard, existence of Sita Rasoi and Ram
Chabutara and this has continued to exist in the outer courtyard
even in 1950 as is evident from the map prepared by Sri Shiv
Shankar Lal Pleader, Commissioner appointed by Civil Judge,
Faizabad in Suit-1 submitted on 25.05.1950.
1989. So far as the existence of Sita Rasoi which was on the
north west side in the outer courtyard is concerned, nothing has
come on record to show as to when it was actually constructed.
On the contrary, the record shows that it existed prior to 1885.
Its actual time and period when it was constructed is
unascertainable. It is beyond comprehension that Mir Baqi or
anyone else, while constructing a mosque at the disputed place
could have spared some Hindu structure(s) to continue, may be
smaller in size, in the precinct of mosque so as to be worshipped
by Hindus inside the premises of mosque. We put this question
to Sri Jilani also and he frankly stated that no Muslim would
allow idol worship in the precinct of a mosque.
1990. Considering the evidentiary admissions in Avadh
Kishore Dass Vs. Ram Gopal (supra) the Court said:
It is true that evidentiary admissions are not conclusive
proof of the facts admitted and may be explained or shown
to be wrong, but they do raise an estoppel and shift the
burden of proof on to the person making them or his
representative-in-interest. Unless shown or explained to be
wrong, they are an efficacious proof of the facts admitted.
2070
(para 23)
1991. In Sitaramacharya Vs. Gururajacharya, 1997(2)
SCC 548 the Court said:
Under Section 18 of the Evidence Act the admission
made by the party would be relevant evidence. Section 31
provides that "admissions are not conclusive proof of the
matters admitted but they may operate as estoppel under
the provisions hereinafter contained". In view of the
admissions referred to earlier they appear to be
unequivocal and the finding recorded by the appellate
Court is cryptic. On the other hand, the trial Court has
gone into the evidence on issues in extenso and considered
the evidence and the appellate Court has not adverted to
any of those valid and relevant consideration made by the
trial Court. The High Court has dismissed the second
appeal holding that they are findings of fact recorded by
the appellate Court on appreciation of evidence. We think
that the view taken by the High Court is not correct in law.
The admissions in the written statement in the earlier
proceedings, though not conclusive, in the absence of any
reasonable and acceptable explanation, it is a telling
evidence heavily loaded against the respondent. (para 6)
1992. In United India Insurance Co. Ltd. and another Vs.
Samir Chandra Chaudhary, 2005(5) SCC 784 the Court said:
Admission is the best piece of evidence against the
persons making admission. As was observed by this Court
in Avadh Kishore Das v. Ram Gopal and Ors., AIR (1979)
SC 861 in the backdrop of Section 31 of Indian Evidence
Act, 1872 (in short the `Evidence Act') it is true that
evidentiary admissions are not conclusive proof of the facts
2071
admitted and may be explained or shown to be wrong; but
they do raise an estoppel and shift the burden of proof
placing it on the person making the admission or his
representative-in-interest. Unless shown or explained to be
wrong, they are an efficacious proof of the facts admitted.
As observed by Phipson in his Law of Evidence (1963
Edition, Para 678) as the weight of an admission depends
on the circumstances under which it was made, these
circumstances may always be proved to impeach or
enhance its credibility. The effect of admission is that it
shifts the onus on the person admitting the fact on the
principle that what a party himself admits to be true may
reasonably be presumed to be so, and until the presumption
is rebutted, the fact admitted must be taken to be
established. An admission is the best evidence that an
opposing party can rely upon, and though not conclusive is
decisive of matter, unless successfully withdrawn or proved
erroneous. (See Narayan Bhagwantrao Gosavi Balajiwale
v. Gopal Vinayak Gosavi and Ors., AIR (1960) SC 100).
(para 11)
1993. In Mahendra Manilal Nanavati Vs. Sushila
Mahendra Nanavati, AIR 1965 SC 364 the Court said:
The provisions of the Evidence Act and the Code of Civil
Procedure provide for Courts accepting the admissions
made by parties and requiring no further proof in support
of the facts admitted. (para 22)
23. Section 58 of the Evidence Act inter alia provides
that no fact need be proved in any proceeding which the
parties thereto or their agents agree to admit at the hearing
or which by any rule of pleading in force at the time they
2072
are deemed to have admitted by their pleading. Rule 5 of
O. VIII, C.P.C., provides that every allegation of fact in the
plaint, if not denied specifically or by necessary
implication or stated to be not admitted in the pleadings of
the defendant, shall be taken to be admitted except as
against a person under disability.
24. Both these provisions, however, vest discretion in the
Court to require any fact so admitted to be proved
otherwise than by such admission. Rule 6 of O. XII of the
Code allows a party to apply to the Court at any stage of a
suit for such judgment or order as upon the admissions of
fact made either on the pleadings or otherwise he may be
entitled to, and empowers the Court to make such order or
give such judgment on the application as it may think just.
There is therefore no good reason for the view that the
Court cannot act upon the admissions of the parties in
proceedings under the Act.
25. Section 23 of the Act requires the Court to be
satisfied on certain matters before it is to pass a decree.
The satisfaction of the Court is to be on the matter on
record as it is on that matter that it has to conclude
whether a certain fact has been proved or not. The
satisfaction can be based on the admissions of the parties.
It can be based on the evidence, oral or documentary, led
in the case. The evidence may be direct or circumstantial.
29. . . it is quite competent for the Court to arrive at the
necessary satisfaction even on the basis of the admissions
of the parties alone. Admissions are to be ignored on
grounds of prudence only when the Court, in the
circumstances of a case, is of opinion that the
2073
admissions of the parties may be collusive. If there be
no ground for such a view, it would be proper for the
Court to act on those admissions without forcing the
parties to lead other evidence to establish the facts
admitted, unless of course the admissions are
contradicted by the facts proved or a doubt is created by
the proved facts as regards the correctness of the facts
admitted.
1994. In State of Bihar and others Vs. Sri Radha Krishna
Singh and others, AIR 1983 SC 684 various aspects of the
Evidence Act came to be considered. With respect to genealogy
the Court said:
18. . . . . the plaint genealogy is the very fabric and
foundation of the edifice on which is built the plaintiff's
case. This is the starting point of the case of the plaintiff
which has been hotly contested by the appellant. In such
cases, as there is a tendency on the part of an interested
person or a party in order to grab, establish or prove an
alleged claim, to concoct, fabricate or procure false
genealogy to suit their ends, the courts in relying on the
genealogy put forward must guard themselves against
falling into the trap laid by a series of documents or a
labyrinth of seemingly old genealogies to support their
rival claims.
19. The principles governing such cases may be
summarized thus:
(1) Genealogies admitted or proved to be old and relied on
in previous cases are doubtless relevant and in some cases
may even be conclusive of the facts proved but there are
several considerations which must be kept in mind by the
2074
courts before accepting or relying on the genealogies:
(a) Source of the genealogy and its dependability.
(b) Admissibility of the genealogy under the Evidence Act
(c) A proper use of the said genealogies in decisions or
judgments on which reliance is placed.
(d) Age of genealogies.
(e) Litigations where such genealogies have been accepted
or rejected.
(2) On the question of admissibility the following tests must
be adopted:
(a) The genealogies of the families concerned must fall
within the four-corners of s.32 (5) or s. 13 of the Evidence
Act.
(b) They must not be hit by the doctrine of post litem
motam.
(c) The genealogies or the claim cannot be proved by
recitals, depositions or facts narrated in the judgment
which have been held by a long course of decisions to be
inadmissible.
(d) Where genealogy is proved by oral evidence, the said
evidence must clearly show special means of knowledge
disclosing the exact source, time and the circumstances
under which the knowledge is acquired, and this must be
clearly and conclusively proved,.
24. It is well settled that when a case of a party is based
on a genealogy consisting of links, it is incumbent on the
party to prove every link thereof and even if one link is
found to be missing then in the eye of law the genealogy
cannot be said to have been fully proved.
1995. With respect to Section 5 of the Evidence Act the
2075
Court said:
32. . . . . Ex.J. being an entry in a Register made by a
public officer in the discharge of his duties squarely falls
within the four corners of s. 35 of the Evidence Act and is,
therefore, doubtless admissible. In this connection, the
learned Judge observed thus:
" . . . . There can thus be no doubt that it is admissible
under section 35 of the Evidence Act."
33. . . . . . We agree with the unanimous view of the High
Court that Ex. J is admissible. . . . . . . all the conditions
of s. 35 of the Evidence Act are fully complied with and
fulfilled. . . . . It is a different matter that even though a
document may be admissible in evidence its probative
value may be almost zero and this is the main aspect of the
case which we propose to highlight when we deal with the
legal value of this document.
35. In our opinion, Ex. J. squarely falls within the four
corners of s. 35 of the Evidence Act which requires the
following conditions to be fulfilled before a document can
be admissible under this section.
(1) the document must be in the nature of an entry
in any public or other official book, register or
record,
(2) it must state a fact in issue or a relevant fact,
(3) the entry must be made by a public servant in the
discharge of his official duties or in performance of
his duties especially enjoined by the law of the
country in which the relevant entry is kept.
36. . . . . . he was entrusted with the task of and enjoined
the duty of ascertaining the possession of various landlords
2076
for the purpose of taking suitable steps in the matter. .
. . . The question as to whether the relevant fact is proved
or not is quite a different matter which has nothing to do
with the admissibility of the document but which assumes
importance only when we consider the probative value of
a particular document. . . . . . Thus, all the aforesaid
conditions of s. 35 are fully complied with in this case.
38. In P.C. Purushothama Reddiar v. S. Perumal,
(1972) 2 SCR 646 this Court while considering the effect
of s. 35 of the Evidence Act observed as follows:-
". . . . . The first part of s. 35 of the Evidence Act
says that an entry in any public record stating a fact in
issue or relevant fact and made by a public servant in the
discharge of his official duty is relevant evidence. Quite
clearly the reports in question were made by public
servants in discharge of their official duty."
1996. With respect to admissibility of document and
probative value the Court in State of Bihar and others Vs. Sri
Radha Krishna Singh (supra) said:
40. We may not be understood, while holding that Ex.J is
admissible, to mean that all its recitals are correct or that
it has very great probative value merely because It happens
to be an ancient document. Admissibility of a document is
one thing and its probative value quite anotherthese two
aspects cannot be combined. A document may be
admissible and yet may not carry any conviction and
weight or its probative value may be nil.
47. We would like to mention here that even if a
document may be admissible or an ancient one, it cannot
carry the same weight or probative value as a document
2077
which is prepared either under a statute, ordinance or an
Act which requires certain conditions to be fulfilled. This
was the case in both Ghulam Rasul Khan's (AIR 1925 PC
170) and Shyam Pratap Singh's cases (AIR 1946 PC 103)
(supra).
1997. In various gazetteers also this has been noticed. The
entry of Hindu public before December, 1949 inside the
building premises has not been disputed even by the witnesses
of plaintiffs (Suit-4).
1998. Considering as to how a fact can be said to have been
proved in T. Shankar Prasad Vs. State of A.P., 2004(3) SCC
753 the Court said that direct evidence is one of the modes
through which a fact can be proved but that is not the only mode
envisaged in the Evidence Act. In para 11, 12, 13 and 14 the
Court said:
11. Proof of the fact depends upon the degree of
probability of its having existed. The standard required for
reaching the supposition is that of a prudent man acting in
any important matter concerning him. Fletcher Moulton
L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd.
(1911 (1) KB 988) observed as follows:
"Proof does not mean proof to rigid
mathematical demonstration, because that is
impossible; it must mean such evidence as would
induce a reasonable man to come to a particular
conclusion".
12. The said observation has stood the test of time and
can now be followed as the standard of proof. In reaching
the conclusion the Court can use the process of inferences
to be drawn from facts produced or proved. Such
2078
inferences are akin to presumptions in law. Law gives
absolute discretion to the Court to presume the existence of
any fact which it thinks likely to have happened. In that
process the Court may have regard to common course of
natural events, human conduct, public or private business
vis-`-vis the facts of the particular case. The discretion is
clearly envisaged in Section 114 of the Evidence Act.
13. Presumption is an inference of a certain fact drawn
from other proved facts. While inferring the existence of a
fact from another, the Court is only applying a process of
intelligent reasoning which the mind of a prudent man
would do under similar circumstances. Presumption is not
the final conclusion to be drawn from other facts. But it
could as well be final if it remains undisturbed later.
Presumption in law of evidence is a rule indicating the
stage of shifting the burden of proof. From a certain fact or
facts the Court can draw an inference and that would
remain until such inference is either disproved or dispelled.
14. For the purpose of reaching one conclusion the
Court can rely on a factual presumption. Unless the
presumption is disproved or dispelled or rebutted the Court
can treat the presumption as tantamounting to proof.
However, as a caution of prudence we have to observe that
it may be unsafe to use that presumption to draw yet
another discretionary presumption unless there is a
statutory compulsion. This Court has indicated so in
Suresh Budharmal Kalani v. State of Maharashtra (1998
(7) SCC 337):
"A presumption can be drawn only from
factsand not from other presumptionsby a
2079
process of probable and logical reasoning".
1999. Though plaintiffs (Suit-3) have pleaded that the idols
in question were already there under the central dome of the
disputed building inside the inner courtyard for time
immemorial and nothing happened in the night of 22nd/23rd
December, 1949 but the plaintiffs (Suit-4 and 5) have
categorically pleaded that the idol(s) were placed in the disputed
building in the night of 22nd/23rd December, 1949. We
propose to find out whether plaintiffs (Suit-3) have discharged
burden of showing idols under the central dome prior to
22
nd
/23
rd
December, 1949.
2000. Sri Deoki Nandan Agarwal who earlier represented the
plaintiffs 1 and 2 (Suit-5) as their next friend made a statement
under Order X Rule 2 C.P.C. on 30.04.1992 and said:
In the early hours of December 23, 1949, the idol of
Bhagwan Sri Ram Lala, which was already on Ram
Chabutra was transferred to the place where He presently
sits, that is, under the central dome of the disputed
building. I was not personally present at that time at the
place. This information was conveyed to me by Paramhans
Ram Chandra Das of Digamber Akhara. This transfer of
the idol was done by Paramhans Ram Chandra Das and
Baba Abhi Ram Das and certain other persons whose
names I do not remember at the moment....
2001. DW 2/1-2 has also said on page 12, 42 and 128:
ss - liln l i | ii iin ii n ni n r
r i ii| ni n r ni- n| n - i i | i iin nii
i- | r |i i| |i n i iin ii|
i i - l - n n i - - i l - i i i
ni i i - ni i i | -n n i i l r ni i
i i i i -i i i i | ( z)
2080
In 1949 the central portion of the disputed
premises, i.e, sanctum (Garbh Grih) was attached. Garbh
Grih meant the portion below the three domed building and
the appurtenant land in front thereof upto the grill wall.
Towards east of the attached property, the store of Ram
Janmbhumi and Ram Chabutara existed. Towards
north, the places of four-footprints and Chauka-Belan
(Utensils used in Indian kitchen) existed. (ETC)
n i| -l- -n r| r ; i|, n n | i
ni r i / l- x z l- -ii i i- ni -i ii|
liln i iiii r i- ni i| -n ri ni| ( z)
Till the Babri mosque was not demolished, there
was an appurtenant 17 feet x 21 feet Ramchabutara. Along
with the disputed structure, the Ramchabutara was also
demolished. (E.T.C)
- r lii r l srs ; o - il | iir - -
i- ni |ni i ; - ri i ri n r , nl i ;
ni r| l-|| ; i i - iii lii r | r
i - l lni - i ii, r - n i r| r| - n r i
r| r l i il | iir i i i srs ; o - -in ri
ni ii i r|| - n ni ; in | ii| r i ; i
- i r l srs ; o - il | iir i i i r|| r ri
nn r l srs ; o - i- ni |ni i ; -
i lin i ; i-i r| r ; | ( zs)
I have written that in 1859, during the time of Wajid
Ali Shah, attempts had been made to vandalise Ram
Chabutra and Sita Rasoi but to no avail. I have written this
portion on the basis of my study. I do not remember in
which book I had read this portion. I do not remember
whether the reign of Wajid Ali Shah had come to an end or
not in 1858. I neither know nor remember whether Wajid
2081
Ali Shah was Nawab or not in 1859. It is wrong to say that
no incident occurred in 1859 which involved attempts to
damage Ram Chabutra and Sita Rasoi. (E.T.C)
2002. The State authorities have filed their written statement
in Suit-1 and 3 wherein they have also taken this stand that the
idols were kept under the central dome of the disputed building
in the night of 22
nd
/23
rd
December, 1949. Though this fact has
been seriously disputed by plaintiffs (Suit-3) and a large number
of witnesses have been produced by them to demolish this fact
but we find a self contradiction in those statements and for
reasons more than one as we shall discuss now, the statements
of most of such witnesses produced on behalf of plaintiff (Suit-
3) are uncreditworthy.
2003. Plaintiffs (Suit-3) have examined twenty witnesses i.e.
D.W.-3/1 to 3/20. Almost all the witnesses have filed their
affidavits under Order XVIII Rule 4 C.P.C., as permitted by this
Court, to depose their statement in-chief and all these affidavits
are virtually similar, containing prototype statements with minor
corrections or variations here and there.
2004. The basic submission is that the building has all along
been worshipped by Hindus, managed by the priest and agents
of Nirmohi Akhara and idols were already there under the
central dome of the disputed building much before 1949. Hindus
were regularly worshipping by entering into the disputed
building, i.e., inner courtyard prior to 1949. They have also
denied any incident of 22/23
rd
December, 1949 with respect to
placement of the idols inside the building under the central
dome since it was already there.
2005. For the purpose of Suit-3, the disputed site means only
"the inner courtyard". The aforesaid Suit-3 has not been filed
2082
with respect to any part of the premises constitute part of the
outer courtyard. Therefore, qua Suit-3, the "disputed site" or
"disputed area" or "disputed building" means only the "inner
courtyard" and the building existed thereat. As per the plaint
statement in Suit-3, the temple of Lord Rama existed at the
disputed site since time immemorial. They denied any battle of
Babar with the then ruler at Ayodhya, construction by Babar or
his agent in 1528 AD, riot or dispute of 1934 as also the alleged
incident of placement of idol in the night of 22/23 December,
1949 in the disputed building. It is in support of these
averments, twenty witnesses have been produced on behalf of
the plaintiff (Suit-3). In fact, in the plaint, nothing has been said
about 1528 or 1934 except that no Muslim has ever allowed or
admitted to enter atleast ever since the year 1934, as is evident
from para 5 thereof but in replication, these incidents have been
disputed.
2006. The respondents no.6 to 8 in their written statement
gave the date of construction of the disputed building as mosque
in 1528 AD by Babar, its maintenance through the grant
received from the then Emperor and thereafter by State
authorities etc. and continued Namaz till 16
th
December, 1949.
In reply thereto, the replication filed by the plaintiff states that
no property was constructed by Babar as mosque but throughout
it has been a temple of Lord Rama and that the plaintiffs are in
possession of the said temple since time immemorial from the
date of the construction of the temple.
2007. Clarifying their stand, Sri Sarab Jeet Lal Verma,
Advocate appearing on behalf of the plaintiffs (Suit-3) before
the Civil Judge made a statement on 17
th
May, 1963 under Order
X Rule 2 C.P.C. that the property in suit is believed to be the
2083
birth place of Lord Ram Chandra and so there is a temple of
Lord Ram Chandra on it. The management and control of this
temple is that of plaintiffs and property is not dedicated to the
idol though the temple is made on the land which is the birth
place of lord Ram. It is owned by the plaintiffs and the temple
was made by the plaintiffs. He further clarified that the suit is
confined to the property shown by letters E F G H I J K L in the
map appended to the plaint (Suit-3).
2008. All the witnesses of plaintiff (Suit-3) have been cross-
examined at very great length to contradict them and to extract
truth from the. In T. Shankar Prasad Vs. State of A.P. (supra)
in respect to the testimony of a witness cross-examined and
contradicted with the leave of the Court by the party calling him
with reference to Section 154 of the Evidence Act the Court
said:
It is for the judge of fact to consider in each case whether
as a result of such cross-examination and contradiction,
the witness stands thoroughly discredited or can still be
believed in regard to a party of his testimony. If the judge
finds that in the process the credit of the witness has not
been completely shaken, he may after reading and
considering the evidence of the said witness, accept in the
light of the other evidence on record that part of his
testimony which he found to be creditworthy and act upon
it. (para 24)
2009. It is now in the context of the above stand of the
plaintiffs (Suit-3) we would examine the statements made by
their witnesses.
2010. DW 3/1 Mahant Bhaskar Das, Sarpanch Shri
Manch Ramanandiya Nirmohi Akhara, Ramghat, Ayodhya
2084
besides other, firstly said in para 9 of the affidavit that Ram
Janam Bhumi and all the surrounding, small and big temples
and religious place like Chathi Poojan Sthal, Ram Chabutara
Mandir Sthan, Shashthamukhi Shankar Bhagwan, Ganesh Ji,
Seeta Koop Mandir, Gufa Mandir, Sumitra Mandir, Lomash
Samadhi etc. are all the property of Nirmohi Akhara. It is in
their possession and management for last several hundred years
prior to the attachment and they have continued to look after the
same till acquisition.
2011. Then in para 10 of the affidavit he has specifically said
that from 1946 to 1949, in the internal part of the main temple,
Nirmohi Akhara through its Pujaries have continued worship
including other religious places like Ram Chabutara, Shashtha
Mukhi Shankar Bhagwan Sthal and Chathi Poojan Sthal and that
no Namaz has been offered in the disputed site from 1946 to
1949. In para 81 he said that Bhagwan Ram Lala is inside the
disputed building prior to 1934, and, since 1934, Nirmohi
Akhara is continuously having its possession. It, however,
admits in para 48 that there was police surveillance at the
eastern gate of Mandir Ram Janam Bhoomi prior to 22/23
December, 1949 and Police Chauki was also established in the
north-east corner of temple. In para 56, he has admitted that
Raghubar Das was the Mahant of Nirmohi Akhara prior to 1885
and had filed a case in respect to Ram Chabutara in his own
name and not on behalf of Nirmohi Akhara. In para 62,
however, he has denied about shifting of idol from Ram
Chabutara on 22/23 December, 1949.
2012. Having said so, he has made very interesting
statements in cross examination. Firstly he has admitted that a
mosque was constructed in 1528 AD after demolition of Sri
2085
Ram Janam Bhoomi temple in page 47:
oi| -l- i l-i i r i ii`
o rzs - | i - - i l - - l ni -l -
i ; n; i | | ( /)
"Question:- When was Babri mosque built?
Answer:- The mosque was built in the year 1528 by
demolishing Sri Ramjanmbhumi temple. (ETC)
r nn i i ni ii rzs ri liln i
i r in - i | r , r| | r| r | r nn i /c
i r i r| r nni i -i n i -i n r i r
i i l i | i r nn i ss - r i i i |
"This conflict used to take place since beginning, when the
disputed structure was built over there in the year 1528. I
have heard this from my ancestors, but have not read it
anywhere. This conflict broke out on 76 occasions. This
conflict has continued from the time of Babar to the British
period and it last broke out in the year 1934." (E.T.C.)
l -il- ,ii i n ii i i; ri i l ri n r , ;
ii - l n n i i -il- - l rzs - lnii
ni ii| i i rzs - ni i i ni i i , r -
l -i l - ,i i i i ni i i i | | - i
| i i ,i ri ni ri i i |
r ri nn r l rzs - liln i ii
ni, n l| -l i ni r| ii ni ii| r i| ri
nn r l - ri i; - l r| ii| - rzs - - l
ni liln i i i| in l -il- ,ii -i l- - l
i i | in i | i | , r| | r| i | |
( s)
"Since the buildings built by Vikramaditya were 2500
years old, they collapsed on their own and the Janmbhumi
temple was demolished in the year 1528. The building which
2086
was demolished in the year 1528, was originally built by
Vikramaditya with intervening renovations from time to
time.
It is wrong to say that when the disputed structure was
built in the year 1528, it had not been built by demolishing
any temple. It is also wrong to say that no temple existed over
there at that time. The factum of building of disputed
structure in the year 1528 by demolishing a temple, and the
building of Janmbhumi temple by Vikramaditya, were heard
by me from my ancestors, and I have not read it anywhere."
(E.T.C)
2013. This statement of the witness is directly contrary to the
pleading and the basic case of the plaintiffs (Suit-3).
2014. Moreover having said so that is about construction of
mosque nowhere he has said as to when the above mosque
ceased to be a mosque and when worship by Hindus started in
the disputed building. He however has confined the period of
worship by Hindus prior to 1934. On page 47, 63, 98, 108 and
109, he has said:
o in -l- n i- r| i|`
o ss r ri i i - ri ni i
i ri r | ( /)
Question:- Till when did the aforesaid mosque exist?
Answer:- Prayer-worship has been continuing over there
from before the year 1934." (E.T.C)
l-i r| ii i r| i l i l n i l i |
ss r l n l i i i n r i r| r l
ss ln r liln i l l-i r| ii i|
l n li ii| ( cs)
"The first priest for the disputed structure was
appointed before the year 1934 by the Nirmohi Akhara,
2087
but (I) do not remember as to how much before the year
1934, was the priest appointed by the Nirmohi Akhara for
the disputed structure." (E.T.C)
ss r ri - l n i | i | , l ii
l| -rn lnl-n ii ii|
ri i-i | | - ln , -i | | -ln , r -i | |
- ln , iln i- ini il | - ln i i| i|| - l n i
ss r l i l n i i | i | |
liln i - i n | |l i -ln i i| r ;
i|| ( ss)
"Idol existed over there from before the year 1934,
which had been installed by some Mahant of the Akhara.
The idols of Ramlala, Laxman Ji, Hanuman Ji and
Lord Saligram existed over there. All these idols were
inside the disputed structure from before the year 1934.
These idols existed at the stairs beneath the middle dome of
the disputed structure." (E.T.C)
liln i - - l n ss r i | n; i | ,
n l - i| n; i| ii l i| i| r - n ni r|
r| ( os)
"The idol had been installed in the disputed
structure prior to the year 1934, but I have no knowledge
as to when was it installed or by whom." (E.T.C)
- r in i | r l ss
r ri - ln i| r ; i|| - r i| r| ni i + ni l n|
n - i l i l n i l -i i i | rzs
l n - i l i l n i - - l n i | n; i | |
( os)
"I had heard it from my ancestors that the idols
existed over there from before the year 1934. I will also
not be able to tell how many years after the construction
2088
of the three domed disputed structure i.e. after the year
1528, were the idols installed in the disputed structure."
(E.T.C)
2015. So far as his own visit to the disputed site, he claimed
it since 1946, at page 46:
- liln -i sc ini ri r i ri -
rni i| ii| - ri -l iini ii, r ln
i|| ( c)
"I have been going to the disputed site from the year
1946 and I also used to stay over there. I used to carry out
prayer-worship in the temple over there as a priest."
(E.T.C)
2016. The visit of Muslims at the disputed site is also
disputed by him since 1946 at page 53 and 127:
sc - - -i i n liln i r| in in
i | - sc - l| - -i i liln i - in in
r| ii| l- ss n liln i - -i r| r ; |
( rs)
"In the year 1946, the Muslims did not visit the
disputed structure. In the year 1946, I did not see any
Muslim visit the disputed structure. Namaz was not offered
in the disputed structure till December, 1949." (E.T.C)
sc - i i n i in i , r liln i
i i n i | sc - | i i i | | i
i i i i i l i i l i rn i i
-l r s z n i i i i i i
in n i i rni r | ( z/)
"The people who used to come to have darshan in the
year 1946, used to have darshan from inside the disputed
structure. In the year 1946, both the gates of the grill
wall used to remain open for the devotees and the temple
2089
used to remain open between 8 am to 12 noon and 4 pm to
9/9.30 pm." (E.T.C)
2017. His statement apart the affairs of Nirmohi Akhara has
attained importance for he is Panch of Nirmohi Akhara since
1950 and presently Sarpanch and Mukhtare Aam:
- sro - l-i r| ii i r i ii i -rn
i ii i | i - ni i- i| ii| sro - i
i i ri r | i r i ii i i
; i r - i ri ni i i i | -
l -i r| i i i - ni i - r | - l-i r| ii
-rn nii i | i - ni i- r | ( /z)
"I became the 'Panch' of Nirmohi Akhara in the year
1950 as also the 'Mukhtar-e-aam' (power of attorney
holder) of Mahant Raghunath Das. I have regularly
continued as a 'Panch' from the year 1950. Thereafter, I
became its 'Up-Sarpanch' and today for last many years, I
am its 'Sarpanch', and even today I am 'Sarpanch' and
'Mukhtar-e-aam' of Nirmohi Akhara. I am the 'Mukhtar-
e-aam' of Nirmohi Akhara's Mahant Jagannath Das."
(E.T.C)
2018. Regarding the incident of 22/23 December, 1949, he
said at page 77/78 and 80:
zz,zs l - ss | i n i l i l n
i - i ; i -i r| r ; i | | l i ; r rni r l
zz,zs l- ss | in i liln i - i ; i-i r ; , ni
r nn rni r| - zz,zs l- ss | in i liln
l - r| -i ii| - il - i ir i ni r i i
i - ini r , in i| zz,zs l- ss | in
i | i i i rni| - i| in i - n -
| i -ii ii ii| ( ///s)
"No incident occurred in the disputed structure in
2090
the night of 22/23 December, 1949. If somebody claims
that some incidents occurred in the disputed structure in
the night of 22/23 December, 1949, then he is stating
wrongly. In the night of 22/23 December, 1949 I was
present in the disputed premises. I go to bed at 11.30 PM
and get up at 4.30 AM. I must have slept so in that night i.e.
in the night of 22/23 December, 1949. At that time i.e. in
that night, I had slept at the place beneath the dome."
(E.T.C)
l li - - r lii ri l zz,zs l- ss
| in - s i ni -l- - ili ri -l- ii li,
ni r in nn li| r| l i -i i | i i - ;
l i - - l i i r , r| - i i zz,zs l -
ss | i n i n - i i - i i i l
i i | i i- ; li - - lii r r r| i i |
r, i in n li - i i i ii-i| r| r, i
zz,zs l- ss | in ii - - i i i l
i -i | i i- li - - ii r, r - i - n
i | i i i n l i l n l - r| i
i | ( so)
"If it is so mentioned in that report that in the night of
22/23 December, 1949, some people had entered the
mosque and de-sanctified the mosque, then the said fact
has been mentioned wrongly. The Ramshakal Das named
in this report, had slept along-with me in the domed
structure in the night of 22/23 December, 1949 , and the
Sudarshan Das named in this report, is the same
Sudarshan Das who had slept in the saints'
accommodation in that night and Abhay Ram Das is the
same person who had slept in the 'Katha Mandap' in the
night of 22/23 December, 1949 and the Ram Das Ji named
2091
in the report, was the priest of Ramchabutara at that time
and he had slept in the disputed premises in that night."
(E.T.C)
2019. The contradictions and incorrectness in his statement
is evident from the following:
r l ri l i l n i - sro r
i i | r l ri liln i - sro i r
ii| r lri liln i - sro - ii n ;| |
r| r ; i|| ( o)
"This throne existed in the disputed structure from
before the year 1950. This throne was present in the
disputed structure, from ten years before the year 1950.
This throne was in the disputed structure in the year 1950,
but it had not been attached." (E.T.C)
ssc r ; l i - l i ri l ri
l i l n -i r| i i | r ri ni r l r l ri
ssc - liln i i nii i i ri ii ni ri |
( /)
Before 1986, the throne, visible in these
photographs, did not exist at the disputed site. This
throne may have been placed in the disputed building after
its lock was opened in 1986. (E.T.C.)
l i l n i - i -i | | i - l n i i | | .
. . i i - ln i ss r | i r| r| ( o/)
"There were two idols of Ramlala in the disputed
structure . . . . . . . Both these idols were in existence from
before the year 1934." (E.T.C)
lii- i | . . . .liln i i| i| i l ri
llii- i | l-i r| ii i| r| i | ( zs)
"Abhiram Das. . . . . . . was also the priest of the
disputed structure. Then stated that Abhiram Das was not
2092
the priest of Nirmohi Akhara." (E.T.C)
l -i - i -i | | i - l n i i -
ni l i i i | l i- i | | -ln i| i -i
i | | - ln i||
i-i | | -i i | | i - ln i ss
r | i r| i|| ( z/)
"Inadvertently I had stated about two idols of
Ramlala, when there was one idol of Ramlala and one of
Laxmanlala.
The two idols of Ramlala and Laxmanlala, have been
in existence from before the year 1934." (E.T.C)
- |ii ii i in i zr liii ni, l
i nir ri l ; in i - i s lii r , r r|
lii r |
i n in i zr nir i liii ni i r si ni
l ; in i - li| in l i- n - i l o
s sz - li ri lri n i r ii n i- n i r `
i n i i nir ri l ; in i - l |
i nn li n| r|
; in i - i - l os sz i ri i
l i r , i ~ i nn ri ni r , i -i ; |
nn| r | ;| in i zr i nir i lii si ni l ;
in i - i i-i oss s i - i ~ i li r,
r l| +| iin i ~ i r ` in i i nir ri
l - i i n i zr i i nn ri ni r | ( s/)
Paragraph 25 of affidavit filed at the examination-
in-chief was shown to the witness following which he stated
Whatsoever is stated in this paragraph, is correctly
written.
The aforesaid paragraph 25 was shown to the
witness and a query was put to him as to whether the
2093
throne, visible in photographs 81 and 82 of the black-white
album represented chabutra or Ram Chabutra.
Seeing the aforesaid photographs, the witness stated
that photographs in this paragraph had been wrongly
numbered.
In this paragraph, photographs 81 and 82 have
been quoted wrongly; that is due to typographical error.
This very paragraph 25 was shown to the witness and he
was queried as to which upper portion found place in his
description about photographs 83 and 84 of this
paragraph. Looking at the aforesaid, the witness stated that
his statement in paragraph 25 had gone wrong.(E.T.C.)
- |ii ii ;| in i z i i
- il- l i- i nii ii, zsso ni r, liii
ni i si l ; ii i ni- r ni nir ri l r
i | nn l i ni r | r i i -i ; | nn|
l i ni r | ( ss)
A portion of this very paragraph 24 of affidavit filed
at examination-in chief which portion runs as
'Janmbhumi, opposite to which lie a Batasha-selling shop
and 29-30 chabutras was shown to the witness and he
was queried as to what he meant by the said words.
Thereupon the witness stated It is also incorrectly
written. This portion in its entirety has come to be
written due to typographical error. (E.T.C.)
2020. Regarding the period of construction of Ram
Chabutara, he said :
; -ln i -i - l-i r| ii -rn
ii ii, i i- - n r| -i -| r in - i |
r, r| i r| r| i - n l n| i | - l n i i | , r
- n i i i r -i - i | n; i | |
2094
iiir -i - i| r i- ni / l- x z l- i
ii, i -i - i| ; | nr i s i r i ii,
i l sro - i r i ii| ( oso)
"This idol was installed in the period of Akbar by
Mahant of Nirmohi Akhara, I do not know his name. I have
heard this from my ancestors, and have not read it
anywhere. All the idols at the Ramchabutara, had been
installed in the period of Mughal emperor Akbar. In the
period of emperor Akbar also, this Ramchabutara was of
the dimension 17 feet x 21 feet and in that period also, it
had a similar thatch, as was there in the year 1950."
(E.T.C.)
; i - n - i - i i ssr -
i l i r i i i | r ii -rn i i | ili li
ii, i l-i r| ii - -rn i| r ii ii |
in - ili r i ii i r ; - - i li i i
| i - r i ii| i - | - ri n| ;| | i
i | r| | i|| li | | - li i
| | i+ - ili r| r ; | ( oso)
"A suit had been filed regarding this
Ramchabutara in the year 1885. This suit had been filed
by Mahant Raghubar Das, who was Mahant of Nirmohi
Akhara. This suit had been filed in the court of Sub-Judge,
Faizabad, and earlier this suit was decided in favour of
Raghubar Das. Subsequently, he lost in appeal. This
appeal had not been preferred by Raghubar Das. No
Second Appeal was filed at Lucknow against the decision
of District Judge in that appeal." (E.T.C.)
- i - n i - -i i ri i ni i i ,
-i l - r| ri i ni i i | -il- i i i r
ri i ni| - i| ; i- n i i / x z
2095
l- r| ii| ( o)
"At that time, Ramchabutara was called
Janmsthan and not Janmbhumi. It started being referred
as Janmbhumi about 100 years ago. At that time also, the
area of this Ramchabutara was 17 x 21 feet." (E.T.C)
2021. About the grated dividing wall between the outer and
inner courtyard, he has said:
r |ii i| |i il | iir -i - | i|,
i ssr sro - i| i- r| i|| i il | iir
-i - |i i| |i | in - | r, r| | r|
r| - r i r l i l | i i r -i - ri
i nn i r i ni i i i ; i i r
| i i i | | i i ; n; i | l nn i i i n ri
i , n r nn i i i n r| r i | r nni lr i i
- -ii - r i ni ii| ( o)
"This grill wall was built in the period of Wajid Ali
Shah, which existed in the year 1885 and 1950 as well. I
have only heard about the fact of construction of grill wall
in the period of Nawab Wajid Ali Shah, and have not read
it anywhere. I have heard that in the period of Wajid Ali
Shah, there were regular conflicts over there and the
grill wall was built only to end the conflicts, but the
conflicts did not end. These conflicts used to break out
between Hindus and Muslims." (E.T.C)
2022. Though on the one hand he claims that Namaz has
never been offered from the days of Babar in the disputed
building but about existence of idol of Ram Lala in the disputed
building, he said that it is since prior to 1934 but exact date and
period is not known to him:
i -i i n liln i - i| -i r|
ri i; i|| i-i | liln i - ss r r ,
2096
n r ii| - n r| r l ss ln r ri
i | - n r i | i i | r| r l i -i
ss r n ri i -i | i i r| |
( zs)
"Namaz has never been possible in the disputed
structure till date from the times of Babar. Ramlala has
existed in the disputed structure from before the year 1934,
but I do not have knowledge of the fact as to for how long
before the year 1934, was He present over there. I also do
not have knowledge of the fact whether Ramlala existed
over there or not from the times of Babar to the year
1934." (E.T.C)
2023. He admitted the riots of 1934 but says that it did not
cause any damage to the disputed building and only the outer
wall was damaged:
ss n - liln i i i ; i r| r i
ii, liln l | ir| ri|i| i iln r | i||
( z/)
In the 1934 riot, no damage was caused to the
disputed structure but damage was caused only to the outer
boundary wall of the disputed premises.(E.T.C.)
| i i i | | i i r | | i | ,
i r | i i ni i i | | i i i | | i - i r
| i ss - ni n i i r ir |i i
ni - r i r i ii, | ni n i , n - n r
ii| r| r l l ni i | |ii i| |i
i ss r i r i i i - i r r i,
;| ii| - n r| r | ( zs)
The grill wall which had earlier been made of
wood, was built using iron. Iron-grills came to be used
in the grill wall in 1934 and the expenses incurred on
2097
fixing these iron-grills had come from riot taxes which had
been realised; but I do not know as to who had carried out
this work. I do not know whether the gates of the grill wall
came to be made of iron prior to or subsequent to
1934.(E.T.C.)
2024. Regarding preparation of his affidavit, he said:
ni i i - |ii ii i z -
l~lin l o i -i li l r`
-n - | i r | | n i -i - i i
; i n i - l i - i l
r | ( c)
Question: Have you mentioned the number of the
photograph in paragraph 24 of the affidavit filed at the
examination-in-chief only on the basis of guess-work?
Answer: My counsel, Sri Ranjeet Lal Verma, after
carrying out inspection, has numbered photographs of
this paragraph on his own. (E.T.C.)
- ; i i i s i i n - | i r
ni i i i l n r , n r i i i i n r , r
- n i r| r i - ; ni i| r| i+ ni| ( zs)
Some portion of this affidavit of mine is based on
the knowledge of my counsel. But I do not remember
which portion it is, I am also not in a position to tell about
it.(E.T.C.)
r ii zs.s.zoos i liii ni, | l -i;
li ni i | l -iln li ni| r i -i n i
n - - n i ; i n r| l i i n i | ( zc)
This affidavit was dictated on 29.08.2003 and it was
typed and verified on the same day. While preparing the
affidavit I was shown none of the papers.(E.T.C.)
2025. Then on page 152, when he was asked whether the
2098
claim that the God has manifested (Prakat) in the night of 22
nd
December, 1949 as stated in the book "Sri Ram Janam Bhoomi
Ka Rakt Ranjit Itihas" written by late Pt. Ram Gopal Pandey
Shaarad on page 95 is incorrect, he could not say that this is
incorrect and did not happen and instead gave a vague reply :
si ni l ; -n -sr l i-i i
~ i zz.z.ss -i - li ni r, i r nn r`
in i i nir ri l ini i ni r i,
n n- r| r i ii n r ; n n- r , ;-
zz,zs ss i r| r i ;- i s i| lii r r
nn r | ( rz)
Page 95 of this book was shown to the witness and
he was queried as to whether the description of an incident
therein in reference to 22.12.1949, is incorrect. Looking at
the aforesaid page the witness stated Whenever God
incarnated Himself, He certainly appeared, and He
appeared on frequent occasions as per requirement. It does
not concern 22
nd
- 23
rd
December, 1949, whatsoever is
written herein, is incorrect.(E.T.C.)
2026. About Mahant Raghubar Das, he said:
-r n i i | i -i i sso sso
ni n n i ri ri ni | - ii n sso nin
in - i -r n i i | r| -in i| -r n i i
| -i ; - l i n i n ; i i
- ; - -i n - i l i r | -r n i i | i i
-r n l-i r| ii r i, -i in i| ; - -in
- ili r | ( c)
The period of Mahant Raghubar Das would have
been from 1880 to circa 1890. It was Mahant Raghubar
Das Ji who used to take the aforesaid contract at that time,
that is, around 1880. Papers related to this contract
2099
belonging to the time of Mahant Raghubar Das are filed
in this case before this Court. Papers belonging to the
period of successor to Mahant Raghubar Das Ji as
Mahanta of Nirmohi Akhara, are also filed in this
case.(E.T.C.)
-r n i i | r| r , l ri ssr
i i i i i l i l i i i | ( ss)
Mahant Raghubar Das is that very person who
filed the 1885 claim.(E.T.C.)
-r n i ii i | i- n -r n i ii i| i`
-n i - n -r n i | ( cr)
"Question:- Whether Mahant Raghunath Das Ji was
Mahant or 'Pujari' (priest) of Ramchabutara?
Answer:- He was Mahant of Ramchabutara." (E.T.C)
2027. About the police surveillance he said:
r si ni l zz,zs l- ss r liln
i l i ri i rni ii` i n i i nir
ri l ri ; ii nni ii l - -i in - l--
l - i| ri | -ln r-i i irn i | r ri i i
i ri i i | r ri i | n ni ii, ri
ni | i-n r| | i|| r ri s/ - ii| l-
i ni ii| ( /s)
When asked why the disputed building used to be
under the police watch prior to 22nd-23rd December,
1949, the witness stated that the deployment of the police
as guards was due to the reason that Muslim public and
Muslim cops and officials wanted to remove idols from
there. This deployment of police as guards had been for
a year or so. This deployment was at the behest of the
government; no application had been moved for such
police deployment. This deployment of police as guards
2100
had been since 1947, that is, since the time of
independence.(E.T.C.)
2028. About Nawah Path and Bhandara inside the building,
he made certain contradictions:
liln i ir i- i iii ss
r - i- r i ii, n ln| i r i ii, r - n i r| |
l i l n l | i n - | i
-i i i r i - r i ni i i | ( zo/zos)
Nawah Paath and Bhandara (religious rituals) had
taken place in my presence inside the disputed building
before 1949; but I do not remember how many times such
rituals had been performed therein.
Nawah Paath used to take place at a place below
the central dome of the disputed premises.(E.T.C.)
- liln i | i n - | ir i-
ri n ii ii| ( zos)
I had seen Nawah Paath being performed below the
central dome inside the disputed building.(E.T.C.)
l i l n i n - i i i n i r i
| i i i | | i i r - i r i - r|
ri ni i i | ( zo)
Nawah Paath did not take place outside the dome
portion of the disputed building and in the courtyard
inside the grill-wall. (E.T.C.)
i i i l i l n i i | r| ri ni i i |
( z)
"'Bhandara' (collective feast) was never held inside the
disputed premises." (E.T.C)
- i - z r ri l iii liln i
i| r| ri ni ii, - i -n r ii l ri iii i|
ii r| ni n ii ii ini ii| ( zr)
2101
When I on page 211 stated that Bhandara never
took place inside the disputed building, I meant that
Bhandara(food prepared for mass feeding) was never
prepared there but food used to be served.(E.T.C.)
n - i i ir r - ii ii ini ii|
( zc)
Food used to be served in the courtyard outside the
domed building.(E.T.C.)
2029. He admits that ownership or possession on the
disputed building was not claimed in 1885 Suit but since 1934
Nirmohi Akhara is arranging worship continuously and
therefore is claiming right of possession and ownership thereon:
ssr i - liln i i -- i lii
ri r| liii ii, l ss i i i -
l -i r| i i ,i i ri ri ni i i ri r , ;l
r- -- i l i i - r r |
( zzs)
They had not shown their title or right over the
disputed building in the 1885 claim; but we are now
laying our title or right over the same as Pooja-Paath
has always been performed by the Nirmohi Akhara since
1934.(E.T.C.)
2030. The idol of Ram Lala, placed in the disputed building,
is Chal Vigrah:
i-i | | i - ln liln i l- - l ri i| i|
r- l n r r n | ( zsz)
We will call the idol of Ramlala Ji, seated on the
throne in the disputed building, 'Chal-vigrah' (movable
form of deity).(E.T.C.)
2031. About Pran Prathishtha, DW 3/1 says:
i-ni ii, ln-i | lli - - - i l nn
2102
r i - - i, ln l- ii ln-i n r | ri
ii ln-i i ri ni r, i - - ni r i ri n
ri ni r, l- ili, ilii, i ilii il i ri n r
i r ri ni r, nii n | l -i ri n| r, n ri - l -
- ln -iiln li ii ri ni r , ri - ln i -iiln li ini r|
( zss)
The ritual of 'Pranpratishtha' (vivification)
normally takes at least five days and at least five Pandits
(scholarly men) collectively perform 'Pranpratishtha'.
'Mandap' (canopy-like structure) is erected near the place
where 'Pranpratishtha' is to be performed, and 'Yajna'
(sacrifice) is performed there which comprise 'Jaladhiwas',
'Annadhiwas', 'Shaiyyadhiwas' etc.; and 'Hawan' is also
performed and 'Parikrama' is also done of the town in
whose temple idol is to be installed or is installed.(E.T.C.)
2032. He explained about the temple on the north of the
disputed site:
n n i - l i -il- -l r| rn r l
-il- - l i i| i- - -ii r , i - r -il-
i- ln r i i inini - ;i i- --ii r|
r | i i r ; --ii i -i l- ri i ni|
r ln , r i, ;| i ; - n ii| r| r |
( z)
The Gudadtad temple is not called Janmbhumi
temple but the old name of the Janmbhumi temple is
Janmsthan, which later came to be known as Janmbhumi
and its name is recorded only as Janmsthan in records.
Hundreds of years ago, this Janmsthan came to be called
Janmbhumi. I have no knowledge as to how and when this
change came to be.(E.T.C.)
2033. However, about maintenance of building, he could not
2103
say anything very clearly:
sc zs l - ss |
l i l n i | i i | i i ni ; r ; i | | r ni;
nin r i ri n| i|| i liln i - ni; - lni
ri ni i i , ;| i i | - n r| r | ( zrs)
Between 1946 and 29
th
December, 1949, the
disputed building was lime-washed or white-washed.
This white washing used to be done almost every year. I do
not have the knowledge as to how much expenditure was
incurred in white washing the disputed building
once.(E.T.C.)
2034. DW 3/2 Raja Ram Pandey claims to have visited
disputed site for worship of Sri Ram Lala since 1930:
- sso i--i l- i ini ri r| -
i--il- | l -i i| i | r | r r| r l r -n ,i
i| |i - r| ilr| n iir ini | ln-i niii - i||
niii, | |i - lii | n ii| ( zo)
I have been going to have darshan at
Ramjanmbhumi since 1930. I have always also performed
circumambulation at Ramjanmbhumi. It is true that an idol
of Lord Varah was on a niche to the right of the wall itself
having the Hanumat Dwar. The niche was on the southern
side in the eastern wall.(E.T.C.)
li l n i - - i | i i ri
r , | - - l n ri l i -i r ,
i | , ;i - n ni r| r | li l n i - -
r| i sss - ni i i , - ri ini
li-i i i - | i i i ii ii|
sso i - l i l n i - ini,- ln i li-i
i ri r| ( zc)
The idol is present there since the time I have
2104
been going to have 'Darshan' at the disputed building.
But I do not know since when it has been there. In 1939,
when I first went to the disputed building, 'Bhagwan' was
seated there and I returned from there after performing
'Pooja' and having 'Darshan' of Him. I have been seeing
Bhagwan/idol of Bhagwan seated in the disputed building
since 1930.(E.T.C.)
- rii i | r iii i-i i-i n |
i n - | - i-|n li ii| ( ss)
Prior to the attachment, I had thousands of times
performed 'Ramkirtan' by sitting beneath the central dome
for half an hour to an hour.(E.T.C.)
2035. He denied construction of mosque by Babar in 1528:
r ri nn rini l i| -l- rzs - | i||
( zr)
It would be wrong to say that the Babri mosque was
built in 1528 AD.(E.T.C.)
2036. In the zeal of denying existence of any mosque at the
disputed sight he gave different versions about his knowledge of
the word "Babri Masjid":
- ss i i | -l - i i -
ri r , r - i| -l- i i- r| i ii|
ss l i| -l- i - ri r , r i i - ri
l-in r i i|, ;| - n ii| r| r | i - -i
ri r, ;| ii| - n r| ( cz)
I have been hearing of the Babri mosque since
1949; I had not heard of the Babri mosque earlier. I do not
know where in Ayodhya the Babri mosuqe about which I
have been hearing since 1949 is or was situated. I have
the knowledge that a case in this connection is going
on.(E.T.C.)
2105
- i i r l r - n r -i - r i
i i l l i i - - i l - -l rni r |
i - -i i n i | -l - rn r | ( cz)
From Mannan Sahib's cross-examination I came
to know that the building which I call Janmbhumi
temple is called the Babri mosque by Muslims. (E.T.C.)
liln i | | i - -ii - ssro -
i ii| -iii - i| i| -l- i i- r| ii ii|
( cs)
In 1949-50 I went through the news regarding the
attachment of the disputed building. The words 'Babri
mosque' had not occurred in those pieces of news.(E.T.C.)
- i r| i l r ii i - ii, ; ii
i n lnii irn i| - liln i i - l -nni
ii| ( /z)
"I have not so heard that the structure was of the
time of Babar, therefore, people wanted to demolish the
same. As regarded that disputed building as temple."
(E.T.C)
- | - -ii - iin ri n| r| i| i sszss -
i| - iin ri n| rn| i|, n l| - -i - n r r| ri
l c l- ssz i i| -l- lni | n| i|| ( /s)
I had been meeting Muslims and I used to have
meetings with them in 1992-93 as well; but none of the
Muslims told me that the Babri mosque had been
demolished on 6
th
December, 1992. (E.T.C.)
| - i i r | l r - i |
-l - i i - i i n - r -n l i i i l r
| l i l n i l i n r , l i - i - -
i l - -nni ri r | ( /)
"When the name of Babri mosque appeared in the
2106
cross-examination of Sri Abdul Mannan, I understood
that the same related to the same disputed building
which I have been regarding as Ramjanambhumi."
(E.T.C)
- zz l n- zoos i i + ri ; i -
i i , ni - - l i i r i i
i - - i l -i | -l - , ni - | -n - i i l
i - - i l - -l i i | -l - i ; - i
r | ( rz)
"On 22nd September, 2003 I came to Lucknow
High Court and read 'Ramjanmbhumi-Babri Masjid'
written outside a room, when I came to understand that
'Ramjanmbhumi temple' has some relation with 'Babri
mosque'." (E.T.C)
2037. When faced certain problem due to long drawn cross
examination, he immediately took recourse to age old defence
of "weak memory" and says:
- | i s/ i ri n| r i - i l -| i
r| ni r , ; ii - n i r| rni r l -
i ri | - i n ii - i ii in i r| r,
li so.s.zoos ii i l-i ni r | ( /o)
I have grown 87 years old and my discretion does
not work in a proper manner. For this reason, I fail to
remember which particular thing I stated at a particular
time. Of the aforesaid statements, the above mentioned
statement given by me today is correct; I have wrongly
given the statement dated 30.09.2003.(E.T.C.)
2038. About the period as to when the idols were kept in the
disputed building he says:
- n r ni r| r l liln n| n i i i -
- ln i i l ii; , n - ri i ri r, n
2107
r ri i ri r| -n ii i- -i - i ni ii|
( /c)
"I do not have knowledge of the fact as to who
installed the idols in the three dome disputed structure and
when, but ever since I have been going there, I have seen
them over there. The northern gate used to open only
during fairs." (E.T.C)
2039. Regarding the dividing wall between outer and inner
courtyard as well as 1934 damage, he says:
l |i - | n n rii - ni ri r , r
r| |i r, l- ss r ir |i n r i|
; | i - i r | i ss n r ,
r sso | n n r i , l ri l
| n sso r n r i| ;| | i i
ss - -i - | i l n r | i | | ; | i i i
l i l n i l | i i n i ss - -
i l nn -n r| i i | liln -i | ss n -
i; i| - -i r| -ii ni ii, ii - so - -i -i n
i | -| ii| - r| r l liln i | l |i i iln
r | i|, | ---n i; n; i|, i r| | | i i
i l nn -n - - ss n i ni ri | ( ss)
"The wall in which I am stating about fixation of
wooden 'Jangla' (grating), is the same wall in which iron
grills were fixed prior to the year 1949. The iron grills in
this wall are fixed since 1949, prior to it were wooden
'Jangla' since 1930, then stated that the wooden 'Jangla'
were fixed before the year 1930. This very wall had
suffered minor damage in the year 1934. Apart from this
wall, I did not see any other part of the disputed
structure damaged in the year 1934. No Muslim was
killed near the disputed structure in the riot of the year
2108
1934. 8-10 Muslims were killed in Ayodhya. It is not within
my knowledge whether the wall of the disputed structure,
which had suffered damage, had been repaired or not. I
had seen that wall in a damaged state till the year 1949."
(E.T.C)
r ri nn r l ss n - l i l n
i l i i | l-| |i i il i i l nn -n
l i ni i i | ( ss)
"It is wrong to say that the dome, western wall and
floor of the disputed structure had been damaged in the
riot of the year 1934." (E.T.C)
(Note: This is contradictory to DW 3/1, page 127.)
r ri i| nn r l l |i - | n rii
- nii r , - i| | n r| n i | r i| ri
nn r l n |i - sso r r| i r
|i , n n i | ( ss)
"It is also wrong to say that the wall, in which the
wooden windows are stated to have been fixed, never had
wooden 'Jangla' . It is also wrong to say that iron
grill/'Jangla' had been fixed in the said wall before the
year 1930." (E.T.C)
2040. On the one hand he admits weak memory due to old
age but on the other hand he is able to tell as to what actually
happened when for the first time he went to visit the disputed
site in 1930 and that too after almost 73 years:
- lni | i- l - n liln i - i
i n ni i- r| ri nii l ii ; i-ii - r -i
| | -ln n| r i ; r -n ,i rn r i r| ni
iii - r in r| r | ( ro)
"On the first day when my father took me to the
disputed structure for 'darshan', he told me at the gate-
2109
look, these pillars contain the idol of Hanuman Ji and it is
called Hanumatdwar and it is on basis of facts told by him
that I have stated these facts." (E.T.C)
2041. DW 3/3, Satya Narain Tripathi claims to have visited
the disputed building since 1941 several times and has seen the
idol of Lord Ramlala in the Garbhgrih, i.e., under the central
dome of the disputed building. He is not resident of Ayodhya
but reside at Village Mahawan, Tahsil Bikapur, District
Faizabad and was born on 08.09.1931. His village is about 35
kms from Ayodhya. He did not deny, as such, any incident
whether took place in the night of 23/12/1949 on page 22.
- n ni r| l li zs.z.ss | in i s ini
i - ln i i| i r| |
I do not know whether or not some persons had
entered and placed idols on the night of 23.12.1949.
(E.T.C.)
2042. On page 37 he claims that the disputed building was
constructed by Vikramaditya. On page 80 he said about the size
of the three domes as under:
liln i - n| n - i | n| i n - r|
i i |
There were three domes in the disputed building.
All the three domes were of the same size." (E.T.C.)
2043. This statement is ex facie incorrect since the central
dome was bigger than the rest two and it is virtually the
admitted position by all the parties. We also find it from the bare
perusal of the photographs of the disputed building available to
us. Most of the statement of this witness is based on assumption
and hearse, i.e., the information he has received. On the one
hand he gave statement about his visit to the disputed site very
accurately but regarding placement of various items thereat he
2110
made contradictory statement. On page 24 he said that there
were idols of Ramji, Lakshmanji and Hanumanji kept on
Sinhasan which remain there from 1941 to 1992 (page 25) but
then on page 26 he retracted from the said statement after
looking to the photographs and said that it was not clear to him
when he used to visit and in what manner the idols were kept.
2044. DW 3/4, Mahant Shiv Saran Das, a Bairagi of
Ramanandi Sampraday, claims that he is visiting Ram
Janambhumi since 1933 and has worshipped the idols of Lord
Ramlala inside the disputed building under the central dome,
i.e., Garbhgrih. On page 13 he, however, improved upon his
statement by stating that he was born in 1920 and since 1930 to
1942 he remained at Ayodhya continuously.
ii - - o i | i sz n nini ri r|
- i - i szo - r i ii| sso - - i i ii i
sso sz n - nini i i - ri i r li
nin z i | rin| r |
From the age of 10 years up to 1942, I have always
been at Ayodhya. I was born in 1920. I was 10 years old in
1930, and I continued to reside at Ayodhya from 1930 to
1942, and this period is of nearly 12 years.(E.T.C.)
2045. This statement is contradicted by him repeatedly.
- ii i i ni r i ri - ri i| r| . . . .
|n - r-i i i- r| -l- r | . . . . . i |
-ii - - i ni |n ri ni ii, i - i si li
ii| ( zs)
I have been to Ayodhya hundreds of times and I
have also resided there. . . . . . . There is a mosque right in
front of our house at Aliganj. . . . . . . . My 'Yogyopaveet'
(sacrificial thread ceremony ) was solemnised when I was
11 year old. After that I left the house.(E.T.C.)
2111
z i | -i i - - i i ni i i i |
- - - ln i r| i| r | - n i r| r l - z i |
i i ii, - i i ii| - i i| r| ni
ni| ( zs)
At the age of 12, I visited Ayodhya and since then I
have seen the idols only. I do not remember which year was
in the running when I was 12 years old. I cannot tell the
year even by guess.(E.T.C.)
i i - - n ri - -ri |
i l i i | - -ri i | i l i sr - i |
i rc i n - | si| - -rii | | i ni
ii| i n ii; i- -i r i | ii r-ii
i ni| ( s)
I began to reside at Ayodhya since I became the
disciple of Maharaj Ji. I became disciple of Maharaj Ji
in 1945. After that, I served Maharaj Ji at Badi Chhavani
(big cantonment) for 5-6 years. Thereafter I went to
Ahmedabad with my Gurubhai (disciple of the same
spiritual teacher), Ram Manohar Das Ji. (E.T.C.)
- i | - - n i n ni i i | - ri
| s i n ri | ( ss)
I went to Gujrat while being 11. I resided there
for about 13 years. (E.T.C.)
- -rii | | si| | | os -rn | -i-|
i i lii i | i i so i n ii - r i |
i i n |i| r | - | -rn | ii nin o i i i
- ri| ri | -rn | rn i, r| - i| rni ii| - ii
sc src n ri| src i - n ii; ii
| ,ili | i ni| ( o)
Sri Sri 108 Mahant Sri Swami Kaushal Kishore Das
Ji of Badi Chhavani was my Maharaj Ji (spiritual teacher)
2112
and he resided at Ayodhya for 80 years and continued to
assume the seat during that very period. I resided at
Ayodhya along with Sri Mahant Ji for nearly 10 years. I
resided wherever Sri Mahant Ji resided. I was with him
from 1946 to 1956. After 1956 I went to Sri Dwarika Ji
along with my Gurubhai.(E.T.C.)
src -i - | | os | -i-|
l- i | -rii - n ini ii| - - r-ii -
r| rni ii| ( )
Sri Sri 108 Sri Swami Nirmal Das Ji Maharaj
initiated me as a Naga at the Kumbh held in Ujjain in
1945-46. At that time I resided in Ahmedabad
itself.(E.T.C.)
- r r| ni i+ ni l - i i - ln i n ri,
i l - n lnn| r| -i -| - i ni |n i | - - r i
ii i i -ir i - ii i ni i ii ni ii|
ni |n i | i - r| rini r| ni |n - ir -i in r|
i i in r| - | si| - | | os | -i-| i i lii
i | i li ri ni| - | -rn | r| i r| |
si| - - iin r ; i| i li i - o i ri
ri ii| ( z)
I am not in the position to tell for how many years I
resided at Ayodhya because I do not know the numbers. My
Yagyopaveet was solemnised while I was 11, and two
months after that I went to Ayodhya and became a saint.
Yogyopaveet is performed only at the age of 11 years.
Brahmans come to attend Yagyopaveet. Immediately after
going to Ayodhya I became the disciple of Sri Sri 108 Sri
Swami Kaushal Kishore Das Ji of Badi Chhavani. I had
first met my Mahant Ji at that very Badi Chhavani and I
resided there for 10 years after becoming his
2113
disciple.(E.T.C.)
l i l n i i n| n - i i i , ri -
ssc i ri r | - liln i - r| i ssc
- ni ii, ni | i n - | n ni ii| ( z)
Since 1936, I have been going to the disputed
building which had three domes. In 1936, when I first
went to the disputed building, I went up to beneath the
central dome.(E.T.C.)
sss sro n - i i - r| ri ,
n i i i ni i i i ; i i - i i
i ni i i , ni l i l n -i | n r| i ni i i i
n i ni i | i i ni i r ri i i i - i ni
i i | ( r)
I did not reside at Ayodhya from 1938 to 1950 but
whenever I came to Ayodhya I did not go towards the
disputed site and if I at all went there I returned from
outside after saluting the place with folded hands.
(E.T.C.)
- sss n ii - ri ii i i sss
sr/ n r-ii, - i, il-ii , -; il - i -i
ni ri i srs - - ii n i -i i | ii
l ni ii| ( r)
I resided at Ayodhya until 1938 and after that kept
travelling to Ahmedabad, Madhya Pradesh, Kathiyavad,
Bomaby, etc. from 1938 to 1957, and went on journey to
Mountain Kailash and Mansarovar in 1958. (E.T.C.)
- liln i | i iin - - - i i
ni ri+ ni| - ri l - ri i| ii, ii| ii i iin i|
nini ii| - | i-- i l- - i| ii| | i- - i l- -i
ni- n| n - i liln i r| r| - n r| i r l
l - - ri i| ii, n i- - i l- i- - i l-
2114
r| i|, liln r| ri ini ii, n - ri i| ii i
ii| i| ii| ( cc)
I must have gone to the lower part of the disputed
building at least hundreds of times. (Himself stated) I was a
priest there; I was a Bhandari and I also performed 'Bhog'
(offering of meal to deity). I was a priest at Sri
Ramjanmbhumi. By Sri Ramjanmbhumi I mean three
domed disputed building. I do not remember the year in
which I was a priest there but at the time when
Ramjanmbhumi was not Ramjanmbhumi and as such it was
not fit to be termed as disputed, I was a priest as also a
Bhandari there.(E.T.C.)
- n| n - i liln i - i| i| ri| - n r
i r| r l - n| n - i liln i - ozo i ni ii
i oozoo i ni i ln| i ni| - n i r| r l n|
n - i liln i - - ln l i| - ri r| -
n| n - i liln i - i| - z i ri|
( /)
I was also a priest in the three domed disputed
building. I do not remember how many times10-20 times
or 100-200 times I went to the three- domed disputed
building. I do not remember for how many days I have been
as a priest at the three- domed disputed building. I was a
priest at the three- domed disputed building for 2-4
years.(E.T.C.)
2046. He contradicted his own statement of page 74 on page
106.
i in - i i ii -
ss sr/ | rc -r| nini r r| i r
r| r `
-n | ri , r| r| r |
2115
ni - i r ri r l ii r | zoo -/
i r i l i n| n - i liln i - i|
- ii i r nn ri ini r | ; -i - ii i
ri r`
-n i n i i nir ri l -i r i nn
ri ni r |
Question: As per the aforesaid statement of your own, you
have been at Ayodhya continuously for only 5-6 months
between 1931 and 1957. Is it true?
Answer: Yes, Sir. It is true.
Question: Then I have to say that your statement dated 5
th
February, 2004 mentioned on page 74 and reading as
'You served as a priest at the three domed disputed
building for 2-4 years' goes wrong. What have you to say
in this respect?
Answer: Going through the aforesaid the witness stated
this statement of mine has gone wrong.(E.T.C.)
2047. He also contradicted the very averment made in para 8
of his affidavit about his visit to Ramjanmbhumi since 1933 and
said:
l,i lrni lini ,ii nir i - |ii
ii in is i i |i--il- - sss ; o i
ini ri r , liii ni i r si ni l i r
i r i i| nn ri ni r , i l - i ii - i
r| r| ` in i i nir -n l i l ;-
sss nn l i ni r |
A portion of paragraph 8 in the affidavit filed at the
examination-in-chief which runs as 'I have been going for
Darshan at Sri Ramjanmbhumi since 1933' was shown to
the witness by the learned cross-examining counsel and he
was asked whether this statement of his has also turned
2116
incorrect because he was not at all present in Ayodhya.
Going through the aforesaid, the witness replied The
year 1933 has come to be wrongly written in it. (E.T.C.)
2048. Then ultimately on page 108 he said:
- n r i r| r l - | ssc r
l i l n i - i | ni i r| |
I do not remember whether I had ever gone or not to
the disputed building before February, 1986. (E.T.C.)
2049. He also contradicted his statement on page 13 about
his continuous stay from 1930 to 1942 on page 102.
l,i lrni lini ,ii nir i li ..
zoos -s i i i i i - - i | i
sz n nini ri r i ;| - i i i i
sso sz n - nini i i - ri i r li
nin z i | rin| r liii ni i r si ni l ;
in ii ii - i i sz n ii - nini
r i z i r | in r| r , i r i + l n
i - nil nn r` in i i nir -n li l
;- i sso sz n ni ni i i - r
i | i n l i | r , r - nn| ni ni r |
The witness was shown by the learned cross-
examining counsel a portion of the former's statement
dated 14.11.2003 mentioned on page 13 and running as 'I
have continuously been at Ayodhya from the age of 10
years until 1942' as also a portion of the statement
mentioned on this very page which runs as 'And I resided
continuously from 1930 to 1942 at Ayodhya and this period
is of nearly 12 years' and a question was put to him
whether his version as in the aforesaid two statements to
the effect that he resided at Ayodhya continuously up to
1942 and this period spanned 12 years, was incorrect as
2117
per the statement given by him. Going through the
aforesaid, the witness replied that the factum of his
residing at Ayodhya continuously from 1930 to 1942 has
wrongly been mentioned therein by him.(E.T.C.)
2050. DW 3/5, Raghunath Prasad Pandey is resident of
village Sariyawan, a place about 16-17 kms from the disputed
place. Later on page 34 he however rectified his statement of
para 1 of the affidavit saying that the actual distance is about 14-
15 kms. He was born in October, 1930 and his father died when
he was six years of age, i.e., 1936. He claims to have visited
Ayodhya alongwith his mother from 1937 to 1948 and that the
idols of Lord Ramlala was inside the building under the central
dome, i.e., Garbhgrih. Later on when he was confronted with
various photographs of the disputed building he got confused
and made contradictory statement. In order to justify his
statement about location of Sumitra Bhawan, he even disputed
the map prepared by Court Commissioner, Sri Shiv Shankar Lal,
which map has not been disputed by most of the witness of
Nirmohi Akhara as well Akhara itself, and ultimately he
admitted on page 84 that his statement is wrong.
i n i i nir ri l - i i n i
nn ri ni r | . . . .i n i i nir -n li
l -i in i n n ri ni r , i l ss - r
l-i i o o i ,ii lni li ni ii|
Going through the aforesaid, the witness stated
the aforesaid statement of mine has turned incorrect. . .
. . . . Going through the aforesaid the witness replied The
aforesaid statement of mine has turned wrong because
this Sumitra Bhawan was demolished by the Government of
Uttar Pradesh in 1991. (E.T.C.)
2051. Most of his statement travelled in the facts of antiquity
2118
and, therefore, wholly irrelevant and inadmissible since
admittedly he had no personal knowledge of those facts. So far
as the statement of his personal belief that the disputed place is
where Lord Rama was born, the same being matter of faith and
belief, no comment is called for but rest of his statement about
the history of the period of Lord Rama etc. is wholly
inadmissible. When asked about the source of his knowledge he
says on page 101 that he has heard the stories from his teachers.
On page 102 he says that three domed structure was constructed
by Raja Vikramaditya. Then he modified it on page 105 stating
that the building constructed by Vikramaditya was demolished
and thereafter the disputed building was constrcuted and for this
information refers to Ayodhya Mahatam. Sri R.L. Verma,
Advocate for Nirmohi Akhara, did not dispute that Ayodhya
Mahatam nowhere mentions that the building constructed by
Raja Vikramaditya was demolished and thereafter the disputed
building was constructed. The witness is an educated man
having worked in Indian Railway since 1948 till 1988.
However, on page 170 he claims to have heard the name of
'Babari mosque' for the first time on 18.11.2003.
s - zoos i - ri i
i i i i n - i + - r| i i | -l - i
i - i | r - i| i| -l- i i- r| i|
- s - zoos i r| r in r| i | i| l
- -i i n liln i i -l- -in r |
"I first heard the name of Babri mosque in
Lucknow when I came here to give my statement on 18
th
November, 2003. Prior to it, I had never heard the name of
Babri mosque. On 18
th
November, 2003 itself I had heard
for the first time that the Muslims considered the disputed
structure to be a mosque." (E.T.C)
2119
2052. Very interestingly he admits on page 172 that he has
wrongly stated on page 45 that he read his affidavit after it was
typed out but before its verification.
ni i i i n -r i - r nn li
ni r l i i n ii i -i; ri i n i
-iln ri ii - i ii`
-n | ri , r i n n n ri n; r |
"Question:- Then have you wrongly stated at the aforesaid
page-45 of your statement that you had read the aforesaid
affidavit at Faizabad, after it was typed out and before it
was verified?
Answer:- Yes, this mistake has occurred." (E.T.C)
2053. DW 3/6 Sitaram Yadav was born in 1943 and,
therefore, virtually had no personal knowledge about the facts as
they were, upto December 1949. Whatever he says is hearse and
inadmissible. We do not find that for the state of affairs as
prevailed upto December, 1949 his statement can be treated to
be relevant. Much of his averments are not relevant since he is
basically a witness of fact produced to show firstly that the
worship was going on inside the disputed building prior to
December, 1949 and the idols of Lord Ramlala also exist thereat
since before that and that all these things were in possession and
management of Nirmohi Akhara which information also he has
given based on information he has received, as he has no such
personal knowledge.
2054. DW 3/7, Mahant Ramji Das was born on 13.04.1923
at Katni (Madhya Pradesh) and has visited Ayodhya at the age
of 11 and 12 years.
l i l n -i i l r - i i n ili
| i - | | - i l - -i i n r | . . . .
ini i- i - r i, n -i | i ri n| r|
2120
r, r i| -i | i rin| r| r | ( s)
"The followers of Hinduism have been worshiping the
disputed site since time immemorial by considering it to
be the birthplace of Sri Ramchandra.. . . . . . The said site
has been worshiped since Lord Rama was born. The said
place was worshiped even before that." (E.T.C)
ss ssz n - liln -i i
i l-in i i, ~ri, , ii n ii~i i ; i | -
ii r| ( zo)
"From the year 1934 to 1992, I have seen the disputed site
and the 'Chauka', 'Chulha' (hearth), 'Belan' i.e. the
Kaushalya Rasoi, in the same form." (E.T.C)
l r i | - i , i -i i l i i i
ri r l n - i l i l n i | i n -
| i i i n - i - | i - r i i i i r|
i-ii li - i i| r | i-- il- -i i- | -
r i i ln rin| | i r| r | - liln l
| - ,i ri i ini ii| -i l- i
i in ir ln i ni lii | i i-
l -i n i | ( zzzs)
"The tradition, faith and belief of Hindus has been
continuing that Ramchandra was born beneath the
middle dome of the domed disputed structure and I also
have the same faith and belief. The Sri Ramjanmbhumi site
is reverable since the times of Ramchandra and has been
continuously worshiped. I used to go through the eastern
main gate of the disputed structure to have darshan. On
coming out after having darshan, (I) used to
circumambulate by turning southwards." (E.T.C)
ss - - ii ni ii, ni - -| i
nin irir i i|| - n i r| r l - ss -
2121
i i ni i r| | ( z/)
"In the year 1934, when I had gone to Ayodhya, at that
time I was aged around 11-12 years. I do not remember
whether I had gone to Ayodhya in the year 1934, or not."
(E.T.C)
- n i ni r nii ii l ss n - liln i
i lii - -i ii| liln i i lii ii i;
iin ss - r| --i ii| . . . . . ss
ri r i i ; i ni liln lii -- in
nii ii| . . . . . ss nin i r i i - i i
ni| ; i r ii i i i| - i i i i ni r | . . .
. . ss i ss i i - i i i i ni
ii, ni - i -ii ii - -ri ii| - - -ii
-r n i li r| r i ii| ( zs)
"I was told by people that in the riot of the year 1934, a
dome of the disputed structure had fallen down. Apart from
the dome of the disputed structure, no other part was
damaged in the riot of the year 1934. . . . . . .About 15-16
years after the riot of the year 1934, these persons had told
about the damage to the disputed dome. . . . . . .I went to
Ayodhya about 14 years after the year 1934. In the period
of 14 years as well, I had been to Ayodhya on couple of
occasions.. . . . . . .When I went to Ayodhya on couple of
occasions between the year 1934 to 1948, I had stayed at
'Bada Sthan', Ayodhya. At that time, I had not become the
disciple of the Mahant of 'Bada Sthan'." (E.T.C)
- lln r r| ni ni l - ss i
ss | - ii ln| i ni ii| - n i r| r l
ss ss | - - ii ni, - -| i
i i|| - lni| ii ni ii| - n r i r| r l
ss i r| i - i i ni ii n -
2122
ss i r| i - i i ni ii, ni n| i l ri
ii| ( zs)
"I cannot definitely tell as to on how many occasions had I
gone to Ayodhya between the years 1934 to 1948. I do not
remember as to what was my age, when I visited Ayodhya
between the years 1934 to 1948. When I had gone along
with my father. I do not remember as to when did I first go
to Ayodhya after the year 1934, but when I first went to
Ayodhya after the year 1934, I stayed for 3-4 days."
(E.T.C)
liln i - -ln ss r r| i|| ( s)
"The idol existed in the disputed structure from before the
year 1949." (E.T.C)
ss i liln i lin i; i-i r|
r ; | ( sc)
"After the year 1949, no incident occurred regarding the
disputed structure." (E.T.C)
- i i - -ii| li ss i-i li ii|
( s/)
"I started living permanently in Ayodhya from the year
1948." (E.T.C)
ss i - lni | i| ii r| n| -
lni| i rii s/s - r i ii| -| -ini | i rin
s/ - r i ii|
"After the year 1948, my father never visited Ayodhya. My
father expired in the year 1947-48. My mother expired in
the year 1947." (E.T.C)
2055. Contrary to the stand of Nirmohi Akhara, on page 75
he admits the construction of Babar of the disputed building:
liln i l c l- ssz i lnii ni,
i ,i i | ni i | i - i i ni i i , -l-
2123
| i - r| | . . . . . . . l i l n i - -
- - -i i i -i | -i | ;i n i |
i i | - - l r i i i i | ;i n
i | | ilr- i ;lnri - ; in i ni r| ni r l i
| - liln i - -ii ,ii -i |
in| i| i r| i i- | i i ri n| i| i r| | ri n
- | ii| r i i - n nii ni r, l i l n i -
ss n i i | -i r| r ; , l~ i
ri i i i rin| r|| i -| ii| r i i
ln iiiln r , - ss n liln
i - - | -i rin| i|| i| l -i r| | in| i||
( /r)
"The disputed structure, which was demolished on 6
th
December, 1992, was built by Babar in the shape of 'Sita
Pak', (and) not in shape of mosque. . . . . . . . In the period
of Akbar, Muslims had the permission to offer Jumma
namaz in the disputed structure and for the remaining
period, Hindus were permitted to carry out prayer-
worship. It is not found in literature or history as to
whether in the period between Babar to Akbar, namaz was
offered by Muslims in the disputed structure or not, or
whether the prayer-worship of Lord Rama was carried out
or not. To the best of my knowledge and as told to me,
namaz was never offered in the disputed structure after
the riot of the year 1934 and instead prayer-worship was
regularly carried out over there in the later days. As per
my knowledge, which is based on hearsay, the Jumma
namaz was offered at the disputed structure from the times
of Akbar till the year 1934. Namaz was not offered on other
days." (E.T.C)
liln -i l i |ni i i- i ,i i
2124
-l ni i i ni i i , -l- r| i ni| ;
|ni i i i--il- i- in r | ( sc).
"The site of the disputed structure was built by Babar
under the name 'Sita Pak', (it was) not a mosque and
since then it is known as 'Sita Pak' and Ramjanmbhumi."
(E.T.C)
liln -i r| |ni i i li r i , n i|
|ni i i| i i- i - r| i r| i i-
ii| - ri l liln i i- | i ni i
i-i i i r i ii| - ri l i liln i
|ni i ;l liii ii, i l i -l-
i i i li, - l ri, r -i | i i lni n
i , n ii ni | i - nil i |ni i
liii i -|ii i lni li nii i i li l - -i
l - | -i n , i| l i, ~li i- ri ni|
( scs/)
"The words 'Sita Pak' were inscribed at the disputed site
itself, however, (it) was neither in reference to 'Babri Sita
Pak' i.e. name of Babar nor with the name of Babar. Stated
on his own that Lord Ramchandra's 'Shatkon Yantra' of
'Tarak Yantra' were there at the disputed structure. Stated
on his own that Babar had got 'Sita Pak' inscribed at the
disputed structure in view of the fact that whenever Babar
attempted to build the mosque, he remained unsuccessful,
(as) Hanuman Ji used to demolish the building, and then as
per the advice of saints-sages, Babar got 'Sita Pak'
inscribed over it and dismantled the minarets and ordered
that Muslims would offer only the Jumma namaz and on the
remaining days 'Dev Puja' (worship of deities), 'Rishi Path'
(orations by sages) would all take place." (E.T.C)
2056. After long drawn cross-examination ultimately when
2125
he found several mistakes in his affidavit, said on page 169:
i i -ni n n - - r|
i i i | - ; ii i ii i - i i
ii i - i ii|
"I had not read the affidavit at time of signing it. I
had read this affidavit after entering the Court room, in the
Court room." (E.T.C)
2057. DW 3/8, Pt. Shyam Sunder Mishra born in 1914, has
claimed to visit the disputed premises and worship Lord Rama
inside the disputed building from the age of 14 years. However,
on page 119 he says that the disputed building was attached on
23.12.1949 and this was told to him by Baldev Das and Bhaskar
Das when he visited the premises for Darshan.
zs l- ss ini ~ i nii ii i
liln i ri | in - n nii ii| - r i
ni ni ~ i nii ii i | ri i - - n
nii ii| . . . . . zs l- ss | r i; i| ln
i r| i ni ii, ir r| in i n i |
i i n i-i | - ln i n i |
"In the morning of 23
rd
December, 1949 Baldev Das
and Bhaskar Das had told me about attachment of the
disputed structure. When I had gone in the morning to have
darshan, Baldev Das and Bhasker Das had told me about
the attachment. . . . . . From the morning of 23
rd
December,
1949 no person could go inside to have darshan, (and)
people used to have darshan from outside. People used to
have darshan of the idol of Ramlala." (E.T.C)
2058. About his belief he said:
liln -i i r| i- - i l- - i
ri n| r| r| i -i ni- r r l - i | -
ri i ni n - i- - il- - ii r |
2126
ri i - i i i n i | - r l i l n
-i i ri i i ri i - - n i ;
i i | r| r | l i l n -i | i - | i
r i | - r r| ni i+ ni l i- | i ln i
r i r |
"The disputed structure has been worshiped as
Ramjanmbhumi from the very beginning. By 'very
beginning', I mean that since I started coming there from
the age of 14 years, I have seen it as Ramjanmbhumi. I
have no knowledge about observance or non-observance
of worship at the disputed site, prior to my attainment of
maturity i.e. before the age of 14 years. Lord Shri
Ramchandra was born at the disputed site. I will not be
able to tell as to how many years ago, was Lord
Ramchandra born." (E.T.C)
2059. DW 3/9, Ram Ashrey Yadav is 72 years of age, which
brings his year of birth to about 1932. He claims to have visited
the disputed place at the age of 12-14 or 15 years. Interestingly
about his affidavit he say:
- i ; ii - ii ili li r | - -
r r| i i l - ,i i i l i ; i i -
i l i i r | ; ii i - i| | - n ii ii,
n - i| | i i- - n r| -i - r | - ii - ,
i -nin l i, n - i l i i r , r
- n r| -i -| r ii n| i i i ii| ( c)
Today, I have filed an affidavit in this Court. I was
not able to read on my own as to what was written in the
affidavit filed by me. This affidavit was read out to me by
the 'Munshi' (advocate clerk), but I do not remember his
name. I had only put my signature on the affidavit after
hearing the same, but I do not know about its contents.
2127
This affidavit ran into three or four pages." (E.T.C.)
2060. Then on page 8 he says:
- i | n i i i i l r , r
r| i | ri n r i nn i | | i | r- r|
i r , i - i i i nn i | ri ni
r | ; - r-ii i ri; r, ; ii r-i i l -i n -|
r| r | - ii - /s r ni | - -i ii, n - -|
ii| i-n - -| nln ii n n| i ii | r n r n
- i i i n ni| ; - - | nln ii n r| r
i - i l -i n i - r| ri r i - irni r l i
i - i l i li li i | ( s)
All my answers till now, may be right or wrong.
My answer can be wrong as regards the facts I do not
remember. Presently I have high blood pressure, as such
my mind is not functioning properly. I was alright when I
took the train at 7-8 AM at Faizabad. My health started
deteriorating on the way and my blood pressure increased
by the time I reached Barabanki. At present I am not
feeling well and my mind is not working properly and I
want that instead of today, my statement be recorded on
some other day. (E.T.C.)
2061. On his request the cross-examination was adjourned
but on the next day also when he found difficulty in replying the
cross-examination claiming his bad health he says:
i i | - i -i -i -| r| r | nii i i| - n
ri; i r| ( )
My health is not good even today and I have high
blood pressure today as well. (E.T.C.)
2062. Further on page 18 he said about his bad health:
i i | - | nl n -| r| r | ( s)
Today also I am not well. (E.T.C.)
2128
2063. Then he took the plea of weak memory.
- i l -i n so -i r -| i - r| ri
r | - | i i n -i ri n| r | i i - in
i | - - zs i rii - ;l nii r i l l -i n
| -i | i i , r -| i - r| ri r |
( z/)
My brain has not been working properly for 8-10
months. My memory has weakened. In my statement of
the day, I have stated the death of Dhanpat Yadav to have
occurred 2-3 years ago, due to weakness of my brain,
which is not working properly on that account. (E.T.C.)
ii| i ii | iii o i ii ni|
; i i i - l i | i ni i - l i i i i i i r| ,
- n i r| r | . . . . . . . . . ; iii | | n|| i;
- - r lii r l zzzs l- i ni n r iin - -ln
ii - nn in r, r in ss | i-i lin r
ii r| , r - n i r| r| ;| iii - - r i| lii r l
s - i-| - -ii . . . .| i ir| i li| r |
i ir| l i - i|, r - n i r| r | - ri l
| i i r| i - ~ i l i r , r ss |
i -i l i n r i i r| , r - r| ni ni |
( ssz)
The paragraph 10 of his affidavit, was read out to
the witness. I do not recollect whether the facts
mentioned in this paragraph, had been got incorporated
by me or not.. . . .. .. . In second and third line of this
paragraph, I have mentioned that 'the placement of idols in
the 'Garbh-grih' portion on 22-23 December, is totally
wrong'. I do not remember whether this fact is related to
the incident of 1949 or not. In this very paragraph, I have
also mentioned that 'few local Muslims. . . . . . . . . .got the
2129
forged action taken'. I do not recollect as to in which
behalf, was this forged action. Stated on his own that I
can not tell whether the forged action mentioned by me
was related to the incident of year 1934 or not. (E.T.C.)
; - - i l -i n i - r| ri r | ( ss)
My brain is not working presently. (E.T.C.)
i - i i ri r , i l --i i i -
i ri i ni | - i ni r ni i - n --i rni r , -
nini r | - | --i i l n -i ri n| r , n ;
i - - i ni r | - r ni i r l -| --i iln
-i r, n - ni i i ini r nii li - i i|
i|i| r| rini r | - r i -ni r| r l -
ni i r r r l l n l ni
n n r| r | ( rrz)
The statement being given by me today, will be
forgotten after two hours. Whenever I give statement, I
tell whatever I remember. My memory has become weak,
and I can do nothing in this behalf. I have told that my
memory has become weak, as such I forget the facts and
sometimes fail to recognise even the family members. I do
not have the capacity to ensure before stating that the
facts are correct. (E.T.C.)
2064. DW 3/11, Shri Bhanu Pratap Singh is also a resident
of Village Haliyapur, district Sultanpur and is aged about 70
years in April 2004, meaning thereby his year of birth comes to
1934. He claims to have visited Ayodhya before 1949 and that
the idols were kept inside the building in the inner courtyard
prior to 1949. The idols of Bhagwan Ram Lala and others were
also there on Ram Chabutara. He visited the disputed building
for about 40-50 times upto 1949. The distance of his village
2130
from Ayodhya is 54 Kms. On page 29 he virtually admits of
having given his wrong age as is evident from the following:
- | - lnli ri; - -ii - i; ssc li| r ;
r| ( zs)
My date of birth is mentioned as 1
st
July, 1936 in
the High School certificate. (E.T.C)
2065. His father expired in 1945 as said by him on page 30.
He used to visit Ayodhya with his grandfather. There are several
contradictions in his statements but for us suffice to mention
about his admission regarding weak memory.
ni i - r -n l i| --i iln ;n| i|i ri n;
r l i i l-- - in i in r i l i l-- i
ii i i in| r `
o - | --i i l n s - i r | ( c)
Should I consider that your memory is so weak that
you forget facts within five minutes and then you recollect
after five minutes?
Answer:- My memory is a bit weak. (E.T.C)
- n i i i ii n -l r nn r ,
i l -l -i i r| n i| . . . . .; i - - n n i
i i; ii r| ni ni, - s ni i i i ni
r , l ii ; i i l in r| i i ni-
r r l n - - n i r| rn r| ( or)
The portion temples all around of my above
statement, is wrong because temples were only on two
sides. . . . .In this behalf, I cannot give any reason for
making wrong statement. I forget few facts due to which
such statements are made. By forgetting, I mean that I do
not remember those facts at that time. (E.T.C)
li zs..zoo - zo lillin i i i
- n| n - r| i i, n| lii i i, n - nii lii
2131
r| r| ri ni r nn ri ni r , n - nii lii r| ri ni r|
i | ; nn| i i; ii r| ni ni| . . . . .i|i|
i i i i - n n n| ri i n| r | ( oc)
The portion I had not seen the three domes, had
seen the three vertexes, dome and vertex are not same of
my statement dated 29.04.2004 at page 20, may be wrong.
Dome and vertex are same. I cannot give any reason for
this mistake in the statement....... Sometimes such mistakes
creep in on account of loss of memory (E.T.C)
2066. DW 3/12, Ram Akshyawar Pandey:
- i--il- - l ii n l -i r| li r |
i- n | l -i li r | ( /)
I have not performed circumambulation of the
Ramjanmbhumi temple. I have performed the
circumambulation of Ramchabutara." (E.T.C.)
ri l-in - l ri i-i li-i i, ri
n| n - i| i- ni i-i - l n | i i;
nin co rii | i|| ( zr)
The temple, where Ramlala was present, had three
domes. The inside width from Ramchabutara to Ramlala
temple was about 60 yards. (E.T.C.)
r ri nn r l li zs.z.ss | in - -ln i
i| n; i||. . . . . .- ni ii - n ; i - nii ii l
i--il- l- i-i - r, ii ii, r ln ni|
( z/zs)
It is wrong to say that the idols had been placed in
the night of 23-12-1949. . . . . . . . The villagers of my
village had told me in this behalf that the Ramjanmbhumi,
in which Ramlala was present, had collapsed as it was
old. (E.T.C.)
; - - l - r n n nii i i i r , ;l - -|
2132
r| i i ri r i r| ni ini l i - ln
ir ln| i i; i r| ( ss)
I have severe headache and my eyes are infected,
hence I am not able to see properly and as such I will not
be able to give the number of Doha and Chaupai in the
Sundar Kand. (E.T.C.)
i l - l - r i -| ii r| r| . . . .
. i - ;i i r| ni i+ ni, i l -i l ri r|
. . . . r i i i i ri r | ( o)
Because I have headache and also have pain in my
eyes. . . . . . I will not be able to give its meaning today
because of headache.. . . . . . My memory is failing
because of the pain. (E.T.C.)
liln i, l- n| n - i, i l i
ii ii, ; i - - ni r| i i i| ( z)
I have nowhere read or heard as to who
constructed the disputed structure with three domes, and
when. (E.T.C.)
; -i - - r i r l r -i i i -
| i --i i r | ini i- i - n| n - i i
| i n - | i -ii r i ii| ( )
I have so heard that this place is the birthplace of
Lord Rama. Lord Rama was born at the place below the
mid dome of the three dome structure. (E.T.C.)
- i i i i i l i | i i i
ni i i , n - | i z i | i | | - i i
i i r| i i i ni i i , n - | i i i | ,
r - r| ni ni , i l - - r n si-i ii|
( s)
When I last visited Ayodhya along with my
grandfather, I was aged 12 years. I do not remember my
2133
age at the time when I first visited Ayodhya, since I was
quite young at that time. (E.T.C.)
ni i i| iin ;n| -i r l i ii |
r r| n| in i in r`
-n -| iin -i r| r , n l - ri
ii i|i| l-in - i ini r| ( r)
Question:- Is your memory so weak that you are
unable to recollect what you have stated sometime back?
Answer:- My memory is not weak, but on account of
headache, sometimes there is dizziness. (E.T.C.)
- r r| ni ni l - ii ii r| i
i i ni ii, - -| i s i | i| ii r| | ......
ln ini - n r nii l ; - - | - /o i | ri |
r| . . . . .- i| - - r| ni| - - | - i i ii,
l- - ni ri - n| ii n liii i; |
( rs)
I can not tell whether I was aged nine years or not,
when I first went to Ayodhya along with my
grandfather. ........The priests told me that I am aged 70
years now. ....... I never went to school. A temporary school
had been established and I received education there upto
Class III-IV. (E.T.C.)
i n| n ri ni r l - i n - i ni
i i | ( cs)
It appears that I had forgotten at the time of my
statement. (E.T.C.)
i i n - - i l -i n r| r| i i |
( /s)
I was not in my senses during my deposition of
the day. (E.T.C.)
2067. The above extract is self evident to make this witness
2134
unreliable.
2068. DW 3/13, Mahant Ram Subhag Das Shastri, aged
about 86 years in 2004 meaning thereby his year of birth comes
to 1918, came to Ayodhya in 1933 and since then is
continuously visiting Ram Janam Bhumi Temple. He has
confirmed existence of Ram Chabutara, Chhati Pujan Sthal,
Charan Chinh, Chakla and Belan as well as Bhandara in the
outer courtyard of the site in dispute. He says that various idols
of Lord Rama, Lakshmanji etc. were present on Ram Chabutara
as well as Garbhgrih when he used to visit Ram Janam Bhumi
Temple for Darshan and worship of Lord Ramlala. The incident
of 23
rd
December, 1949, he claims to be a fictitious one and says
that the entire disputed building was in possession of Nirmohi
Akhara who were managing and serving. It was a temple of
Nirmohi Akhara and Math. He also deny that any Namaj was
offered in the entire building in dispute. Three documents he has
annexed alongwith his affidavit to show that he had to sign a
bond alongwith Baba Abhiram Das, Baba Brindaban Das, Baba
Ram Vilas Das, Naga Sudarshan Das and Ram Shatrudhan since
proceedings were initiated against them under Section 295/448
after the incident of 23
rd
December, 1949. However, in cross-
examination the witness gave contradictory statement to the
stand of the plaintiffs (Suit-3), as is evident from the following:
ss -ir - i i - nn i r i ii| ;
nn i i i - r ii - ni ii| - ri l
ni i| ri n| i| l- s - -i -i n i , i
i--il- + i ii ii i lr i n lni n ,
- n i i i ii, i i i| i lnnln
li, i r| lr i -i i nii ni ii| sr ri
-i - ni n| ( r)
A riot had broken out in Ayodhya in the month of
2135
April of the year 1934. After this riot, a tax had been
imposed on the residents of Ayodhya. Stated on his own
that cow slaughter had taken place, in which few Muslims
had been killed and thereafter the Hindus started
demolishing the structure standing over Ramjanmbhumi. At
that time there was British rule and the army had come and
scattered the crowd. The fine was imposed on the Hindus
only after that. A sum of Rupees 85 thousand had been
imposed as fine. (E.T.C)
sss i n rn i l i | -l - r ,
n - i - i ni i i ni nni i i l r
- l r | ( zs)
Prior to the year 1983, people used to say that (it) was
Babri mosque, but when I used to see, it appeared to be a
temple. (E.T.C)
- ri l ; - l i -n i i
ni i i | ( zsz)
Stated on his own that it had been built after
demolishing the temple. (E.T.C)
i | -l - - n| n - + i | i| -l-
nin i l - -| nii nin n| r| i | i|| - ri l
-i; nii i i; nin i i|| r ri n n r l ii|
nr -l- i| n|, l ~ r -l -, - l ni
i | n| i | | - ii ni r, n i| -l- -
-i r| | n|| i| -l- -ii l i i|,
| i i- r|| . . . . .zz,zs.z.ss | in - liln
i - iir r i, in - i -ii r ; , r - n ni r| ,
n ;ni l l n r i l | - l n -i | n| |
( z)
There were three domes on top of the Babri
mosque. Babri mosque was about fifty feet long and
2136
equally wide. Stated on his own that length and breadth
were almost similar. It is wrong to say that mosque was
built at vacant place , and instead this mosque was built
after demolishing the temple. Since I have been to
Ayodhya, namaz has not been offered in the Babri mosque.
Babri mosque as it was stood at this place.. . . . . . .. There
was disturbance in the night of 22/23.12.1949 in the
disputed structure, but I do not know as to what
arrangements were made in that night. However, this
much transpired that new idols had been
installed.(E.T.C)
i ,ii ll- n i roo i ii rini| - ri l
l - i i , | - r i i| l - i r
i ii, i i n -l- - ii nin r, n i
i i r i, - l -i - ni ii| l - i
l i l n i i i i i , | - r i ssz
n i i i | ( sr)
The structure built by Babar would be 500 years
old. Stated on his own that this structure was build in the
period in which Babar existed. At the time when Babar
built this structure, it is said by people that he built as a
mosque, but on looking at the structure, it appeared to be
a temple. The shape in which Babar had built this
structure, continued as such till the year 1992. (E.T.C)
ss i i liln i l- r i ii| r i zs
l - ss | i n - r i i i , ;| ii| l
ii n z l- ss i r ; | r r| r l r i zz,zs
l- | - il - r i ii| r i l i l n i -
- l n i i - r i i i | i ; rni ii l ini
- - ri n r, i; rni ii l - ln i | n; r| in
- liln i - r| ni ii| - in - liln i r| ni
2137
ii, l i| - i i- l--ln li ni| ( )
The riot of the year 1949, occurred at the disputed
premises. This riot broke out in the night of 23
rd
December, 1949. I came to know about it on the next day
i.e. on 24
th
December, 1949. It is correct that this riot
broke out in midnight of 22/23 December. This riot had
broken out in respect of installation of idols in the
disputed structure. Some claimed that the deity had
Himself appeared, some said that the idols had been
installed. I had not been to the disputed structure that
night. I had not gone to the disputed structure in the night,
still my name was included. (E.T.C)
- li /./.zoo i - r i li r l
zz,zs l- ss i i r i ii, i liln i - - ln
i i - ii, i ; rni ii l ini - ri n r, i ;
rni ii -ln i | n| r - i r i r| r | ( r)
On 7.7.2004 at page-41, I have stated that a riot
had broken out in the night of 22/23 December, 1949,
which was in respect of installation of idols in the disputed
structure. Few used to say that the deity had Himself
appeared, few used to say that the idols had been
installed, this statement of mine is correct. (E.T.C)
ss - i l ni l i l n i i - l
-n + r-i l i i i | in| i n -
i| liln i - i in i| ( ss)..
In the year 1934, the recluses had attacked the disputed
structure, considering it to be temple. At that time also,
the recluses used to go to the disputed structure for
worship. (E.T.C)
i - l i i ni -l - i i
i i , n r i -l- r| i ii| i i ; i -
2138
n r i, l- - ln i | r , ;l r niii ri ni|
( o/)
Babar had built the mosque by demolishing the
structure of temple, but he was unable to make it a mosque
completely. 14 pillars were fixed in this structure, which
had idols engraved over them, and as such it became a
place of idol. (E.T.C)
2069. He admits weak memory.
- ri l -i i l i ri i i - n
l -- l n ri i n| r | ( zo)
Stated on his own that on account of advanced
age, my memory fails me. (E.T.C)
r i r l ssss i | in i| - n l-- n
ri i i ri n; ri ii n ssss i | i n i |
- i i i l i r | ( zs)
It is possible that the post 1933-34 facts are also
fading away from my memory i.e. I have also started
forgetting the post 1933-34 facts. (E.T.C)
r r| r l i n - ~-| ~-| i n
l i n| r nii ri ni r l -i r i l ii,
i i - iil- r , nn ri| ( oc)
It is true that I make unnecessary utterances at
time of giving my statement and it is possible that my
statement Faizabad is included in Ayodhya may be
wrong. (E.T.C)
- i -l -n ;i i ri ni rni r | ( os)
My mind tends to lose concentration. (E.T.C)
2070. His statement about the existence of Chhati Pujan
Sthal, Charan and Ram Chabutara in the outer courtyard of the
disputed building could not be discredited in the cross-
examination where he has categorically and in clear terms,
2139
consistently made similar statement. Then on some occasions he
has also made contradictory statement.
zz,zs l- ss | in - liln i - l -
ir -l-- - i , -ln i r| i| n; , -ln i r i| |
( oz)
These idols were not installed in the disputed
structure in the night of 22/23 December, 1949, when Mr.
Nayyar was the Magistrate, these idols were already in
existence. (E.T.C)
2071. The statement of DW 3/13 does not support Nirmohi
Akhara, plaintiff (Suit-3). In fact, it is contrary to their
pleadings. It is well settled that evidence which are totally
contrary to the pleadings ought not to be entertained by the
Court. A Division Bench of Patna High Court in Parmeshwari
Devi and others Vs. Khusali Mandal and others, AIR 1957
Patna 482 has observed:
"......evidence at variance with the pleadings is not
permissible and, if adduced, cannot be looked into to
sustain a claim which was never put forward in the
pleadings."
2072. The entire case of Nirmohi Akhara is that there never
existed any mosque and nothing was constructed by Babar or
Mir Baqi at the disputed site which all through was a temple in
the management, control and possession of Nirmohi Akhara and
no riot or disturbance occurred either in 1934 and nothing
happened in the night of 22/23 December, 1959 but the same
stand totally belie by DW 3/13.
2073. DW 3/14, Jagadguru Ramanandacharya Swami
Haryacharya. He is the head of Ramanandi Sampraday since
1985-86. His statement is not relevant as to whether the idols
were already existing prior to December 1949 inside the
2140
disputed building but he in general gave history about the birth
of Lord Rama. He has explained the concept of Panchkoshi
Parikrama on page 64 as under:
-riii ii i-r i i i l i~-|l
i-ii - l~lin r , i i i i nn n l-in r| r
i i i | l -i nn n r, ii i-r | r|
l -i ri n| r| ri i | i ri n| r , ri -rii ii
i i-r i ri ni ii nii ri i | l -i -in ri n|
r ri -in ri ni ii| ( c)
The area of King Dashrath's palace as mentioned in
the Valmiki Ramayana, is located within 5 kosas (unit of
distance) of Ayodhya. This distance of five kosas is within
the panchkosi prikrama, which is only the
circumambulation of Dashrath's palace. The panchkoshi
starts from the place from where the palace of King
Dashrath started and the panchkoshi circumambulation
terminates at the place where it (the palace) ended.
(E.T.C.)
2074. Similarly on page 67 he explained 84 Koshi Parikrama
observing that it encompasses the then entire Ayodhya. On page
118, 120, 127 and 128 however he said:
; i l i l n i | l i
i -i | | - l n i i r - sc/ -
i i i i ( s)
I saw the idol of Ramlala installed inside the
disputed structure on the stairs, in the year 1946-
47.(E.T.C.)
- r| i r l - | | -ln i i li ii,
n - n - | i ri i r| li ii, l~ r -
i ri i li ii| ( zo)
When I first had Darshan (offering worship to the
2141
idol) from a distance of 15 feet, I did not have Darshan
from under the dome and instead it was done from the
courtyard. (E.T.C.)
| r - i ini ii, ni i i i
i i ni ii nii i i in n i
inii ii| i -i- - r- ii ii ri ini ii| - n -
i i - i| i- nii i| - ii rni ii, - ri
l| r| i|| - |i i| |i, l- ii i-
nii si-i i- ii, ri i ini ii| i|i|
i ii i- rni ii ni - |i i i- i
ini ii| ( zo)
Prior to the attachment whenever I went for
Darshan, I had Darshan at 5.30 PM and usually I
returned by 7O clock. It always turned dark during
winters. Sometimes lantern and sometimes lamp was kept
in the domed building. There was no electricity at that time.
I used to go through the main gate and a small gate in the
grill wall to have Darshan. Whenever the main gate was
locked, I used to go through the grill gate. (E.T.C.)
- | - |ii ii | iiir - s l- + , zo
l- - nii / l- i n i ~ i r , r ~ i i-
n i - r | - i - i i- n i o l-
-i nii zo l - i i nii r, - | - | i i i i
| i i i r - i - n | - i ; i l ~l i n r ,
r r| r| r | - | - |ii ii | iii
c - l s- -| -i i ~ i li r i - li
i~-|l i-ii - -i s- -| - l-ni r , - s- -|
-i i ~i r| r, i-l -i - i| s-| -ri-
-i i ~i r n s- -| -i i ~ i r| r |
i-ln -i nii i~-|l i-ii - -i s- -| i ~ i r ,
s- -| -ri- i ~ i r| r | ( z/)
2142
In para 45 of the affidavit of my examination-in-
chief, there is mentioned about a platform 3 feet high, 20
feet long and 17 feet wide. This mention is about
Ramchabutara. In my statement today, I have mentioned
the Ramchabutara to be 40 feet long and 20 feet wide. The
length of Ramchabutara mentioned in para 45 of the
affidavit of my examination-in-chief, is not correct. The
detail about the Chhathi (the sixth day after the birth of a
child) worship place mentioned in para 46 of the affidavit
of my examination-in-chief, is found only as Chhathi
worship in Valmiki Ramayana, but it does not mention
about Chhathi worship place. The Ramcharit Manas also
mentions about observance of the function of Chhathi, but
there is no mention about Chhathi worship place. The
Ramcharit Manas and Valmiki Ramayana only mention
about Chhathi but there is no mention about the function
of Chhathi. (E.T.C.)
i lr, i, i ~r i i; ~i ni
i-ln -i - r r| i~-|l i-ii - r | - | - |ii
ii | iiic - l i lri i ~ i r , iiii
i | ; i lri | i i|| i i| iiii i ii, i i|
iiii i ii, ~ri ri ni r l-- -| i ri ri i l ; -
ii ii| | s x o l- | | ii| | i
ni- n r | r ni i n + i ri ri ni| r
ni l i i , i ni i ~ri i i , ;
i i ~i i ni i | ni i ; i | ri i ni i i | . . . .
. i i ~i i ni i i i ~i i ; r| | r
|| i-ii in nn in r i i~i i ;
ni- i ; r , li i n i i~i | n| i|| r i|
i r l i i~i i ; i i n |ni| i| n| r| ri | -
i - nii r l i-| nii |ni| n -r - rn i
2143
nii ii~i | n -r - rn| i|| ( z/zs)
Neither in Ramcharit Manas nor in Valmiki
Ramayana, is there any mention about foot sign, Belna
(traditional utensil used for rolling breads), Chakla
(traditional utensil used as base for rolling breads) &
stove. The foot signs mention in para 46 of affidavit of my
examination-in-chief were of stone and were four in
number. The Chakla and Belna were also of stone, but
the stove may have been of earth because I had seen it from
a distance. All these items were on a Vedi (platform) of
8x10 feet. Vedi means platform. This platform must have
been four finger tall. The platform over which were these
Chauka, Belna, stove, was also called Kaushalya Pak
and Sita Rasoi.. . . . . . . . . . . . . Both Kaushalya Pak and
Sita Rasoi are the same thing, and people refer them
differently out of their faith. Kaushalya Rasoi implies that
kitchen which was used by Kaushalya. It is possible that
Kaushalyas kitchen was used by Sita ji. I have stated in my
statement that Lord Rama and Sita lived in a separate
palace and Kaushalya lived in separate palace. (E.T.C.)
2075. On page 136 he made a statement contrary to the stand
of Nirmohi Akhara.
c l- ssz i liln i ln - i|
- ln i ;l r| - -| i l i iisi ( - n| ) s
ln i li ni ii| c l - ssz i i n i
i - l n i l i l n i - i | r ; i | , r - l n i
i l n i i i | r| i | r| | i i| - ln i
r| i| r ; r| i lri ni liln i ln
ri i r i nii l- -ln i i| r ; i| , r lri nii ni
i i| | i ii r i r| ; i - - i ii i l c
l- ssz i - ri i r| ni| r in -
2144
liln i ln l i- - lnili i nii ii i
| i|| ; i i| ; i - - i ii| - r in i-
ii-|, iiliin, i-i -|i l-, -i i i- - r
i lnii| nii ii r , | i|| r i| i n i| |ln r
nii - i- - rn r | ( ro)
The idols present in the disputed structure did not
break down due to collapse of the structure on 6
th
December, 1992 because by a protective cover, nothing
was allowed to fall over it. The idols present in the
disputed structure in the morning of 6
th
December, 1992,
were present at that place even during the collapse of the
structure. Even today the said idols are at that very place.
The throne and swing, in which the idols were placed, were
there in the disputed structure before its collapse and even
today the said throne and swing are kept in the same
manner. I had heard about this, because after 6
th
December, 1992 I have not been there to have Darshan. I
had heard this on the next day of the collapse of the
disputed structure, from students and saints in the Ashram.
I heard about this even subsequently. I had learnt this from
Ramdev Shastri, Shashikant, Ramdas, Ambrish Mishra,
Kamaldas who are students and saints of the Ashram. They
all are alive even today and live in my Ashram. (E.T.C.)
2076. About observance of Namaz in the disputed building
on page 151 he says:
i i i l ri -i ri n| r|
ri , ni ;| i i | - n r| r | ( r)
I have no information if Namaz was offered
there, before I came to Ayodhya. (E.T.C.)
2077. About the place of dispute he admits that there is no
mention in the plaint.
2145
l l i l n -i ni i l i l n i i -
- ; i i - i ri r , i - ;
i - s r| l i i r | ( cs)
Nothing has been written in this plaint about the
disputed site and the disputed structure regarding which
I am giving statement in this Court. (E.T.C.)
2078. On page 183 his statement did not rule out placement
of idols inside the disputed building in 1949:
r i r l ss i i l i r i ni i
l i l n i - i - l n i | n| - i i -ii|
lr ii; i i i; ini r| ii l~ ir in| ii in
l-- i r | ( ss)
"It is possible that in the dispute that occurred in
1949 and in the incident in which idol had been placed
in the disputed building, the local Hindus of Ayodhya had
no role; rather, outsider ascetic saints were responsible for
the same." (ETC)
2079. It is worthy to mention that on page 159 he has said
that:
- r ni r| l -i r| i i i i - ri
r | ( rs)
I am giving this evidence in favour of Nirmohi
Akhara. (E.T.C.)
-n - r| - - l-i r| ii i i- l i
-n - - - nir| ri r, l| - - i - nir|
r| ri r| ( c)
Answer:- I am giving evidence only in one case viz.
Nirmohi Akhara versus Priya Dutt, and not about any
other case. (E.T.C.)
2080. DW 3/15, Narendra Bahadur Singh. According to
age he has disclosed, his year of birth comes to 1932 and he
2146
claims to have visited the disputed site at the age of 15 years.
- r i | i - i--il- i i i ni ii,
n ; r i| - -inilni ii r i ii
ni ii| ( z)
I had started going to have Darshan of
Ramjanmbhumi at the age of 15 years, but even before that
I used to go to have Darshan there along with my
parents."(E.T.C.)
2081. He is resident of Village Rajapur Saraiya which is
about 35 kms away from Faizabad. On page 27-28 he did not
deny the construction of the building by demolition of the then
temple by Babar.
- i i r l i i - -i l - l -i n
- l i ni s -l i i -
l i , n i| i n -il- ri ln-i r| i
i i ni r l rzs - i - l i
l ni r l -i i l i | i - - -|i| i , lri
l-i i i| s i li ii| - r r| r| ni ni r
l r l-i ii rzs - r i ii| r ri nn r l
rzs i liln i - i -i ri n| r| ri | -| i |
i ; l -i i r| l i i i , ni i
s l n l i i i | ( z/zs)
I have so heard that after demolishing the temple
existing at the Ramjanmbhumi, Babar attempted to
shape it like a mosque, but even today all the evidences of
Janmbhumi exist there. It is so heard that in the year
1528, Babar had raised this construction after
demolishing the temple. There was one Mir Baqi in the
period of Babar, who had carried out some construction. I
can not tell correctly that this construction was carried out
in the year 1528. It is wrong to say that from the year 1528,
2147
Namaz was regularly offered at the disputed structure. Mir
Baqi had not carried out any construction, and instead
had only carried out minor modification after
destruction. (E.T.C.)
2082. About belief he said:
- | | i-ii r nii li i| r l liln -i r|
i- | | -il- r n ; i - iil- -ni - li
- li r, r| r| i r| ( s)
It is my faith as well as belief that the disputed site
is the birth place of Lord Rama, but I have not read so in
the religious books studied by me. (E.T.C.)
2083. He subsequently admitted to have visited the disputed
place twice before its attachment.
i i i - liln i - | ni ii ni ri
orso l-- n i ii| ( o)
On both the occasions, when I had been to the
disputed structure prior to the attachment, I had stayed
there for 10-15-30 minutes." (E.T.C.)
| - |ii ii | iii c - r ri r
l - rii - ri i| l| - -i i -i r|
ii r| i i ni- r r l - ri l -i n r ni ,
ni | i ni | sro l i l n l - -
n| i i i ni i r | ; r| n| i - i -
- r ri r l - l | - -i i -i n
r| i i r | ( r)
In para 16 of the affidavit of my examination-in-
chief, (I) have mentioned that in my senses, I have never
seen any Muslim offer Namaz at that place. By seen I
mean that I would see only when I will be present there. I
have stated to have been to the disputed site on three
occasions prior to the year 1950. It is in respect of these
2148
very three occasions that I have stated that I have not
seen any Muslim offer Namaz.(E.T.C.)
2084. DW 3/16, Shiv Bheekh Singh:
i--i l- - l, ri - i ini ii, ri
i- i | - ln li-i i|| ........ ri n| n i i||( s)
The idol of Ramlala existed in the Ramjanmbhumi
temple, where I used to go to have Darshan (offering of
prayer by sight). ...... There were three caves. (E.T.C.)
liln -i ri i-i li-i r i
i--il- ;l ri ini r i l r| i- | i -
r i ii| ;l r -ii r n l -ii ini r| lr i i i
li r l ; -i i i -i r| -i i | i l n
ri n| r | . . . . . . . . liln l i i--il- - l|
- -i i in in i -i n i| r| ii| ( o)
The disputed site where Ramlala exists, is called
Ramjanmbhumi because Lord Rama was born there. This
is why this place is considered to be very sacred by the
Hindus. It is the belief of Hindus that only by Darshan of
this place, Moksha (salvation) is obtained. . . . . . . . . . I
never saw any Muslim either visit or offer Namaz at the
disputed site or the Ramjanmbhumi. (E.T.C.)
- i ni i i i s l i -| - r |
i i - i ni rrr l i -| - | | ri ni |
. . . . - liii ni| ii ini ii i| ii
; ini ii| . . . . . . . . .- z i l so - -;
ni ii, ii ni - r| ri r | . . . . . s i n -
-; - i;l nii nii i iii - -ii|
i n ii| ( z)
My village is 48 kilometres away from Faizabad
Chowk. My village would be 54-55 kilometres from
Ayodhya. . . . . . . Mostly I went to Ayodhya on bullock-cart
2149
and sometimes by Tonga. . . . . . . . . . . . In the year 1940, I
had gone to Bombay for 2-4 years, and except for that
period I have always remained in my village........I
temporarily worked in Bombay for 3-4 years in factories of
cycle and playing cards. (E.T.C.)
- ni i i -i i n zzr i ni
ri + ni| ( )
Till today, I may have gone to Ayodhya from my
village on approximately 24-25 occasions. (E.T.C.)
- r r| -ini r l rzs - i| -l- | i||
- ri l rzs i i| i| i| -l- r| | i||
( r)
I do not accept that Babri mosque was built in the
year 1528. Stated on his own that Babri mosque was not
built either in the year 1528 or on any other occasion.
(E.T.C.)
;i - iii i| r| ni n r l r -ln
i| n|| n ; - ,ii nii ii -i r| r | ( s)
Even my forefathers can not tell as to when this idol
had been placed. Hence, it is not possible for me to tell.
(E.T.C.)
r ri nn r l zs l- ss i liln i
- -ln i i| n| | ( s)
It is wrong to say that idols had been placed in the
disputed structure on 23
rd
December, 1949.(E.T.C.)
- rii iii, n i--i l- l - l|
- -i i iin- - r| ii r | ( s)
Since I attained maturity, I have never seen any
Muslim visit the Ramjanmbhumi premises.(E.T.C.)
-n i--i l- l - - iiii -i i
r - ln i li-i i| | ( zo)
2150
Answer:- The idols existed at the Ramjanmbhumi
premises even before the period of my forefathers.(E.T.C.)
- ii i i i - li li s i
ini r | | i - i i i i zczs
i i i ri + ni | i i - i--|, in i, l -i nii
iln li -i i - ri n r | ;- i - i -
lni ini ii| ( zz)
I go to Faizabad- Ayodhya, a maximum of 3-4 times
a year. In my entire life, I may have been to Faizabad-
Ayodhya on 26-28 occasions. The four fairs of
Ramnavami, Sawan Jhula, Parikrama and Kartik Purnima
are held at Ayodhya. Out of these, I used to go to two fairs
every year. (E.T.C.)
liln i i--i l- -l ii| r - nii i| li
r| r| r| ( zs)
The disputed structure was Ramjanmbhumi temple.
This is being claimed by me and the whole world. (E.T.C.)
- i - r ini| i l ii -r
ri i ~i li r r ~ i nn| ,i-ii ii
-- l n i | i ri i i i r l i r |
( z/zs)
My earlier statement regarding the Dashrath
palace being near the Kotwali, was made inadvertently on
account of fading memory in old age. (E.T.C.)
i- -i r iii li r , ;l i - i ri
ini r | . . . . .- ri l - i ; i - i | i ;
i ni i i i l n r | ( so)
Lord Rama had taken human form, and due to this
His birth is claimed. . . . . Stated on his own that my
statement in this behalf is based only on
hearsay.(E.T.C.)
2151
i--i l- -l - l ni ri r r r| n| n - ii
i r li li r | ( s)
The Ramjanmbhumi temple according to me, is the
same three dome structure about which is the dispute.
(E.T.C.)
- i l-- - - r| -l - i
l l-ni ii i l i| ii n n li li ini
ii| . . . . . . . n| n i i l- - ln i i| i| ri
in| l-- ii i l r| l-ni ii| . . . . . .
.l -i |i i| |i rin| i|| liln l -
n i- ni ii| liln l - l-in i- n | l -i
r| rin| i|| ( sr)
On occasion of fair, less than five minutes were
afforded to have Darshan in temple, because the crowd
was immediately pushed out. . . . . . Not more than 2-3
minutes were afforded for Darshan in the three dome
structure, where the idols existed. . . . . . . The
circumambulation was performed inside the grill wall.
Ramchabutara was to the east of the disputed structure.
The Ramchabutara situated inside the disputed structure,
was not circumambulated. (E.T.C.)
l i l n l - | ni i ; i - -i i r|
i i | i i ~i | i s- -| -i i i | s- -|
-i | i| l -i r| rin| i|| ( sr)
There was no place called Sita Rasoi in the
disputed premises. There was the Chhathi (the sixth
day after birth) worship place of Kaushalya ji. The
Chhathi worship place was also not circumambulated.
(E.T.C.)
n| n - i liln i - i--i ii i + i |
in, i ii i | i| n - n i i| - -ini ii~i
2152
i-i i ni - l -| i|| . . . . . .ii~i | | - ln ||
n - si-| | n i i|| ( sc)
In the three dome disputed structure, Rama-
Laxaman were at some elevation. Bharat, Shatrughan were
a bit lower. There was cave on side wherein mother
Kaushalya had Ramlala in her laps. . . . . .The idol of
Kaushalya ji was inside the cave adjacent to the steps.
(E.T.C.)
- r| i n| n - i i - ni ii n - n
-| | r| ni ii| n i i i n | i - i
n - i i ri - i l i i i | ( ss)
When I had first gone inside the three dome
structure, I had not been exactly under the mid dome. I had
the Darshan from the gate in front of the lower side of
the dome. (E.T.C.)
- i - szc - r i i i | . . . . . - r|
i liln -i ni ii| n - ss/ss ri rini|
. . . . . - li zszoo i r i l i r
l - ni i i zzr i ni ri ni |
- i r i l i l n i l n n | l i i
r | . . . . . ii| ri l - i i i - lii in i i
ni| i| i| i i - ni n i i| r| r i l -
l| i i i i i| ni r | ( zs)
I was born in the year 1926. . . . . . . When I first
went to the disputed site, it was probably the year 1937-38.
. . . . . On 24.08.2004, I stated at page 14 that 'I must have
been to Ayodhya from my village on about 24-25
occasions'. This statement of mine is for the period upto
the demolition of the disputed structure. . . . . The witness
stated that mostly I went to Ayodhya twice a year.
Sometimes I went once a year, but it never so happened
2153
that I did not go to Ayodhya even once a year. (E.T.C.)
- i ; l ni n | i i i i
i i ri + ni | - r| i liln -i sss - ni
ii n i| ri ii i | i ii ii| ( /)
I must have visited along with others by cycle, on
about 20 occasions. When I first went to the disputed site
in the year 1938, then I had seen Bhaskar Das over there.
(E.T.C.)
2085. DW 3/17, Mata Badal Tiwari, born in 1920, has
stated visiting Ramjanm Bhumi at the age of 12 years. Ayodhya
was about 18-19 kos from his place of residence. About the
construction of the disputed building by Babar on page 30-31 he
said:
ii | i| -l- i - - r| ini r - n r
ii| r| r l i| -l- | i|| - r r| ni ni
r l i| -l- i | i| ii ii i r| | r ri
ni r l rzs - -| i | i | -l -
i ; ri | ( so)
I do not know about Ayodhyas Babri mosque. I
have no knowledge about the date of construction of the
Babri mosque. I can not tell whether the Babri mosque had
been built by Mir Baqi or not. It may be that Mir Baqi
had built the Babri mosque in the year 1528. (E.T.C.)
2086. Then on page 35 he took a different stand:
r ri nn r l -|i| rzs - -l- i
l-i i ii ii i i ;- -i rin| r|| ( sr)
It is wrong to say that Mir Baqi had built the
mosque in the year 1528 and that Namaz was regularly
offered there. (E.T.C.)
2087. Again about the Babari mosque on page 35 and 53 he
made contradictory statement.
2154
- r ini r| r| r l i| -l- ri r|( sr)
I just do not know where is Babri mosque situated."
(E.T.C.)
- i| -l- i i- i r |( rs)
I have heard the name of Babri mosque. (E.T.C.)
2088. Fallacy of his statement is evident from what he has
said on page 56, 57, 61 and 62.
- ii n i ~ i li r| r ni ss -
r i ii| - liln i i s lr-i ilnn -n li
ni ii| n -i i r n i ni iln r ii ii| ilnn -n
i lr i- i| i|( r/)
I have mentioned about the riot of Ayodhya. This
riot occurred in the year 1934. Some part of the disputed
structure had been damaged at that time. Those domes
were damaged by many people. The damagers were
followers of Hindu religion.(E.T.C.)
; i-i - i n - ilnn -n r i ii, ii ni i
r| , r - n i r| r | .......... ss - i n -
i l nn -n r i i i , | i ; ---n ssz
n r| r ; i | | ss - n| i n -i i i l nn -n
l i ni i i | | i i n - i l n ni i i | n|i
n -i - iiiii i i r i ii|( ccz)
I do not remember whether the dome damaged in
this incident, was repaired or not. ........ The dome
damaged in the year 1934, was not repaired till the year
1992. All the three domes had been damaged in the year
1934. The mid dome had completely collapsed. All three
domes were damaged slightly."(E.T.C.)
2089. DW 3/18, Mahant Banshidhar Das @ Uriya Baba,
born in 1905, came to Ayodhya in 1930 and since then is
continuously visiting the disputed place and worshipping the
2155
idols in the inner courtyard under three dome structure as also
on Ram Chabutara etc. In his cross-examination he has also
made statement which demolishes the case of Nirmohi Akhara
about the existence of temple since time immemorial and no
construction or demolition by Babar in 1528 AD or his agent, no
riot or damage to the building in 1934 and no incident on 22/23
December, 1949. On page 34 he states to have come to Ayodhya
at the age of 28 which takes to the period of his coming to
Ayodhya from 1930 to 1933. He admits of his weak memory.
ii| nii l l i i ri i i - i
-l -n i - r| ni r | ( )
The witness stated Due to advanced age my
mind does not work.(E.T.C)
i l - , l n r i - i l -i n i i i -
r| ni r | ( ro)
Since I am an old man, my mind does not work
much.(E.T.C)
2090. On page 59 he states that all the temples of Ayodhya
were demolished during the reign of Mohammad Tughlaq and in
1325 the temple of the disputed place was also demolished by
him.
-ir-- n n i iii szo ; o i r i ii nii
szr ; o - l i l n -i l -i n - l i l ni i ni
i i | (r in ii| ,ii i; n| i| i i
nii)| -i r-- n n ,ii liln -i - l i lni
i i ; -ii - l, i-i -i-| li ni
ii ii| ; -l i ni l iiir n n - -
ii ii| l iiir n n , -i r-- iir n n i i ii|
- ri l - l l ni i i r n - n r
l ni i ri | - l l ni i i i i i
l -i i soo i i i r i | ( rs)
2156
The tenure of Mohammad Tughlaq commenced in
1320 and the temple situated on the disputed site was
demolished in 1325. (The witness stated this thing after
going through a diary which he had brought along). After
the mosque situated at the disputed site had been
demolished by Mohammad Tughlaq, Anantanand, disciple
of Ramanand Swami, got a temple built on that place.
Anantanand got this temple built in the time of Firoz Shah
Tughlaq. Firoz Shah Tughlaq was the son of Mohammad
Shah Tughlaq. (Stated on his own) The temple after
having been demolished had remained as such for a
considerable time. The temple after having been
demolished was reconstructed after 30-40 years.(E.T.C)
i - l ni | liln -i ii ii
li iir n n lni li| i -i-| ii
| ri -l ii| ii | ,ii i n - l -
i-i | r| i -i | - - i i l n
-| i | ; - l i l ni i | - ri l i -|
i | i ; i - i; l i r| li ii, -| i | -
lnii ii| -| i| -l i lni -l- r| ii|
; -ii i -l ln i | i si li|
i-i | li ni li liln -i l -l
ii| nili | liln -i - l i - - r|
ii ii| i - l nili ii ii r| - l c l-
ssz i lni li ni ii| ( co)
Firoz Shah Tughlaq again ensured demolition of
the temple which Anantanand Ji had got built on the
disputed site. After that Swami Anubhavanand Ji got a
temple built there. Shyamanand stayed in the temple built
by Anubhavanand Ji. In the time of Shyamanand Ji,
Babur's commander Mir Baqi got this temple
2157
demolished. (Stated on his own) Babur had not given any
directions in this respect; Mir Baqi had himself got it
demolished. After demolishing the temple Mir Baqi had not
got a mosque built there. In the wake of demolition of the
temple he had left this place as it was. Shyamanand's
disciple Govind Das again got a temple built on the
disputed site. Govind Das Ji had got the temple built in the
disputed site only on the time of Babur. That very temple
which Govind Das had got built, was demolished on 6
th
December, 1992.(E.T.C)
sso i - -ii liln -i i i i
i -i li ii| - -ii ,ii ri i -i - - -
ss - r i ii| ili | i -i liln -i n r i,
i- i n i ii| r r| i- ii, l zz,zs l-
ss | i-i i li - zs l- ss i lii| i||
; i- i - s| nr ini ii| ( c)
Five years after 1930, Muslims attacked the
disputed site. The first invasion of Muslims had taken place
in my time, that is, in 1934. The last invasion on the
disputed site was at a time when Ram Dev Dubey was an
inspector. It was the same Ram Dev Dubey who had on 23
rd
December, 1949 got a report lodged as per the incident of
22
nd
-23
rd
December, 1949. I was well acquainted with this
Ram Dev Dubey.(E.T.C)
i-nlni r r l ss - -l - i i ri l r ;
i | , lr ii i - i l| ili sr ri
i|, i li| ( ss)
Reality is that Hindu saints got repaired the
damage, caused to the mosque in 1934, by themselves
collecting subscription which had aggregated to Rs.
35,000.(E.T.C)
2158
l sso l i l n -i - -nl
ni -i | i n| r| ri , ni i - - n
i i | r| r | l -| l-iln ii sso ss
| liln -i -i | in| r| ri, ni ;| i|
ii| - n r| r| ( sss)
If namaz may have regularly been offered on the
disputed site prior to 1930, I do not have the knowledge
about the same. If namaz may have been offered on the
disputed site between 1930 to 1949 in my absence, I also
do not have the knowledge about the same.(E.T.C)
r i| ri nn r l zz l- ss n liln
i l| i| iin - i; i| - ln r| i| i|| ( sc)
It also incorrect to say that no idol had been placed
in any part of the disputed building up to 22
nd
December,
1949.(E.T.C)
2091. DW 3/19, Ram Milan Singh has sought to prove the
existence of idols in the disputed building, i.e., under the Central
Dome in the inner courtyard and also on Ram Chabutara which
he had been visiting for Darshan and worship since 1940 till
1949. According to the age given in his affidavit, year of birth
comes to 1929. He is resident of Mauja Haliyapur, Pargana
Isauli, Tahsil Musafirkhana, District Sultanpur. He claims to
have mainly visited in the three fairs held at Ayodhya. First of
all with respect to the averments contained in his affidavit which
he has filed under Order 18 Rule 4 on page 70 he says:
; i i i n i i l n r| ;
i - ni n r | - |ii ii r-nii
- i r| i ii| . . . .ii r-nii -
ii, i+ - li r | r ii i+ - -i; r i
ii i r|, r - r| ni ni| - ; ii i i
n i li ni ii, n - i i - | ir i
2159
ii| ri r nii ii l - i ii i - - ni
ri r | i i i - - n i ri i -
r| i i | ( /o)
The person having prepared this affidavit, can
only tell about this. I had not completely read the affidavit
of examination-in-chief before signing it. . . . . . I had put
my signature on the affidavit at the High Court, Lucknow. I
cannot tell whether this affidavit had been typed out at
Lucknow or not. At the time when the draft of this affidavit
of mine had been prepared, I was at the place of my
counsel in Ayodhya. He had told that I am preparing the
draft of your affidavit. I had not seen the contents of the
draft of the affidavit, after it was prepared. (E.T.C)
2092. This itself makes his entire deposition doubtful and
unreliable. He also admits of having never entered three dome
disputed structure prior to 1986.
s/z so, s, sz - - liln -i
ini ii, ni n - | ni ii| ri l - so,
s sz - n - | i i i n - r| ni
i i | ( s)
Prior to the year 1972, whenever I used to go to the
disputed site in the years 1940, 1941, 1942, I had gone
beneath the dome. Again stated that I had not gone to the
place beneath the dome in the years 1940, 1941 and
1942. (E.T.C)
r ri r| r l n| n - i l i l n i
- ssc i | r| ni | ( rc)
It is correct to say that I had never been inside the
three domed disputed structure before the year
1986.(E.T.C)
2093. Distance of disputed site from the witness's residence
2160
is about 54 Kms. The witness says that in 1940, 1941 and 1942
he came to Ayodhya on a bullock-cart and thereafter on foot till
1948 and then by bus in 1948 and onwards. He has however
admitted his date of birth on page 67 as 15.01.1930.
2094. DW 3/20, Mahant Rajaram Chandracharya, aged
about 76 years in 2004, must have born in the year 1930, came
to Ayodhya in 1944 at the age of 14 years. He claims to become
pupil of Mahant Raghunath Das who was Mahant of Nirmohi
Akhara at that time. He was assigned duties to perform at
Janambhumi Temple where he worked from 1943 to 1949 and
claim continuous worship of the idols placed in the internal part
of the disputed building, i.e., under the three domed structure.
Very clearly he has given topography of various structures in
regard to the disputed site which is almost consistent with
various maps prepared by different Commissioners appointed by
the Civil Judge in different proceedings including that of
Commissioners map prepared in Suit 1885. The following part
of his statement are relevant for our purposes.
- ; - - - l-i r| iii nii ii -
i ri r | ( )
I am testifying in this case as a 'Panch' of the
Nirmohi Akhara and as a party.(E.T.C)
ss - - i- i ii ii ii, n ri
i| -l- i l-n- r| r| ii| ss - liln -i
i; -l- r| i|, i l - ri -ln i rin| i|| -
i| -l- i i- i r | l i l n i i | -l - r |
ri l r i | -l - r| r , r - l r |
liln i - n| n - r| r -l- r| r| r ini i- |
-il- r| ss - - i- i i i ni ii, n -
i| -l- i| r| r| | liln i - - i| -i ri n r
r| ii| - ri i rin i| r | - ri l ri i
2161
ri n| r, ri -i ri i r| r| - rini| ss -
- i- i ii ni ii, n liln -i - -l-
r| ii ii, -l ii ii| - ri l ri i i rin|
i|| liln i - n| n - r i| ( r)
In 1943, when I first came to Ayodhya, the Babri
mosque was not at all existing there. There was no mosque
on the disputed site in 1943, because there used to be
worship of idols over there. I have heard the name of the
Babri mosque. The disputed building is the Babri
mosque. (Again stated) It is not the Babri mosque; it is a
temple. The disputed building has three domes. It is not a
mosque. It is the birthplace of Lord Rama. In 1943, when I
first visited Ayodhya I did not see the Babri mosque at all. I
never saw namaz being offered in the disputed building. I
have seen Pooja being performed there. (Stated on his
own) No question arises of offering namaz at a place where
Pooja is performed. In 1943, when I first visited Ayodhya, I
saw a temple, not a mosque, on the disputed site. (Stated on
his own) There used to be Pooja-Sewa (offering worship
and rendering service) over there. Three domes were built
in the disputed building.(E.T.C)
ii - - i nin ss ii n ri r | ss
ssro n liln i - -i r| rin| i|, l~
i rin| i|| ( r)
I guess to have resided at Ayodhya for about 8-9
years. Namaz was not offered at the disputed building from
1943 to 1949-50; rather, Pooja (worship) was
performed.(E.T.C)
- r i r l i rzs - -l
i ni -l - i ; i | i | i li ii
i l ni i ri r | ( rc)
2162
I have heard that Babur had got the mosque built
by breaking down the temple in 1528, and the dispute
over that very construction has been continuing, taking the
shape of struggle.(E.T.C)
liln i -i - r ri i ni r l r
-l ni rzs - -l - i ; n; | r ri
n n r l liln -i i -i rin| r| r | ( r/)
It is said about the disputed building that
demolishing this temple the mosque was constructed in
1528. It is incorrect to say that namaz has regularly been
offered on the disputed site.(E.T.C)
l i l n i n| i n - | i i i n
ni n r i i | i ri n- ini i-i r , r
si-i -ii r| ni n r - i ni- r r l ri l| i -
ri ni r, | -ii i ni n r rn r | ( /z)
The part beneath the three domes of the disputed
building was 'Garbh-Grih' (sanctum sanctorum). The
place where Lord Ramalala rests under a tent today, is a
small place. By 'Garbh-Grih' I mean that a place where
someone is born, is called 'Garbh-Grih'. (E.T.C)
- r i li ii l ss sr n - n -
i i - rni ii| r - i ii iiii-
ii, i l - liln -i - n li - ini
ii| . . . . .r n li liln i l | -n| |i
l-i r i ii| ( sz)
I had given a statement yesterday that I resided in
the domed building from 1943 to 1951. By 'residing' I mean
'offering Pooja-Paath' and 'taking rest'; I used to go to
Sant Niwas built on the disputed site to take sleep. . . . . . .
This Sant Niwas abutted on the northern wall of the
disputed building premises.(E.T.C)
2163
i liln i c l- ssz i ni lni li ni
ii, r i - ni - nil roo i ii ii ii| r
i, i-- l ii, i i iii r ii i l
i lln n li ii, l ri l lln n | ilii
|| n i i i i i r l l - n i i |
i i i i - i | ni i r ; i | ni i
l -i i r i i i | - r i ii r l ll- n i i
i iii - ni i i l -i i | ilii |
n; , l- ni r| l-| i r ii - ni
i r ii i i| ri r| ( ss)
The disputed building, demolished on 6
th
December,
1992, was, as per my knowledge, older than 500 years.
That building was Rama Temple, which existed from before
the reign of Babur and which Babur changed, (further
stated) tried to change. The said building was built from
before the tenure of Babur. During the reign of Babur
that building had been damaged and reconstructed. I
mean to say that during the reign of Babur attempts were
made for reconstruction after damaging the earlier built
building. He had not succeeded in his attempt and the
situation had turned into a struggle, which is continuing
even today.(E.T.C)
i -i - -l ni liln i ii ni
ii, n s - /o i i in -i n ri n i i ri n, ;i
- n ni r|, i l r i -| -i ii, |-n| iiii ii|
( oo)
I do not know whether 70 out of 84 pillars may have
been picked up by people at the time when the disputed
building was constructed by demolishing the temple in the
time of Babur or what happened to such pillars, because
there were of Kasauti stone, costly stone.(E.T.C)
2164
i i - ln i liln -i i i l-n| r , r|
- ln i r, i ii i-i | ,ii -nii | i
i| -ln i - r| ii i-i | r -ln i i i -i
- -nii n i| nili | ii i-i
ni li i | nili | - ln i i i
| -ii -iiln li| ( ooz)
The idols which are now seen on the disputed site,
are among the idols which had been taken along by Baba
Shyamanand Ji to Uttarakhand. Baba Shyamanand Ji had
gone to Uttarakhand at the time of Babur, taking along
those idols. Govind Das Ji was the body guard and disciple
of Shyamanand. Govind Das Ji took the idols along and
reinstalled them on that very place.(E.T.C)
i- ni | -iii i| | - r ; , ii nil
i | -ln i | -iii | -ii |, ri r - ln i
r i|| r i iii i ili | - ii| ; i- n
i| i-i, in |, -i |, i | i li~i | |
- ln i nil i lii - lr| lii ,ii -iiln | n||
li i i- i r| r | ( os)
Ram Chabutra was also built at that very time when
Govind Das Ji had reinstalled the idols on that very place
where they existed earlier. It was the concluding period of
Babur's tenure. Idols of Ramlala, Bharat Ji, Lakshman Ji,
Shtrughn Ji and Kaushalya Ji were installed on this Ram
Chabutra, too, by certain disciples of Govind Das. I do not
remember the names of those disciples.(E.T.C)
ss - i ni r i i i i | -l -
i i r i i i i l r i - ni
i | -l - | -- -n | n; |
( oc)
Damage was caused to the Babri mosque due to
2165
the riot which had broken out in 1934. After that tax was
imposed on Hindus and the mosque was repaired from
that very fund. (E.T.C)
- liln -ii ss - ii ii i ni| -
ni l i | i i| - ri ii ii| n |ln
r, ri i| r | | - - nin sro - r ; | |
i | i nil i | - ri i| i |
- - i i| - i n| ( zos)
I came to the disputed site in 1943 and since then I
saw Govind Das Ji as a priest there. As long as he was
alive, he was priest there. He died in around 1950. At the
time of Govind Das Ji, Sri Baldev Das Ji was assistant
priest. After the former's death the latter began to work as
chief priest.(E.T.C)
NOTE: This statement shows that during this period of 1943
to 1950 Mahant Bhaskar Das was not there as Pujari at the
disputed site though it has been so claimed by other witnesses
and that stand contradicted.
2095. Sri Jilani, learned counsel for plaintiffs (Suit-4) has
taken great pains in placing before us the apparent contradiction
and incorrectness in the statement of these witnesses at several
places and in particular in recognising places, topography,
various structures etc. in the photographs which are part of
record, some of which were obtained by Sri Bashir Ahmad,
Civil Courts Commissioner appointed in 1950 and most of
them were prepared by the State Archaeological Survey through
its Director, Dr. Rakesh Tiwari in 1990 pursuant to an order
passed by this Court on 10.01.1990 which reads as under:
"Sunni Central Waqf Board has filed this application
in Suit No. 4 of 1989 for:
I- permitting and authorising the plaintiff or its
2166
representatives to enter upon the property in
suit with a photographer and others to take the
photographs of the building and the
surrounding area;
II- taking measurements of the buildings and its
boundaries;
III- permitting a video tape of the same for being
placed as evidence in Court and
IV- such other direction as the Court deems fit and
proper.
Another application has been moved by defendant
no. 2 (Paramhans Ram Chandra Das) purporting to be
under Order XXXIX Rule 7 of the Code of Civil Procedure
through Sri Tilhari, Advocate, in Suit No. 4 of 1989, and
the permission sought for is the same as in the application
mentioned above.
A third application has also been filed in Suit No. 2
of 1989 by the defendant no. 3 of the said suit for
appointing a survey commissioner for preparing a report in
accordance with the map and Abadi Khasra (Annexures I
and II) filed along with this application.
Sri Abdul Mannan, counsel appearing for the
plaintiff in Suit No. 4 of 1989, referred to an application
filed on its behalf in the Court below for appointment of a
survey commissioner.
The last prayer made was contested on the ground
that as the application filed in the trial court stood
disposed of the prayer made by Sri Abdul Mannan could
not be acceded to. This submission is not correct. The
application was not rejected. It was kept in abeyance
2167
directing that an order for survey commissioner would be
made after final hearing. Since we are of the opinion that a
survey commissioner be appointed at this stage, therefore,
we direct that the Registrar/Secretary of the Board of
Revenue to appoint any officer, not below the rank of
P.C.S. Officer, having knowledge of survey work, to survey
the site and to report the location of the plots. The survey
commissioner to be appointed would take assistance from
the municipal records and such other records which he
considers to be useful for the same purpose. The
commissioner would give notices of the date, on which he
would like to survey, to the Sunni Central Waqf Board and
the defendants nos. 2 and 13, namely, Paramhans Ram
Chandra Das and Mahant Dharam Das, in Suit No. 4 of
1989. Since we are of the opinion that the photographs of
mosque and temple, including all the pillars, may also be
helpful for deciding the controversy in this suit, as well
as other connected ones, we direct that the photographs
of the mosque, temple, including pillars be taken and
prepared.
The question as to who would be fit for purposes of
carrying out the directions of the Court was considered by
us at length. In the circumstances, we consider that the
Director, U.P. Archaeological Department, be asked to
do the same. He would also prepare carbon dating of the
pillars, mosque and temple. For purposes that the
directions given by us are effectively complied with and no
unnecessary rush gets collected, we consider that out of the
two sides, that is, Sunni Central Waqf Board and
defendants 2 and 13 would be entitled to take not more
2168
than seven persons with themselves, one of them can be a
photographer.
So far as defendant no. 3 is concerned, we consider,
for purposes of settlement of controversy involved in the
suit, its interest is not adverse to that of the defendants nos.
2 and 13, therefore, it can take with itself three persons.
The Director, Archaeological Department, would
also get video cassettes prepared of the mosque, temple
and pillars. The district administration will make
arrangement for security.
The Advocate General had made a statement in the
Court that the expenses would be borne by the State of all
the proceedings, such as the present. Consequently, we
direct that for making the survey commission, taking
photographs, video cassettes etc. the expenses would be
borne by the State itself.
The applications are decided accordingly."
(emphasis added)
2096. Dr. Rakesh Tiwari, OPW 14 has proved the aforesaid
photographs and also the video recording made of the disputed
building. He (Sri Jilani) says, since the witnesses have failed to
identify most of the photographs and in fact made apparently
wrong statements, showing that they never visited the disputed
place, their statements are basically wrong and should be
rejected.
2097. It is no doubt true that almost all the witnesses have
failed to identify correctly location, site or the objects shown in
one or the other of the above photographs, but then we have to
consider certain well settled principles in the matter of oral
evidence. Memory of a man may be very good or may not be,
2169
depending upon the individual. Some people's memory is so
sharp that they can continue the things in their mind for several
years, decades and may tell very accurately the things happened
20, 30 or 40 years back but this is not a normal phenomena.
Normal period of memory of human being is not so long. All the
witnesses who have appeared before us have deposed their
statements after more than 50 years of the incident. To expect
meticulous details, these witnesses can recollect, what transpired
or what they observed more than 50 years ago and that too when
they must not have any idea that at some point of time they will
have to depose statement in a Court of Law and, therefore, could
not watch everything very carefully and minutely, is too much.
Such lacking is quite normal. No one has a flashing computerise
memory. Such expectation and that too from those who are
simple rural folks, is too much. We have to consider the overall
credibility of the statement of the witnesses as that could be of
an ordinary human being.
2098. In fact similar kind of error has occurred virtually with
all the witnesses of fact who have deposed their statements
whether on behalf of plaintiffs or defendants. It is for this
reason, we have not delved into the statements of all the
witnesses of facts with respect to the events of 1950 and earlier
thereto by looking into contradiction of each line, each word and
each page, i.e., on every aspect. We have tried to find out truth
in the statements of witnesses by judging their credibility by
narrowing down the facts which they intend to prove in their
examination-in-chief and thereafter looking to the general
conduct, attitude and some other circumstantial state of affairs
as discerned from the statement of the witnesses in cross-
examinations. Wherever oral evidence is corroborated with the
2170
documentary evidence than obviously one has to take more
reliable one than the one which is totally based on the statement
of a person which is slippery and appears to be tutored. For a
particular fact, if one gives statement of a fact which occurred
50 and more years back with minute details but not able to
recollect or tell the Court about such event the dates of which
are much more recent, normally very important for a mans life,
for example the date or year of birth of children, marriage etc.
which must be known by him, then his statement becomes
suspicious and needs to be seen with care.
2099. So far as claim of Nirmohi Akhara is concerned that
nothing had happens on 22/23 December, 1949 and idols existed
under the central dome in the inner courtyard much prior thereto
is not only unbelievable and incorrect but in fact many of their
own witnesses have proved their case wrong. Many of the
witnesses appeared on behalf of Nirmohi Akhara have made
statement which is wholly inconsistent to the basic pleadings of
Nirmohi Akhara, plaint and replication in Suit-3 and in written
statement in Suit-4 and 5.
2100. Though twenty witnesses have been produced on
behalf of Nirmohi Akhara and it is strange but unfortunate that
we find almost all of them uncreditworthy so far as this aspect
of the matter is concerned that the idols in dispute were placed
inside the building under central dome long back and much
before 22
nd
December, 1949 and nothing happened on that day.
It is well settled that the quantity of evidence does not matter
but it is the quality of evidence which matters.
2101. On the point where there is some variance between
pleadings and proof, in Ananda Chnadra Chakrabarti vs.
Broja Lal Singha (supra), the Court while taking the view that
2171
every variance is not fatal has held:
The rule that the pleading and proof must
correspond is intended to serve a double purpose; first, to
apprise the defendant distinctly and specifically of the case
he is called upon to answer; and, secondly, to preserve an
accurate record of the cause of action as a protection
against a second proceeding upon the same allegations.
The test thus is, whether the defendant will be taken by
surprise if relief is granted on the facts established by the
evidence, or, as has sometimes been said, a variance
between a pleading and what is proved is immaterial
unless it hampers a defence or unless it relates to an
integral part of the cause of action.
2102. In Sewkissendas Bhatter & others Vs. Dominion of
India AIR 1957 Cal. 617 and Basant Kumar Roy Vs.
Secretary of State for India & others AIR 1917 PC 18, it was
held that where a matter requires consideration of facts, a new
fact ought not to be allowed unless supported by pleadings since
its is only the matters of law which can be allowed to be raised
and not those where factual investigation is required.
2103. Extending the diluted approach as observed by the
Culcutta High Court in Ananda Chandra Chakrabarti vs.
Broja Lal Singha (supra) yet we find that it is really
unfortunate that even this approach may not help the plaintiffs
(Suit-3) for the reason that the variance in pleadings and proof is
so inconsistent that virtually it amounts to a mutually destructive
plea and when the variance is so wide, it cannot but fatal to the
case of the plaintiffs (Suit-3). It demolishes their case virtually
in its entirety for the purpose of their claim in respect to the
premises inside the courtyard.
2172
2104. We have no hesitation in holding and recording our
finding that under the central dome of the disputed building,
idols were kept in the night of 22
nd
/23
rd
December, 1949.
2105. Now the question about the consecration of the said
idols and whether the idols were kept after observing the
procedure meant for consecration, and, if the idols were same as
were kept on Ram Chabutara up to 22
nd
December, 1949,
whether on shifting, fresh exercise of consecration was required
and its effect etc., if any.
2106. The crucial aspect would be whether the idols kept
under the central dome in the night of 22
nd
/23
rd
December, 1949
were placed in such a manner that the people who visit to
worship believe, that there exists a divine spirit, it is a deity
conceived of as a living being, capable of providing spiritual
salvation and it is a deity having supreme divine powers. As we
have discussed, an idol itself is not worshipped but it is a
particular image wherein on consecration it is believed by the
Hindus that it has attained such divinity and supreme power so
as to provide human salvation and fulfillment of wishes of the
beneficiary. The idol is only a material symbol and embodiment
of pious purpose though the real worship is that of a supreme
power. In T.R.K. Ramaswami Servai (supra) as we have
already observed the test was not whether the installation of an
idol and the mode of its worship conform to any particular
school of Agama Sastras but if the public or that section of the
public who go for worship consider that there is a divine
presence in a particular place and by offering worship at that
place, they are likely to be the recipients of the bounty or
blessings of God then it is a temple, a deity capable of worship
and no further ceremonial right is required to be shown. This
2173
has been approved and affirmed by the Apex Court in Ram
Jankijee Deities (supra). None of the witnesses of plaintiffs
(Suit-4) have said that he was present at the time of such
placement. On the contrary, plaintiff no. 3 (Suit-5) , i.e., OPW 2
in his statement under Order X Rule 2 has clearly said that due
ceremonies were performed when the idols were transferred.
Paramhans Ramchandra Das also appeared in the witness box as
OPW 1 and has proved the state of affairs. His presence on the
site at the relevant time has not been doubted either by the
plaintiffs (Suit-4) or their witnesses or before us during the
course of arguments by learned counsels. Some other witnesses
have also proved this fact.
2107. It thus cannot be said that the idol(s) placed therein
were not properly consecrated. Atleast the status of deity cannot
be assailed by those who do not believe in idol worship since it
is to be seen from the angle of those who go and worship
thereat. They conform the test of being a juridical person in the
eyes of law.
2108. The plaintiffs (Suit-4) have failed to prove that idols
and objects of worship were placed inside the building as
described in plaint by letters ABCD read with the map appended
to the plaint in the night intervening 22
nd
/ 23
rd
December, 1949.
Consistent with the pleadings in plaint (Suit-4), the building
denoted by the area ABCD of the map appended to the plaint
(Suit-4), the idols and object of worship were existing even prior
to 22
nd
December 1949 at Ram Chabutara, in the outer
courtyard.
2109. We accordingly answer Issue No. 12 (Suit-4) in
negative. The effect of this answer shall be considered at the
relevant stage and need not be answered at this stage.
2174
2110. Issue No. 3 (a) Suit-5 is answered in affirmance i.e. in
favour of the plaintiffs (Suit-5). It is held that the idol(s) in
question was/were installed under central dome of the disputed
building (since demolished) in the earlier hours of 23
rd
December 1949 as alleged by the plaintiff in para 27 of the
plaint and clarified by the plaintiffs in the statement under Order
X Rule 2 C.P.C. The Issue No. 1 (suit-5) is, also, accordingly,
answered in its entirety, in affirmance. It is held that the
plaintiffs 1 and 2 both are juridical person. Issue No. 21 (Suit-5)
is answered in negative, i.e., against the defendants no. 4 and 5.
2111. Having said so, immediately Issue No. 21 (Suit-4)
need be considered as to whether the Suit is bad for non-joinder
of the said deity.
2112. An idol being a legal/juristic person, is a necessary
party in a suit where relief is sought against it. The idol
represents a Deity or a spiritual being whose existence is
recognized by Hindu Law. The Deity or spiritual being is
supposed to exist for ever. It cannot suppose to act like an
ordinary human being but has to be represented by someone.
Where a suit is filed seeking a relief against an idol without its
impleadment, the suit cannot be decreed against the idol and has
to be dismissed for the reason that decree, if any, is passed,
would not be binding upon the idol.
2113. In Mukundji Mahraj (supra), para 31 of the
judgment, the Court said :
"As the idol was not properly represented in the aforesaid
suits, the decrees were nullities as against the idol. In such
cases the principle laid down by the Privy Council in
Rashidunnisa Vs. Muhammad Ismail, ILR 31All 572 (PC)
(I) and by this Court in Dwarika Halwai v. Sitla Prasad,
2175
1940 All LJ 166: (AIR 1940 All 256) (J) applies. The
decree is not merely voidable, but null and void. The
decrees being nullities can be ignored and the plaintiff is
not under the necessity of having them set aside before
suing for possession."
2114. In B. Jangi Lal Vs. B. Panna Lal and another AIR
1957 Allahabad 743 a Division Bench of this Court said that an
idol can bring a suit to defend its interest and also has right to
defend itself in a suit instituted claiming a relief which impairs
the idols rights. Whether it is a necessary party or not depends
upon the facts and circumstances of each case. Where the
interest of the idol are directly affected or its own existence
seriously impaired appearance of idol before the Court is
necessary. However, while observing so in para 5, the Court
proceeded further to observe where it is found that idol must be
impleaded being a necessary party, it should do so.
2115. In our view this later observation in B. Jangi Lal
(supra) would require a little clarification. It is suffice if the
plaintiff is made known of the fact that idol being a juristic
personality, a necessary party. Wherever its interest is sought to
be impaired, no relief can be granted without impleading it.
Despite this aspect having been pointed out by the defendants in
suit, if no attempt is made by the plaintiff to implead the idol
and on the contrary this is defended by objecting to the issue,
the matter would have to be considered in a different manner
and if at the time of final adjudication the Court finds that the
suit was filed without impleading a necessary party and
continuing as such it would have to face the logical
consequences.
2116. In K. Manathunainatha Desikar Vs. Sundaralingam
2176
(supra) a Full Bench of the Madras High Court in para 20 of the
judgment observed:
"............The Deity, a juristic entity, is the proprietor who
never dies but labours under physical disability which
renders it necessary that its interests should be looked
after in perpetuity."
2117. In Jodhi Rai Vs. Basdeo Prasad and Ors. (supra) a
Full Bench of this Court held:
"...............An idol has been held to be a juristic person who
can hold property. Therefore, when a suit is brought in
respect of property held by an idol, it is the idol who is the
person bringing the suit or against whom the suit is
brought, the idol being the person beneficially interested in
the suit."
2118. The Court in Jodhi Rai (supra) however on merits
found that though the idol was impleaded through Manager but
it was not properly described. In these circumstances, the Court
held that the correction in the description could have been
permitted to the plaintiff and this by itself does not warrant
dismissal of suit since correction would not have the effect of
introducing third party, on record after expiry of period of
limitation. However where the necessary party has not been
impleaded within the period of limitation, the position may be
different.
2119. In Bimal Krishna Ghose and Ors. Vs. Shebaits of
Sree Sree Iswar Radha Ballav Jiu and Ors. AIR 1937 Cal 338
the Court referring to its earlier decision in Rabindra Nath Vs.
Chandi Charan AIR 1932 Cal 117 observed that in India, the
Crown is the constitutional protector of all infants and as the
Deity occupies in law the position of an infant, the Shebaits who
2177
represent the Deity are entitled to seek the assistance of the
Court in case of mismanagement or maladministration of the
deity's estate and to have a proper scheme for management
framed which would end the disputes amongst the guardians and
prevent the debutter estate from being wasted or ruined.
2120. In para 7 of the judgment the Court relied and referred
to the Privy Council decision in Kanhaya Lal Vs. Hamid Ali,
AIR 1933 PC 198 and observed :
"The Privy Council held that they could not deal with the
appeal in the absence of the idol whose interest arose
under the Wakf ..................."
2121. In Kasturi Vs. Iyyamperumal and Ors. 2005 (6) SCC
733 referring to Order I Rule 10 as to who would be the
necessary party in para 7 and 13 it said :
7. In our view, a bare reading of this provision, namely,
second part of Order 1 Rule 10 sub-rule (2) CPC would
clearly show that the necessary parties in a suit for specific
performance of a contract for sale are the parties to the
contract or if they are dead, their legal representatives as
also a person who had purchased the contracted property
from the vendor. In equity as well as in law, the contract
constitutes rights and also regulates the liabilities of the
parties. A purchaser is a necessary party as he would be
affected if he had purchased with or without notice of the
contract, but a person who claims adversely to the claim of
a vendor is, however, not a necessary party. From the
above, it is now clear that two tests are to be satisfied for
determining the question who is a necessary party. Tests
are (1) there must be a right to some relief against such
party in respect of the controversies involved in the
2178
proceedings; (2) no effective decree can be passed in the
absence of such party.
13. From the aforesaid discussion, it is pellucid that
necessary parties are those persons in whose absence no
decree can be passed by the court or that there must be a
right to some relief against some party in respect of the
controversy involved in the proceedings and proper parties
are those whose presence before the court would be
necessary in order to enable the court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit although no relief in the suit was
claimed against such person.
2122. In J. Jaya Lalitha Vs. Union of India & another AIR
1999 SC 1912, the Court observed that "necessary" means that
is indispensable, needful and essential in respect of which,
nothing is vague or nebulous.
2123. In Udit Narain Singh Malpaharia Vs. Additional
Member, Board of Revenue AIR 1963 SC 786, the Court said
that a necessary party is one without whom no effective order
can be made; a proper party in whose absence an effective order
can be made but whose presence is necessary for a complete and
final decision on the question involved in the proceedings.
2124. In Prabodh Verma & others Vs. State of U.P. and
others AIR 1985 SC 167 it was considered as to who are
necessary and proper parties. The Court observed that a person
who may be adversely affected directly by a decision of the
Court is a necessary party, for the reason any order passed
behind his back may not be binding upon him having been
passed in violation of the principles of natural justice.
2125. In Ramesh Hirachand Kundanmal Vs. Municipal
2179
Corporation of Greater Bombay & others (1992) 2 SCC 524,
the Court said that parties whose presence before the Court is
necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit, are necessary parties. What makes a person
a necessary party is not merely that he has relevant evidence to
come on some of the questions involved nor it is merely that he
has interest in the correct solution of some questions involved,
and has relevant arguments to advance. The only reason which
makes it necessary to make a person a party to an action is so
that he should be bound by the result of the action, and the
question to be settled, therefore, must be a question in the action
which cannot be effectually and completely settled unless he is a
party.
2126. It has also been held in a catena of decisions that non
impleadment of a necessary party is fatal as provided in the
principles enshrined in proviso to Order 1, Rule 9 C.P.C.
Recently, a Division Bench of this Court also taken the above
view in Satya Narain Kapoor Vs. State of U.P. & others 2007
(2) ARC 308.
2127. In Narayan Bhagwantrao Gosavi Balajiwale (supra)
the Apex Court in para 41 of the judgment observed:
"..................The difficulty in the way of the appellant is
real. He refrained from joining the Deity, if not as a
necessary, at least as a proper party to the suit. If he had
joined the deity and the deity was represented by a
disinterested guardian, necessary pleas against his
contention could have been raised by the guardian, and it
is likely that some evidence would also have been given.
The appellant seeks to cover up his default by saying that
2180
the suit was one under O. 1, R. 8 of the Code of Civil
Procedure, and that the Hindu public was joined and the
Deity was adequately represented. In a suit of this
character, it is incumbent to have all necessary parties, so
that the declaration may be effective and binding. It is
obvious enough that a declaration given against the
interests of the deity will not bind the Deity, even though
the Hindu Community as such may be bound. The appellant
would have avoided circuity of action, if he had acceded to
the very proper request of the respondents to bring on
record the Deity as a party. He stoutly opposed such a
move, but at a very late stage in this court he has made an
application that the Deity be joined. It is too late now to
follow the course adopted by the Privy Council in 52 Ind
App 245: (AIR 1925 PC 139) and Kanhaiya Lal Vs. Hamid
Ali, 60 Ind App 263: (AIR 1933 PC 198 (1),........."
2128. The plaintiffs (Suit-4) have sought a relief of eviction
of idol from the building in dispute. The idol in question is a
Deity and a juridical person in law. That being so, if a relief is
sought against the idol, a juridical person, its impleadment was
necessary as it is a necessary party. The consequences of non
impleadment of a necessary party is that the suit cannot proceed
and deserve to be dismissed on this ground. The principle in this
regard is that relief cannot be granted in a suit against a person
who has no opportunity to place his case before the Court as one
cannot be condemned unheard.
2129. In ordinary circumstances, we ought to have dismissed
Suit-4 for non impleadment of necessary party. However, there
are certain peculiar facts and circumstance in the present sets of
cases. There was a serious dispute regarding the status of the
2181
idol in question. Besides, four suits have been clubbed. The
legal person i.e. Deity is fully represented in this Court and has
placed its case in the best possible manner through a battery of
learned counsels and we find nothing more could have been said
if technically the impleadment of idol would have been there in
Suit-4. The basic principle that no one should be condemned
unheard therefore does not exist in the case in hand. If a relief is
to be given to a plaintiff, an order may not be passed against a
person who is not a party to that suit. This would make at the
best, in case Suit-4 is to be allowed, not to grant relief in respect
of the eviction of the idol from the premises in question but
would have no impact on the matter of declaration.
2130. After due and careful consideration of the matter and
having placed this question before the learned counsels, who
argued the matter as to what else could have been their defence
if the idol would have been a party in Suit-4, they could not
place before us on behalf of the idol, who is plaintiff no.1 in
Suit-5 and is placing his case before us to which they could not
reply or add anything.
2131. We, accordingly, in the facts and circumstances and
discussion made above, decide issue 21 (Suit-4) in negative i.e.
in favour of the plaintiff (Suit-4) and hold that the suit is not
bad for non-joinder of the Deities.
2132. Issues no.2 and 6 (Suit-5) relates to the capacity of
plaintiff no.3 to file suit on behalf of plaintiffs no. 1 and 2 as
their next friend and relates to the maintainability of the suit in
the manner it has been filed or even if plaintiffs no.1 and 2 are
held to be juridical person, are entitled to sue or be sued in their
own name.
2133. Now, so far as the issue No.2 and 6 ( Suit-5) are
2182
concerned, we really find it surprising that there is no averment
at all in the entire plaint that plaintiff no. 3 is a worshipper of
lord Ram and that of plaintiffs 1 and 2. Besides it is also not the
case that there is no Shebait at all or the Shebait, if any, is not
managing the affairs properly.
2134. An idol or deity in Hindu law, as we have already
discussed,is a juridical person and can file a suit for protection
of its rights etc. and similarly can also be sued. Not being a
natural person, it cannot litigate on its own as but its interest has
to be watched through a natural person. Here we come up to the
concept of Shebait or Mahant. He look after the interest of the
idol or deity, can sue or be sued. Where the suit is in respect of
the rights of the idol, it is to be filed in the name of the idol
through the concerned Shebait or Mahant who is held to be the
manager of such deity, under an obligation to look after its
interest. No specific procedure in this regard has been mentioned
in the Code of Civil Procedure. However, by process of
interpretation and by judicial precedence the Courts have taken
recourse to the principles of Order 32 Rule 1 CPC. In B.K.
(supra) at page 265 the learned author clearly opined that a deity
being a juristic person has undoubtedly, right to institute a suit
for protection of its interest. So long as there is a Shebait in the
office functioning properly, the rights of the deity, as stated
above, practically lie dormant and it is the Shebait alone who
can file suits in the interest of the deity. When, however, the
Shebait is negligent or is himself the guilty party against whom
the deity needs relief, it is open to worshippers or other persons
interested in the endowment to file suit for the protection of the
Debutter. It is open to the deity also to file a suit through some
2183
person as next friend for recovery of possession of property
improperly alienated or for other relief. Such a next friend may
not unoften be a person who as a prospective Shebait or a
worshipper is personally interested in the endowment.
2135. The learned author has further considered as to how
we can distinguish the two classes of cases and ascertain
whether it is a suit by the deity or by the worshipper personally.
He has answered this question observing that it would certainly
depend upon the nature of the suit and the nature of the relief
claimed. If the suit is not in the name of the deity, it cannot be
regarded as a deity's suit, even though the deity is to be
benefited by the result of the litigation. It would be the personal
suit of the worshipper, the family members or the prospective
Shebait, as the case may be. These persons are not entitled to
claim any relief for themselves personally, e.g., by way of
recovery of possession of the property improperly alienated or
adversely possessed by a stranger.
2136. It appears that there was some variation in the opinion
of different courts on this aspect as to how and in what manner a
suit be filed on behalf of a deity or idol. Sri Jilani and other
learned counsels appearing for Sunni Board as well as other
Muslim parties have not gone to the extent of denying any right
of filing a suit by a deity and it is not, in fact, disputed that a
deity consecrated in accordance with Shashtrik law is a juridical
person entitled to sue or be sued and such a suit can be filed
through its Shebait or Mahant, as the case may be. Their
objection is that plaintiffs no.1 and 2 are not deity in accordance
with recognised tenets of Hindu law and, therefore, Suit-5 itself
is not maintainable. This issue we have already considered and
replied.
2184
2137. In continuation, the next objection is that plaintiffs
no.1 and 2 cannot be represented through the next friend i.e., the
plaintiff no.3, and Suit-5 by plaintiffs no.1 and 2 through
plaintiff no.3 as next friend is not in accordance with law, hence
not maintainable.
2138. The defendant no. 4 though has pleaded in para 1 of
his written statement (Suit-5) that there is no installation of deity
within the premises of the disputed place of worship and that the
idol in question was stealthily and surreptitiously kept inside the
mosque in the night of 22
nd
/23
rd
December, 1949 and, therefore,
are not a juridical person being not a deity but nothing has been
brought on record to prove it. Similar assertions have also been
made in paras 6, 11, 12, 14, 18 and 21 of the written statement
of defendant no. 4, Suit-5. Regarding plaintiff no. 1 (Suit-5) the
assertion that it is a Chal Vigrah and was kept in the night of
22
nd
/23
rd
December, 1949 after due ceremonies and the fact that
since 23
rd
December, 1949 it is continuously being worshiped
by Hindus leaves no option for us but to disagree with the stand
of the defendant no. 4 (Suit-5) that it is not a deity in terms of
Hindu Shastras and, therefore, not a juridical person. So far as
the plaintiff no. 2 is concerned, the discussion made above make
it clear that a place by itself can also be a deity for worship of
Hindus and in such a case being a Swambhu and permanent
deity, no particular kind of consecration is required to be
observed in such a case. Subject to our findings in respect to the
issues whether the disputed site is the place of birth of Lord
Rama or that it is believed to be the place of birth of Lord Rama
by Hindus for time immaterial, the issues which are separately
under consideration, if answered in affirmance, i.e., in favour of
Hindu parties, we have no hesitation in holding that the
2185
plaintiffs no. 1 and 2 cannot be denied the status of deity and,
therefore, are juridical persons as known in Hindu laws. It is not
the case of any of the parties that there is or there was any
shebait appointed or working to look after or managing the
plaintiffs no. 1 and 2. The idol while existing on Ram
Chabutara, its worship etc. was being managed by the priest of
Nirmohi Akhara as claimed by them and also not seriously
disputed by other Hindu parties but after its shifting in the
disputed building under the central dome, there is nothing on
record to show that any person as shebait of plaintiff no. 1
continued to look after.
2139. So far as plaintiff no. 2 is concerned, we find that there
is no pleading by the defendants no. 4 and 5 or any other
muslim party that there was any shebait to manage the affairs of
plaintiff no. 2. The plaintiff no. 3 has stated in para 1 that he is a
Vaishnav Hindu. The Vaishnavas are those who worship Lord
Rama. He was allowed to represent the plaintiffs no. 1 and 2 as
their next friend by Civil Judge while entertaining the suit in
question vide order dated 01.07.1989. After death of Sri D.N.
Agrawal he was replaced by Sri T.P.Verma vide order of the
Court who was made next friend of plaintiffs no. 1 and 2.
Recently Sri Triloki Nath Pandey has been allowed as next
friend to represent plaintiffs no. 1 and 2. In view of the law laid
down by the Apex Court in Bishwanath Vs. Sri Thakur Radha
Ballabhi (supra) in the absence of Shebait, a suit on behalf of a
Hindu idol can be filed and pursued by a worshipper as an idol's
next friend.
2140. A suit on behalf of a minor or a Deity can be filed
through next friend only if the above conditions are satisfied.
This could have been a serious deficiency in respect to
2186
maintainability of Suit-5 through next friend but we have
noticed that here is not a case where Suit-5 was entertained on
behalf of plaintiffs 1 and 2 through next friend without the
intervention of the Court. The record shows that before
entertaining the suit, the Court considered the prayer of the
plaintiff 3 to permit him to represent the plaintiffs no.1 and 2 as
next friend. The Civil Judge passed order on 01.07.1989
permitting the plaintiff no.3 to present the said suit as next
friend of the plaintiffs no.1 and 2. The said order of the Civil
Judge has never been challenged by any of the parties and the
same has attained finality. In fact after the death of Sri Deoki
Nandan Agarwal the then next friend of plaintiffs no.1 and 2, an
application was filed for another next friend by Sri T.P.Verma
which was allowed by this Court. Thereafter when a further
change was requested, another application was filed on behalf of
Kamleshwar Nath to represent as next friend of plaintiffs 1 and
2 but it was dismissed by this Court against which an appeal
was taken to the Apex Court and vide judgment dated
08.02.2010, the Apex Court permitted him to be impleaded and
pursue the present suit as next friend of plaintiffs no. 1 and 2
subject to certain conditions, which he complied with and
accordingly he was substituted as next friend by this Court's
order dated 18.03.2010.
2141. In view of the above discussion, we are of the view
that Suit-5 cannot be held not maintainable merely on account
of some defects in pleading with respect to the status of the next
friend or Shebait. We decide Issues no. 2 and 6 (Suit-5) in
negative i.e. in favour of the plaintiffs (Suit-5). We hold that
the suit is maintainable and plaintiff no. 3 can validly represent
plaintiffs no. 1 and 2 as their next friend and is competent on
2187
this account.
(H) Limitation
2142. In this category fall four issues namely Issue No. 3
(Suit-4); 10 (Suit-1); 9 (Suit-3); and 13 (Suit-5).
2143. The above issues though pertain to a common statute
of limitation but since the situation, relevant facts and
arguments cover different angles in all the cases, we propose to
deal the said four issues separately and suitwise.
2144. First we proceed with the leading case, i.e., Issue No.
3 (Suit-4) which reads as under:
Is the suit within time?
2145. The plaintiffs in para 23 of the plaint have alleged that
the cause of action arose on 23
rd
December, 1949 when the
Hindus unlawfully and illegally entered the mosque, desecrated
the same by placing idols therein, caused obstruction and
interference with the rights of Muslims in general in offering
prayers and other religious ceremonies in the mosque, caused
obstructions to Muslims going to the grave-yard and reciting
Fatiha to the dead persons buried therein; the said injury is
continuing and renewed de-die-indiem; the cause of action
against defendants 5 to 9 arose on 29
th
December, 1949 on
which date the defendant No. 7 attached the mosque in suit and
handed over possession to Receiver (defendant No. 9) who
assumed charge of the same on 5
th
January, 1950 and the State
Government and its officials, defendants No.6 to 8, failed in
their duty to prosecute offenders and safeguard interest of
Muslims. Para 23 of the plaint reads as under:
23. That cause of action for the suit against the Hindu
public arose on 23.12.1949 at Ajodhiya District Faizabad
within the jurisdiction of this Hon'ble Court when the
2188
Hindus unlawfully and illegally entered the mosque and
desecrated the mosque by placing idols in the mosque thus
causing obstruction and interference with the rights of the
Muslims in general, of saying prayers and performing
other religious ceremonies in the mosque. The Hindus are
also causing obstructions to the Muslims going in the
grave-yard (Ganj-Shahidan) and reciting Fatiha to the
dead persons buried therein. The injuries so caused are
continuing injuries and the cause of action arising
therefrom is renewed de-die-indiem and as against
defendants 5 to 9 the cause of action arose to the plaintiffs
on 29.12.1949 the date on which the defendant No. 7 the
City Magistrate Faizabad-cum-Ajodhiaya attached the
mosque in suit and handed over possession of the same to
Sri Priya Dutt Ram defendant no. 9 as the receiver, who
assumed charge of the same on January 5, 1950.
The State Government and its officials defendants 6
to 8 failed in their duty to prosecute the offenders and
safeguard the interests of the Muslims
2146. The defendants No.1 and 2 in para 23 of written
statement dated 12
th
March, 1962 have denied it. In additional
pleas, para 28 they have pleaded that the suit is time barred. The
plaintiff's were not in possession of the disputed property since
1934. The relevant pleading is as under :
23. That para 23 of the plaint is wrong. The suit is
hopelessly time barred. The Muslims have not been in
possession of the property in dispute since 1934, and
earlier.
28. That the suit is time barred as the plaintiffs were
never in possession over the temple in dispute since 1934,
2189
and the Hindus were holding it adversely to them, overtly
and to their knowledge.
2147. Another written statement filed on behalf of
defendants No. 1 and 2 dated 25
th
January, 1963 is similarly
worded in para 23 and 28 thereof.
2148. The defendants No. 3 and 4 in their written statement
dated 22
nd
August, 1962, while denying para 23 of the plaint in
para 23 of the written statement, have stated in para 34 (part of
additional pleas) that the suit is barred by time.
2149. The defendant No.10 in his written statement dated
15
th
February, 1990 has denied para 23 of the plaint and in
additional pleas has alleged in para 29 and 79 that the suit is
barred by time. Para 79 of the written statement says:
79. That the suit as framed is a suit for declaration only
and the relief for delivery of possession is in the words that
In case in the opinion of the court . . . . . which means
that the plaintiffs are not seeking relief of possession and
leave it to the court to grant possession suo motu. The
reason is obvious that the suit was barred by limitation and
so specific prayer has not been made.
2150. Though a replication has been filed to this written
statement of defendant No.10 but para 79 was inserted in the
written statement pursuant to the amendment allowed by Court's
order dated 23
rd
November, 1992 and there is no reply to para 79
of the written statement. The part of relief sought in the plaint
i.e. para 24 (bb) is also pleaded barred by time in para 12,
additional written statement dated 12
th
September, 1995 of
defendant No.10 (Baba Abhiram Dass, substituted by defendant
No.13/1 vide Court's order dated 27
th
January, 1992). In written
statement dated 20.7.1968, paras 23, 27 and 28 he pleads that
2190
the suit is hopelessly time barred. The defendant No.13/1 in his
separate written statement dated 4
th
December, 1989 in para 23
and 39, while asserting that the suit is barred by time, has
averred:
23. That paragraph 23 of the plaint is denied. The cause
of action pleaded therein is fictitious. It could in no case be
said to be renewed de-die-indiem, inasmuch as the
imaginary injury complained of does not constitute a
continuing injury or a continuing wrong in the eye of law.
The suit is hopelessly time-barred by the limitation of 6
years prescribed by Article 120 of the Schedule to the
Indian Limitation Act, 1908, which squarely applies to the
allegations and the cause of action pleaded in the plaint,
though the answering defendant submits that there was in
fact no cause of action for the suit, and the suit is only a
malicious exercise in futility which is fit to be dismissed as
such.
39. That the relief for possession by the removal of the
idols and other articles of Hindu worship, is in fact and in
law a relief for mandatory injunction, and is barred the 6
years' limitation prescribed by Article 120 of the Schedule
to the Indian Limitation Act, 1908. Otherwise too a person
other than the Mutwalli of a Mosque cannot sue for its
possession, and can only sue for a declaration that it is a
mosque and, if out of possession or dispossessed, that its
possession be made over to the Mutwalli, and to such suit
also Article 120 applied, and neither of the Article 142 or
144 of the Schedule to the Indian Limitation Act, 1908 had
any application. Further, on the pleas raised in the plaint,
the plaintiffs having claimed to have been effectively and
2191
completely dispossessed by the Preliminary order of
attachment and appointment of a Receiver to maintain the
worship of the Deity inside the three-domed building,
passed on 29.12.1949 under Section 145 of the Code of
Criminal Procedure, 1898, the suit is barred by Article 14
of the Schedule to the Indian Limitation Act, 1908.
Inasmuch as the Plaintiffs have claimed that they were
completely and effectively ousted from the building and
the premises in suit by the Defendants act of 'placing' of
Idols within the 'mosque', on December 23, 1949, their
cause of action was finally complete and closed that day,
and did not recur thereafter, according to their own
allegations. It could not be said to arise thereafter die-in-
diem, as it was not the case of a continuing wrong, within
the meaning of Section 23 of the Indian Limitation Act,
1908. In any view of the matter the suit is hopelessly barred
by limitation, even on the allegations of the Plaint which is
liable to be rejected under Order 7, Rule 11 of the Code of
Civil Procedure, 1908, and Section 3 of the Indian
Limitation Act, 1908, casts a duty on the Court to dismiss
the suit and not to proceed with its trial any further.
2151. Defendant No.17 in para 18 of additional written
statement dated 14
th
September, 1995 has pleaded that the suit is
barred by time in the following words :
18. That the suit as framed is a suit for declaration and
the relief for delivery of possession has not been made in
specific terms as the said relief was time-barred on the
date of institution of the suit. Now by way of amendment,
relief of possession from statutory receiver is being sought
and as such the plaintiffs are stopped from claiming
2192
possession of the property at this stage and the said claim
has also become time-barred.
2152. Similarly, defendant No.18 in para 23 of the written
statement has denied and in para 28 has said that the suit is
barred by limitation; Defendant No.20 has denied para 23 and in
para 48 has pleaded that the suit is barred by limitation.
2153. Sri P.N.Mishra, Advocate, assisted by Miss Ranjana
Agnihotri appearing on behalf of defendant No.20 submitted
that Sri Zahoor Ahmad-plaintiff No.10 (since deceased) was
impleaded as defendant No.1 in Suit-1. Mohammad Faiq-
plaintiff No.4 (since deceased) was defendant No.3 in Suit-1 and
defendant No.7 in Suit-3. Similarly, plaintiff No.10/1 Farooq
Ahmad substituted after the death of the plaintiff No.10 Zahoor
Ahmad is defendant No.11 in Suit-3. In the plaint (Suit-4), the
plaintiffs have taken a stand in para 11 that the disputed building
was in peaceful possession of Muslims and they used to recite
prayer therein till 23
rd
December, 1949 when a large crowd of
Hindus with mischievous intention of destroying, damaging or
defiling the said mosque and thereby insulting Muslim religion
and religious feelings, entered and desecrated the mosque by
placing idols therein. Shri Mishra pointed out that plaintiff
No.4-Mohd. Faiq and plaintiff No.10-Zahoor Ahmad had filed
written statement dated 21
st
February, 1950 in Suit-1 and in para
22 therein have pleaded that Namaz was offered in the building
in dispute till 16
th
December, 1949 and till then there was no
idol in the said building; if it has been placed subsequently in
the disputed building, the same was wholly illegal. Similarly,
the plaintiff No.4 along with two others had filed written
statement dated 28.03.1960 in Suit-3 and in para 26 thereof he
has pleaded that Namaz was offered in the disputed building till
2193
16
th
December, 1949 and upto that time there was no idol inside
the building. The above stand has been changed by the said two
plaintiffs in Suit-4 though it is a futile and illegal attempt; will
not bring the suit in dispute within the limitation prescribed
therefor.
2154. Sri Mishra contended that Suit-4 was presented and
filed in the court on 18
th
December, 1961. Plaintiff No.1 (Suit-
4), who was impleaded as defendant No.9 (Suit-3) pursuant to
the Court's order dated 23
rd
August, 1989 on application for
impleadment, made a statement through his counsel that he is
adopting written statement already filed on behalf of the
defendants No.1 to 5 in Suit-1 and the defendants No.6 to 8 in
Suit-3. Sunni Central Waqfs Board was also impleaded as
defendant No.10 in Suit-1 pursuant to the Court's order dated 7
th
January, 1987. Thus the stand taken by plaintiffs No. 4 and 10 is
binding on plaintiff No.1. The change in stand in Suit-4 with
respect to the date on which last Namaz was offered in the
disputed building cannot be pleaded otherwise than what they
have already pleaded. They are estopped from changing the
stand and cannot be permitted to cover up the deficiency in
regard to limitation by such altered stand.
2155. It is contended by Sri P.N. Misra that in the earlier
pleadings of Muslim parties their specific case was that last
Namaz was offered on 16.12.1949 hence the subsequent
improvement in the later pleadings shall not improve upon their
case. They are bound by the stand they have taken in earlier
pleadings. He argued that post litem motum is inadmissible on
the ground that the same thing must be in controversy before
and after the statement is made. The statement in Suit-4,
therefore, is inadmissible where improving upon their earlier
2194
stand it has been pleaded that Namaz was offered lastly on
22.12.1949. Sri Misra placed reliance on a decision of the Apex
Court in State of Bihar & Ors. Vs. Sri Radha Krishna Singh
(Supra) and in particular para 132 and 138 which read as under:
"132. Same view was taken by a full Bench of the Madras
High Court in Seethapti Rao Dora v. Venkanna Dora &
Ors, (1922) ILR 45 Mad 332: (AIR 1922 Mad 71). Where
Kumaraswami Sastri, J. Observed thus:
"I am of opinion that Section 35 has no
application to judgments, and a judgment which
would not be admissible under Sections 40 to 43 of
the Evidence Act would not become relevant merely
because it contains a a statement as to a fact which is in
issue or relevant in a suit between persons who are
not parties or privies. Sections 40 to 44 of the
Evidence Act deal with the relevancy of judgments in
Courts of justice."
"138. In Hari Baksh v. Babu Lal & Anr., AIR 1924 PC
126, their Lordships observed as follows.
"It appears to their Lordships that these
statements of Bishan Dayal who was then an interested
party in the disputes and was then taking a position
adverse to Hari Baksh cannot be regarded as evidence
in this suit and are inadmissible."
2156. Referring to the reliefs sought in Suit-4, it is
contended by Sri Mishra that for the purpose of limitation, Suit-
4 would be governed by Article 120 of Limitation Act, 1908,
(hereinafter referred to as L.A. 1908). The period prescribed
therein is only six years. Admittedly the suit has been filed by
the plaintiffs after more than 12 year. Therefore, it is liable to be
2195
dismissed on the ground of limitation itself. He argued that
though presently the L.A. 1908 has been repealed by Limitation
Act, 1963, (hereinafter referred to as L.A.1963), but for the
purpose of ascertaining as to whether the suit in question was
filed within the period prescribed in law, the statute as it was
enforced on the date of filing of the suit would have to be
considered. Applying Article 120 of L.A. 1908, Suit-4 is
hopelessly barred by limitation.
2157. The submission is that in a suit for declaration, only
Article 120 of L.A. 1908 applicable since no other Article apply.
Even if the date of cause of action, as mentioned in para 23 of
the plaint, is taken to be correct, the suit in question having been
filed after expiry of six years, is hopelessly barred by limitation.
2158. He also submitted that there is no question of
continuing wrong. It is not a case where the cause of action
accrued de die indiem i.e. every day. The suit in question cannot
be treated to be within limitation. Alternatively he contended
that even if Article 120 is found inapplicable, due to Article 142
or 144 of L.A. 1908, the cause of action having arisen on 16
th
December, 1949, and, not being a continuous cause of action
running de die indiem, the suit in question is barred by
limitation having been filed after expiry of 12 years i.e. 2 days
later after expiry of 12 years. Sri Mishra submits that once the
suit stands barred by limitation, there is no question to consider
or apply any sympathy or equity in the matter. A suit, which is
barred by limitation, cannot be held within time for trial on any
such ground like equity, conscience, justice, sympathy, leniency
etc.
2159. He further pleaded that Articles 142 and 144 of L.A.
1908 are mutually exclusive. In any case, both have no
2196
application to the dispute in hand in view of the relief sought by
the plaintiffs. The party to a suit, if has taken in an earlier
proceedings, a particular stand, is estopped from taking a
different stand in a subsequent proceeding. It amounts to
approbate and reprobate at the same time, which is
impermissible. In such a matter, doctrine of 'election' would
apply which binds the party to adhere to the first stand taken and
not to take advantage of subsequent stand, which is an after
thought.
2160. To attract Article 142 of L.A. 1908, possession of
the defendants was necessary on the date of suit filed by it.
There are two words used in Article 142 namely
discontinuation from possession and dispossession. Both
have different meaning and context. Since the defendants were
not in possession on the date the suit was filed, Article 144 of
L.A. 1908 would not come into picture.
2161. Sri Mishra further submits that the order of
attachment passed as a preliminary order under Section 145
Cr.P.C. would make no difference, inasmuch as, a Receiver
appointed by the Magistrate in proceedings under Section 145
Cr.P.C. is not adversary to any of the party but he holds and
receive the property, entering into the shoes of the original and
real owner. Hence the date from which receiver is appointed,
would not confer any advantage to the plaintiffs in the present
case so as to bring the matter within limitation.
2162. The above arguments have been buttressed by the
learned counsel Sri Mishra from various angles relying on a
catena of decisions i.e.: Shyam Sunder Prasad & Others Vs.
Raj Pal Singh & Anr. 1995(1) SCC 311, Chairman & M.D.,
N.T.P.C. Ltd. Vs. M/s Reshmi Construction Builders &
2197
Contractors AIR 2004 SC 1330, Draupadi Devi & Ors. Vs.
Union of India & Ors. (2004) 11 SCC 425, Mohima Chundar
Mozoomdar & Ors. Vs. Mohesh Chundar Neogi & Ors. 16
Indian Appeals (1888-1889) 23, Nawab Muhammad
Amanulla Khan Vs. Badan Singh & Ors. 16 Indian Appeals
(1888-1889) 148, Jamal Uddin & Anr. Vs. Mosque at
Mashakganj & Ors. AIR 1973 Allahabad 328, Raja Rajgan
Maharaja Jagatjit Singh Vs. Raja Partab Bahadur Singh AIR
1942 Privy Council 47, Mt. Bolo Vs. Mt. Koklan and others
AIR 1930 Privy Council 270, Partab Bahadur Singh,
Taluqdar Vs. Jagatjit Singh AIR 1936 Oudh 387, Yeknath Vs.
Bahia AIR 1925 Nagpur 236 (1), Rajah of Venkatagiri Vs.
Isakapalli Subbiah & Ors. ILR (26) Madras 410, Abinash Ch.
Chowdhury Vs. Tarini Charan Chowdhury and others AIR
1926 Cal. 782, The Firm of Eng Gim Moh Vs. The Chinese
Merited Banking Co. Ltd. and another AIR 1940 Rangoon
276, Annamalai Chettiar and others Vs. A.M.K.C.T.
Muthukaruppan Chettiar & anr. AIR 1931 Privy Council 9,
Mst. Rukhmabai Vs. Lala Laxminarayan & Ors. AIR 1960
SC 335, Garib Das and others Vs. Munshi Abdul Hamid and
others AIR 1970 SC 1035, State of Bihar & Ors. Vs. Sri
Radha Krishna Singh (supra), C. Beepathumma and others
Vs., Valasari Shankaranarayana Kadambolithaya and others,
AIR 1965 SC 241.
2163. Sri M.M.Pandey, Advocate on behalf of defendant
no.2/1 Mahant Suresh Das submitted that the property is under
attachment. There is no cause of action for claiming the relief of
possession and hence a suit for declaration lie which attract
limitation under Article 120. He placed reliance on Deo Kuer &
Anr. Vs. Sheo Prasad Singh & Anr. AIR 1966 SC 359 and
2198
submitted that since the suit has been filed after more than 11
years, it is highly barred by limitation. He also submitted that
limitation once start running, shall not stop and placed reliance
on Bank of Upper India Vs. Mt. Hira Kuer & Ors. AIR 1937
Oudh 291. Explaining "right to sue", he placed reliance on
Annamalai Chettiar and others Vs. A.M.K.C.T.
Muthukaruppan Chettiar & anr (Supra) and Mt. Bolo Vs.
Mt. Koklan and others (Supra).
2164. Besides above, he also placed reliance on Partab
Bahadur Singh, Taluqdar Vs. Jagatjit Singh (Supra), C.
Natrajan Vs. Ashim Bai & Anr. AIR 2008 SC 363; Shyam
Sunder Prasad (supra); Panna Lal Biswas Vs. Panchu Raidas
AIR 1922 Cal 419; Bhinka and others Vs. Charan Singh
1959 (Supp.) 2 SCR 798, Abdul Halim Khan Vs. Raja Saadat
Ali Khan & Ors. AIR 1928 Oudh 155 and Brojendra Kishore
Roy Chowdhury & others Vs. Bharat Chandra Roy and
others AIR 1916 Cal. 751.
2165. Sri G.Rajagopalan, Senior Advocate, appearing on
behalf of defendant No.12 also towing the same line contended
that the suit is only for declaration and there is no prayer for
possession. It is covered by Article 120 of the L.A.1908 hence
barred by limitation. Referring to Order VII Rule 6 C.P.C., he
submits that the plaintiffs when filed the suit beyond the period
of limitation must state the grounds upon which exemption from
such law is claimed. No such ground or exemption has been
stated in the plaint therefore, it is ex facie barred by limitation.
He also contended that the plaintiffs have also not sought any
exemption under Public Waqf (Extension) of Limitation Act,
1959 and even otherwise the said Act would not be applicable to
the plaintiffs.
2199
2166. Sri Ravi Shankar Prasad, Senior Advocate, contended
that the suit of plaintiffs-Muslims is actually a suit for
immoveable property governed by Article 120 of L.A. 1908 and
neither Article 142 nor 144 is applicable. Any attempt to
construe the suits filed by the plaintiffs as anything but a suit for
possession of immovable property is incorrect. They are not in
possession of the property in dispute since 22/23
rd
December,
1949 and therefore, the limitation was only for six years which
having elapsed the suit is barred by limitation. He placed
reliance on Raja Ramaswamy Vs. Govinda Ammal, AIR 1929
Madras 313 (Para 19 to 25); Pierce Leslie & Co. Ltd. Vs. Miss
Violet Ouchterlony Wapshare AIR 1969 SC 843 (Para 7);
Janki Kunwar Vs. Ajit Singh (1888) ILR 15 Cal 58 (Para 8);
Jafar Ali Khan & Ors. Vs. Nasimannessa Bibi AIR 1937 Cal
500 (Para 7).
2167. On the contrary, Sri Siddiqui refuting all the
submission vehemently contended that here is a continuous
cause of action since the proceedings of 145 Cr.P.C. have not
been finalized so far. The deprivation for the Muslims is on day-
to-day basis and that it was a suit for possession wherein the
limitation would commence from 22/23 December, 1949 and
the suit having been filed on 18
th
December, 1961 is well within
time. He also cited certain authorities namely Kali Prasad Misir
and others Vs. Harbans Misir 1919 All 383; Mata Palat Vs.
Beni Madho AIR 1914 All 184; Prajapati and others Vs. Jot
Singh and others AIR 1934 All 539; Jagat Mohan Nath Sah
Deo Vs. Pratap Udai Nath Sah Deo & Ors. AIR 1931 PC 302;
and Suryanarayana & Ors. Vs. Bullayya & Ors. AIR 1927
Madras 568.
2168. Before coming to the question as to whether Suit-4
2200
(leading suit) is barred by limitation or not, it would be
appropriate, first to consider, the relevant provisions, namely,
Article 120, 142 and 144 of L.A. 1908 and a few other relative
provisions to find out scope, effect and the circumstances in
which they would operate since it is this Act which was in
operation at the time when Suit-4 was filed.
2169. The nature of the statute on limitation has been
considered in C. Beepathuma (supra) and it say:
There is no doubt that the Law of Limitation is a
procedural law and the provisions existing on the date of
the suit apply to it.
2170. Before the British, during the period when Muslims
ruled the Country (in particular Oudh), it appears that personal
laws governed all matters. The Muslim law does not recognize
limitation; while in Hindu personal laws, on certain aspects, in
different schools, some provisions for limitation are prescribed
which are not common to all the Hindus. Hindu Law recognizes
both prescription and limitation while Muslim jurisprudence
recognises neither of them. In some of the Smritis a period of 20
years was prescribed for acquisition of title by prescription. It
appears that since agriculture was the main occupation of the
people, Smritis concentrated more on land and on the rights
therein.
2171. Thus prior to 05.05.1859 there was no common law
of limitation applicable to whole of India. The Provincial Courts
in each Presidency established by East India Company were
governed by certain Regulations, like; Regulation III of 1793
(Bengal); Regulation II of 1802 (Madras); Regulation I of 1800
(Bombay) and the Acts particularly applicable to them like Act I
of 1845; Act XIII of 1848; Act XI of 1859. The Non-Regulation
2201
Provinces i.e. Punjab and Oudh etc. were governed by Codes of
their own and sometimes by Circular Orders of Judicial
Commissioner. The three Supreme Courts established by Royal
Charter adopted the English law of limitation.
2172. Cause of action with respect to the statutes of
Limitation as applicable in England in one of the earliest cases
came to be considered in 1849 as to when it would run. Privy
Council in The East India Company Vs. Oditchurn Paul 1849
(Cases in the Privy Council on Appeal from the East Indies)
43 held that the Statute runs from the time of breach, for that
constitutes the cause of action. With reference to the East India
Company, it observed that the statute of limitation was extended
to India by Indian Act No.XIV of 1840. The appeal against the
Supreme Court of Judicature at Fort William in Bengal
(Calcutta) was allowed by Privy Council. It also observed
therein if the matter would have been tried by Hindu law, the
limitation of suits, under the Hindu law, would have been
twelve years.
2173. The first codified statute was Act No. XIV of 1859,
enacted to amend and consolidate laws relating to limitation of
suits. This Act received the assent of Governor General on 5th
May, 1859. It was repealed by Act No. IX of 1871, Act XV of
1877 and thereafter by Act IX of 1908 (i.e. L.A. 1908).
Presently, even L.A. 1908 has been repealed and the Courts in
India are now governed by Limitation Act, 1963 (i.e. L.A.
1963).
2174. Act XIV of 1859 provided limitation of suits only.
Section I, Clauses12 and 16, said :
12. To suits for the recovery of immovable property or of
any interest in immovable property to which no other
2202
provision of this Act applies- the period of twelve years
from the time the cause of action arose.
16. To all suits for which no other limitation is hereby
expressly provided- the period of six years from the time
the case of action arose. (emphasis added)
2175. Sections XI, XII, XV and XVI of the Act XIV of
1859 read as under:
"XI. If, at the time when the right to bring an
action first accrues, the person to whom the right
accrues is under a legal disability, the action may be
brought by such person or his representative within the
same time after the disability shall have ceased as would
otherwise have been allowed from the time when the cause
of action accrued, unless such time shall exceed the period
of three years, in which case the suit shall be commenced
within three years from the time when the disability ceased;
but, if, at the time when the cause of action accrues to any
person, he is not under a legal disability, no time shall be
allowed on account of any subsequent disability of such
person or of the legal disability of any person claiming
through him."
"XII. The following persons shall be deemed to be
under legal disability within the meaning of the last
preceding Section-married women in cases to be decided
by English law, minors, idiots, and lunatics."
"XV. If any person shall, without his consent, have
been dispossessed of any immovable property otherwise
than by due course of law, such person, or any person
claiming through him, shall, in a suit brought to recover
possession of such property, be entitled to recover
2203
possession thereof notwithstanding any other title that may
be set up in such a suit, provided that the suit be
commenced within six months from the time of such
dispossession. But nothing in this Section shall bar the
person from whom such possession shall have been so
recovered, or any other person, instituting a suit to
establish his title to such property and to recover
possession thereof within the period limited by this Act."
"XVIII. All suits that may be now pending, or that
shall be instituted within the period of two years from the
date of the passing of this Act, shall be tried and
determined as if this act had not been passed; but all suits
to which the provisions of this Act are applicable that shall
be instituted after the expiration of the said period shall be
governed by this Act and no other law of limitation, any
Statute, Act, or Regulation now in force notwithstanding."
2176. Section I of Act XIV of 1859 says that no suit shall
be maintained in any Court of Judicature within any part of the
British territories in India in which this Act shall be in force,
unless the same is instituted within the period of limitation
hereinafter made applicable to a suit of that nature, any Law or
Regulation to the contrary notwithstanding. The territory upon
which the said Act was made operative, is provided in Section
XXIV as under:
"XXIV. This Act shall take effect throughout the
Presidencies of Bengal, Madras, and Bombay, including
the Presidency Towns and the Straits Settlements; but shall
not take effect in any Non-Regulation Province or place
until the same shall be extended thereto by public
notification by the Governor-General in Council or by the
2204
Local Government to which such Province or place is
subordinate. Whenever this Act shall be extended to any
Non-Regulation Province or place by the Governor-
General in Council or by the Local Government to which
such Province or place is subordinate, all suits which,
within such Province or place, shall be pending at the date
of such notification, or shall be instituted within the period
of two years from the date thereof, shall be tried and
determined as if this Act had not been passed; but all suits
to which the provisions of this Act are applicable that shall
be instituted within such Province or place after the
expiration of the said period, shall be governed by this Act
and by no other law of limitation, any Statute, Act, or
Regulation now in force notwithstanding."
2177. Though Act No. XIV of 1859 was drafted in a
language much more precise than the loose phraseology of
earlier Regulations, but the Privy Council in The Delhi and
London Bank Vs. Orchard, I.L.R. 3 (1876) Calcutta 47 (PC)
observed it as an inartistically drawn statute.
2178. Act IX of 1871 extended the scope and made
provisions relating to limitation to suits, appeals and certain
applications to Courts. It received the assent of Governor
General on 24
th
March, 1871. Second Schedule, First Division,
Articles 118, 143 and 145 provided limitation for possession of
immovable property and read as under :
Description of suit Period of
limitation
Time when
period begins to
run
118 Suit for which no period of
limitation is provided
elsewhere in this schedule.
Six years When the right to
sue accrues.
143 For possession of Twelve The date of the
2205
immovable property when
the plaintiff, while in
possession of the property,
has been dispossessed or
has discontinued the
possession.
years dispossession or
discontinuance.
145 For possession of
immovable property or any
interest therein not hereby
otherwise specially
provided for
Twelve
years
When the
possession of the
defendant, or of
some person
through whom
he claims,
became adverse
to the plaintiff.
2179. Some of the feature of Act IX of 1871 are:
(a) Section-3 defines term 'minor means a person who has not
completed his age of eighteen years;
(b) Section-7 deals with legal disability, Section 9 provides
continuous running of time, Sections 23 and 24 deals with
continued cause of action or renewal of cause of action
and 29 for the first time provides for extinction of rights of
a person in respect to any land or hereditary office and
read as under:
"7. If a person entitled to sue be, at the time the right
to sue accrued, a minor, or insane, or an idiot, he may
institute the suit within the same period after the
disability has ceased, or (when he is at the time of the
accrual affected by two disabilities) after both
disabilities have ceased, as would otherwise have been
allowed from the time prescribed therefor in the third
column of the second schedule hereto annexed. When
this disability continues upto his death, his
representative in interest may institute the suit within the
same period after the death as would otherwise have
2206
been allowed from the time prescribed therefor in the
third column of the same schedule.
Nothing in this section shall be deemed to extend,
for more than three years from the cessation of the
disabilities or the death of the person affected thereby,
the period within which the suit must be brought"
" 9. When once time has begun to run, no subsequent
disability or inability to sue stops it : Provided that
where letters of administration to the stage of a creditor
have been granted to his debtor, the running of the time
prescribed for a suit to recover the debt shall be
suspended while the administration continues."
"23. In the case of a suit for the breach of a contract,
where there are successive breaches, a fresh right to sue
arises, and a fresh period of limitation begins to run,
upon every fresh breach; and where the breach is a
continuing breach, a fresh right to sue arises, and a fresh
period of limitation begins to run, at every moment of the
time during which the breach continues.
Nothing in the former part of this section applies to
suits for the breach of contracts for the payment of
money by instalments, where, on default made in
payment of one instalment, the whole becomes due."
"24. In the case of a continuing nuisance a fresh right
to sue arises, and a fresh period of limitation begins to
run at every moment of the time during which the
nuisance continues."
"29. At the determination of the period hereby limited
to any person for instituting a suit for possession of any
land or hereditary office, his right to such land or
2207
office shall be extinguished."
2180. Drafting of this statute received better observation
from Privy Council in Maharana Futtehsangji Vs. Dessai
Kullianraiji, (1873) LR 1 IA 34 and it commented as a more
carefully drawn statute.
2181. The Act gave for the first time some recognition to
the doctrine of prescription by the Legislative Council of India,
viz. the doctrine of extinctive prescription as to land and
hereditary offices, and of positive prescription as to easements.
It lived short and was replaced by Act 15 of 1877 which
extended the principle of extinctive prescription to movable
property and the principle of positive or acquisitive prescription
to profits a prendre.
2182. The Law of Prescription prescribes the period at the
expiry of which not only the judicial remedy is barred but a
substantive right is acquired or extinguished. A prescription by
which a right is acquired, is called an "acquisitive prescription".
A prescription by which a right is extinguished is called
"extinctive prescription". The distinction between the two is not
of much practical importance or substance. The extinction of
right of one party is often the mode of acquiring it by another.
The right extinguished is virtually transferred to the person who
claims it by prescription. Prescription implies with the thing
prescribed for is the property of another and that it is enjoyed
adversely to that other. In this respect it must be distinguished
from acquisition by mere occupation as in the case of res
nullius. The acquisition in such cases does not depend upon
occupation for any particular length of time.
2183. Doctrine of limitation and prescription is based upon
the broad considerations. The first, there is a presumption that a
2208
right not exercised for a long time is non-existent. Where a
person has not been in possession of a particular property for a
long time, the presumption is that he is not the owner thereof.
The reason is that owners are usually possessors and possessors
are usually owners. Possession being normally evidence of
ownership. The longer the possession has continued the greater
is its evidentiary value. The legislature it appears, therefore,
thought it proper to confer upon such evidence of possession for
a particular time a conclusive force. Lapse of time is recognised
as creative and destructive of right instead of merely an
evidence for and against their existence. The other consideration
on which the doctrine of limitation and prescription may be said
to be based is that title to property and matters of right in
general should not be in a state of constant uncertainty, doubt
and suspense. It would not be in the interest of public at large.
The object of the statute of limitation is preventive and not
creative but in a matter covered by the principle of adverse
possession it also creates. It interposes a statutory bar after a
certain period and gives a quietus to suits to enforce an existing
right.
2184. Act XV of 1877 received the assent of Governor
General on 19
th
July, 1877 and came into force on 1
st
October,
1877. Articles 120, 142 and 144 , Second Schedule-First
Division of the said Act reads as under :
limitation
Time when
period begins
to run
elsewhere in this schedule.
Six years When the right
to sue accrues.
immovable property, when
Twelve
years
The date of the
dispossession
2209
possession.
or
discontinuance.
otherwise specially
provided for.
Twelve
years
When the
possession of
the defendant
becomes
adverse to the
plaintiff.
2185. Section 2 of Act XV of 1877 makes it very clear that
the right to sue if already barred shall not revive by said
enactment. It reads as follows:
"2. All reference to the Indian Limitation Act,
1871, shall be read as if made to this Act; and nothing
herein or in that Act contained shall be deemed to affect
any title acquired, or to revive any right to sue barred,
under that Act, or under any enactment, thereby repealed;
and nothing herein contained shall be deemed to affect the
Indian Contract Act, section 25."
2186. Section 4 makes it obligatory for the Court to
dismiss a suit if presented after the expiry of the period of
limitation. Section 7 deals with the legal disability which is
virtually pari materia with the earlier provision of 1871 Act
though slightly worded differently and says:
"7. If a person entitled to institute a suit or make
an application be, at the time from which the period of
limitation is to be reckoned. A minor, or insane, or an idiot,
he may institute the suit or make the application within the
same period, after the disability has ceased, as would
otherwise have been allowed from the time prescribed
therefor in the third column of the second schedule hereto
2210
annexed.
When he is, at the time from which the period of
limitation is to be reckoned, affected by two such
disabilities, or when, before his disability has ceased, he is
affected by another disability, he may institute the suit or
make the application within the same period after both
disabilities have ceased, as would otherwise have been
allowed from the time so prescribed.
When his disability continues up to his death, his
legal representative may institute the suit or make the
application within the same period after the death as would
otherwise have been allowed from the time so prescribed.
When such representative is at the date of the death
affected by any such disability, the rules contained in the
first two paragraphs of this section shall apply.
Nothing in this section applies to suits to enforce
rights of pre-emption, or shall be deemed to extend, for
more than three years from the cessation of the disability
or the death of the person affected thereby, the period
within which any suit must be instituted or application
made."
2187. Section 9 talks of continuous running of time,
Section 23 deals with the continuing breach of contract and
Section 28 talks of extension of right to property and say:
"9. When once time has begun to run, no subsequent
disability or inability to sue stops it:
Provided that, where letters of administration to the
estate of a creditor have been granted to his debtor, the
running of the time prescribed for a suit to recover the debt
shall be suspended while the administration continues."
2211
"23. In the case of a continuing breach of contract
and in the case of a continuing wrong independent of
contract, a fresh period of limitation begins to run at every
moment of the time during which the breach or the wrong,
as the case may be, continues."
"28. At the determination of the period hereby limited
to any person for instituting a suit for possession of any
property, his right to such property shall be extinguished."
2188. There were several amendments in the above statute
and ultimately it was repealed and replaced by Act 9 of 1908.
2189. L.A. 1908 came into force on 1
st
January, 1909. It
continued with the provision imposing obligation upon the
Court to dismiss a suit if, while it is instituted, is already barred
by limitation vide Section 23.
2190. The arrangement of above Articles 120, 142 and 144
in L.A. 1908 remained the same, i.e., Articles 120, 142 and 144
and is verbatim:
limitation
Time when
period begins to
run
elsewhere in this schedule
Six years When the right
to sue occurs.
immovable property when
possession.
Twelve
years
The date of the
dispossession or
discontinuance.
otherwise specially
provided for.
Twelve
years
When the
possession of
the defendant
becomes
adverse to the
plaintiff.
2212
2191. The doctrine of limitation is founded on
considerations of public policy and expediency. It does not give
a right where there exist none, but to impose a bar after a certain
period to the remedy for enforcing an existing right. The object
is to compel litigants to be diligent for seeking remedies in
Courts of law if there is any infringement of their right and to
prevent and prohibit stale claims. It fixes a life span for remedy
for redressal of the legal injury, if suffered, but not to continue
such remedy for an immemorial length of time. Rules of
limitation do not destroy the right of the parties and do not
create substantive rights if none exist already. However, there is
one exception i.e. Section 28 of L.A. 1908, which provides that
at the determination of the period prescribed for instituting suit
for possession of any property, his right to such property shall
stand extinguished and the person in possession, after expiry of
the such period, will stand conferred title. The law of limitation
is enshrined in the maxim interest reipublicae ut sit finis
litium (it is for the general welfare that a period be part to
litigation).
2191A. This statute is based upon two broad
principles. First, there is a presumption that a right not exercised
for a long time is non existent. Where a person has not been in
possession of a particular property for a long time, the
presumption is that he is not the owner thereof. The owners are
usually possessors and possessors are usually owners.
Possession thus being normally evidence of ownership. Longer
the possession has continued the greater is its evidentiary value.
The law therefore has deemed it expedient to confer upon such
evidence of possession for a particular time, a conclusive force.
2192. In Motichand Vs. Munshi, AIR 1970 SC 898, the
2213
Court noticed the maxim vigilantibus non dormientibus jura
subventiunt (the law assists the vigilant not those who sleep over
their rights). Though there is a general principle ubi jus ibi
remedium i.e. where there is a legal right there is also a remedy,
but there are certain exceptions to this general rule.
2193. Mere expiry of limitation could have extinguished
remedy but the principle embodied in Section 28 extinguishes
the right also and thereby makes the said general principle
inapplicable. Once the right of getting possession extinguished it
cannot be revived by entering into possession again [See
Salamat Raj Vs. Nur Mohamed Khan (1934) ILR 9 Lucknow
475; Ram Murti Vs. Puran Singh AIR 1963 Punjab 393;
Nanhekhan Vs. Sanpat AIR 1954 Hyd 45 (FB) and Bailochan
Karan Vs. Bansat Kumari Naik 1999 (2) SCC 310].
2194. In this matter the plaintiffs (Suit-4) have attempted
to bring their case within the precinct of Article 142 and in the
alternative Article 144 while the defendants intend to bulldoze
the plaintiffs by stressing upon to apply Article 120. An attempt
to out class the bar of limitation has also been made by pleading
that the wrong is de-die indium, hence being a continuing
wrong, no obstruction of limitation is there.
2195. Article 120 is completely a residuary provision and
where limitation cannot be found in any other provision, only
then it would be attracted. We can say safely that Article 120
L.A. 1908 would be attracted only when Articles 142 and 144
are inapplicable. We, therefore, at this stage defer to consider
scope and extent of Article 120 so as to be discussed a bit later.
2196. Between the Articles 142 and 144 the later one is a
kind of residuary provision while Article 142 applies in a
specific type of case [See Sidram Lachmaya Vs. Mallaya
2214
Lingaya AIR (36) 1949 Bom. 137 (Para 9); Ranchordas
Vandravandas Vs. Parvatibai 29 I.A. 71 (P.C.)].
2197. A Full Bench of this Court in Bindyachal Chand
Vs. Ram Gharib, AIR 1934 Alld. 993 (FB) held where Article
142 is applicable, Article 144 cannot be applied. First it has to
be seen whether Article 142 applies in the case or not and when
it clearly becomes inapplicable only then resort can be taken to
Article 144.
2198. Article 142 applies where the plaintiff while in
possession has been dispossessed or has discontinued his
possession. Where a persons has been dispossessed or
discontinued of his possession of the property, he can bring an
action seeking restoration of possession of the immoveable
property within 12 years. It pre-supposes the possession of such
person over the immoveable property before he is dispossessed
or discontinued. Article 144, however, applies where any other
provision specifically providing for restoration of immoveable
property or interest therein is not available and there also though
the period of limitation is 12 years but the limitation runs from
the date when the possession of the defendants becomes adverse
to the plaintiff and commonly it is said that this provision is in
respect to the cases where the defendant's possession is said to
be adverse. Though the distinction is quite evident but in the
complex nature of the society and the disputes which arise, at
times the courts find difficulty in maintaining distinction
between the two and there appears to be some conflicting views
also as to the scope of Article 142 L.A. 1908 and its
applicability. What has been ultimately realised is that the
question would basically that of pleading.
2199. In reference to Articles 143 of Act 9 of 1871 the
2215
Privy Council in Bibi Sahodra Vs. Rai Jang Bahadur, (1881) 8
Cl. 224:8 I.A. 210 said:
refers to a suit for possession of immovable property,
where the plaintiff, while in possession of the property, has
been dispossessed or has discontinued the possession, and
it allows twelve years from the date of the dispossession or
discontinuance. But in order to bring the case under that
head of the schedule, he must show that there has been a
dispossession or discontinuance.
2200. The view, therefore, was that Article 143 of Act 9 of
1871 which is corresponding to Article 142 of Act 15 of 1877
and L.A. 1908 would not be attracted where pleadings distinctly
show that there was no dispossession or discontinuance of
possession of the plaintiff.
2201. In Karan Singh Vs. Bakar Ali Khan, (1882) 5 All 1
the question of application of Article 145 of Act 9 of 1871 (this
corresponds to Article 144 of the statute with which we are
concerned) arose. Sir Peacock observed that a suit can be
brought within 12 years from the time when the possession of
the defendant or of some persons through whom he claims,
became adverse to the plaintiff.
2202. In both the type of cases what we find is that
possession by itself is of much relevance and importance. The
courts took the view that by reason of his possession a person
may have an interest which can be sold or devised. One has to
prove first his possession before making complaint of
dispossession or discontinuance of possession. He need not
prove the title or the capacity in which he had the possession for
the purpose of Article 142. However, after title is proved, the
presumption of possession goes with it unless proved otherwise.
2216
2203. Privy Council in Sundar Vs. Parbati, (1889) 12 All
51 agreed with the view of this court that possession is a good
title against all the world except the person who can show a
better title. By reason of his possession such person has an
interest which can be sold or devised.
2204. In Mohima Chundar Mazoomdar (supra)
considering Article 142 of Act 15 of 1877, the Judicial
Commissioner held that onus lies upon the plaintiffs to prove
their possession prior to the time when they were dispossessed,
and at sometime within twelve years before the commencement
of the suit so as to save suit from limitation prescribed under
Article 142.
2205. Articles 142 and 144 of Act XV of 1877 came up for
consideration before the Judicial Commissioner in Nawab
Muhammad Amanulla Khan (supra). It held that Article 142
applies where the plaintiff while in possession of the
immovable property earlier had been dispossessed or has
discontinued the possession and in such a case to bring a suit for
possession, limitation would be 12 years. However, Article 144
applies only as to adverse possession where there is no other
Article which specifically provides for the same. In the
aforesaid case there was a refusal on the part of the plaintiffs
and their ancestors to make the engagement for payment of
revenue. The Government made engagement with the villagers
(defendants). It was held that this amounted to dispossession or
discontinuance of possession of the plaintiff within the meaning
of Article 142 of Act 15 of 1877 and this case would not be
governed by residuary Article 144 as to adverse possession.
2206. Explaining inter relationship of the two Articles
Punjab Chief Court in Bazkhan Vs. Sultan Malik, 43 P.R. 1901
2217
held that suit for possession of immoveable property upon
discontinuance of possession or dispossession is barred after 12
years under Article 142 of the Limitation Act although no
adverse possession is proved. Articles 144 and 142 cannot both
apply. Article 144 in terms is applicable only when no other
Article is found applicable.
2207. Privy Council in Dharani Kanta Lahiri Vs. Gabar
Ali Khan, (1913) 18 I.C. 17 said:
it lay upon the plaintiffs to prove not only a title as
against the defendants to the possession, but to prove that
the plaintiffs had been dispossessed or had discontinued to
be in possession of the lands within the 12 years
immediately preceding the commencement of the suit.
2208. In the above case a suit was filed for ejectment of
persons who were admittedly in possession of lands from which
they were sought to be evicted.
2209. In Secretary of State Vs. Chelikani Rama Rao,
(1916) 39 Mad. 617 Lord Shaw on page 631 of the report
observed:
nothing is better settled than that the onus of establishing
title to property by reason of possession for a certain
requisite period lies upon the person asserting such
possession. It is too late in the day to suggest the contrary
of this proposition. If it were not correct it would be open
to the possessor for a year or a day to say, 'I am here; be
your title to the property ever so good, you cannot turn me
out until you have demonstrated that the possession of
myself and my predecessors was not long enough to fulfil
all the legal conditions.' ......It would be contrary to all
legal principles to permit the squatter to put the owner of
2218
the fundamental right to a negative proof upon the point
of possession. (emphasis added)
2210. In Kanhaiya Lal Vs. Girwar, 1929 ALJ 1106 this
Court said:
this article applies to suit in which the plaintiff claims
possession of the property on the ground that while in
possession he was dispossessed or his possession was
discontinued by the defendant. In other words that article is
restricted to cases in which the relief for possession sought
by the plaintiff is based on what may be styled as
possessory title.
possession is in itself title and good against every body
except the true owner. In short, there may be cases in
which a person, though not the true owner, has been in
peaceful possession of property and his possession is
disturbed. In such cases the person dispossessed has a
right to be restored back to possession on proving the fact
of his possession and his dispossession or discontinuance
of his possession by the defendant within a period of 12
years prior to the institution of the suit. To such cases Art.
142 applies.
2211. It thus appear that the Court followed the principles
that the correct article to apply in cases based upon the
allegation of title and possession is Article 144 because if
plaintiff's title is proved he is entitled to succeed unless the
defendants proves that the title has been lost on account of
adverse possession on the part of defendants. But the plaintiff
though not able to substantiate his title, is in a position to prove
his possession and dispossession by defendants within 12 years,
if that be the case, Article 142 will apply and the burden will lie
2219
on the plaintiff. This was in fact misunderstood in the sense that
a suit of owner who also had actual possession, if dispossessed
or discontinued possession was not treated to be covered by
Article 142. This is evident in Kallan Vs. Mohammad
Nabikhan, 1933 ALJ 105. Fortunately this mistake was soon
realised and the view otherwise was overruled by a Full Bench
in Bindyachal Chand Vs. Ram Gharib (supra) where it was
held that Article 142 is not restricted to suits based on
possessory title only as distinguished from suits in which
plaintiff proved his proprietary title as well. This view of the
Full Bench was followed by a Full Bench of Lahore High Court
in Behari Lal Vs. Narain Das, 1935 Lah. 475.
2212. In Shyam Sunder Prasad (supra) in reference to
Article 142 and 144 of L.A. 1908 the Apex Court said:
Under the old Limitation Act, all suits for
possession whether based on title or on the ground of
previous possessions were governed by Article 142 wherein
the plaintiff while in possession was dispossessed or
discontinued in possession. Where the case was not one of
dispossession of the plaintiff or discontinuance of
possession by him, Article 142 did not apply. Suits based
on title alone and not on possession or discontinuance of
possession were governed by Article 144 unless they were
specifically provided for by some other articles. Therefore,
for application of Article 142, the suit is not only on the
basis of title but also for possession.
2213. Thus, the judicial consensus now binding on this
Court is to the effect that Article 142 is one of the specific
provisions governing suits for possession of immoveable
property and contemplates a suit for possession when the
2220
plaintiff, while in possession has been dispossessed or has
discontinued possession [See also Abbas Dhali Masabdi
Karikar, (1914) 24 I.C. 216 (Cal.)].
2214. Article 144 in the matter of an occasion for
possession of immoveable property or an interest therein is a
residuary Article hence the allegations made in the plaint if
brings the suit within Article 142, there is no justification or
occasion to take the matter out of that Article and then to apply
Article 144. It is only when Article 142 is not applicable and no
other article apply, based on the pleadings, then if attracted,
Article 144 may be applied. Article 142 is neither subordinate
nor subject to Article 144 but will have application on its own
and independent. Article 144 thus is a kind of residuary article
and will have application when no other article has application
to the matter. In Bindyachal Chand (supra) Justice Mukharjee
observed that if on the allegations made in the plaint suit falls
within Article 142 there is no justification to take it out of
Article 142 and attempt to bring Article 144 into picture.
2215. We may notice at this stage that the view taken by
the Courts that Article 142 would apply to a suit by the owner of
the property as well as a person suing on the basis of possessery
titles and thereby seems to favour even a trespasser, as observed
in Bindyachal Chand (supra) and some other Courts that its
applicability to a suit is based on possessary title constitute one
of the relevant aspect resulted in possibility of helping
miscreants. This view, besides other, caused in a specific and
clear provision in the new statute i.e. L.A. 1963 where words
or has discontinued the possession were omitted in column 3
and the words based on previous possession and not on title
were inserted in column 1 in Article 64 thereof.
2221
2216. In C. Natarajan Vs. Ashim Bai (supra), the Apex
Court noticed the distinction between Article 142 and 144 of LA
1908 and Article 64 and 65 of LA 1963 in para 15 of the
judgment as under:
15. The law of limitation relating to the suit for
possession has undergone a drastic change. In terms of
Articles 142 and 144 of the Limitation Act, 1908, it was
obligatory on the part of the plaintiff to aver and plead that
he not only has title over the property but also has been in
possession of the same for a period of more than 12 years.
However, if the plaintiff has filed the suit claiming title
over the suit property in terms of Articles 64 and 65 of the
Limitation Act, 1963, burden would be on the defendant to
prove that he has acquired title by adverse possession.
What is Dispossession
2217. Article 142 contemplates earlier possession before
dispossession or discontinuance thereof. This bring us to
understand the term 'Possession'. It has a variety of meanings. It
is a juristic concept distinct from title and can be independent of
it. It is both physical and legal concept. The concept of
possession implies corpus possession coupled with animus
possidendi. Actual user without animus possidendi is not a
possession in law. In fact, possession is a polymorphous term
having different meanings in different context. It has different
shades of meaning and very elastic in its connotation. We intend
to discuss with the term possession in much detail while
dealing with the issues pertaining to possession/adverse
possession and hence do not intend to elaborate hereat. For the
purpose of the plea of limitation, we shall confine ourselves to
the pleadings and the evidences available to find out its
2222
consequence on the case whether the suit in question is saved
from limitation or not.
2218. The pivotal point to attract Article 142 and to run
limitation is the date of "dispossession" or "discontinuation of
possession". The period of limitation thus would commence, in
a case governed by Article 142, from the date the plaintiff is
dispossessed or discontinued. The two terms ex facie do not
and cannot have the same meaning.
2219. The dictionary meaning of the term dispossession
is:
(A) In Mitra's Legal & Commercial Dictionary 5
th
Edition
(1990) by A.N. Saha, published by Eastern Law House Prv.
Ltd., at pages 232-233:
Dispossession. The term 'dispossession' applies when a
person comes in and drives out others from possession. It
imports ouster; a driving out of possession against the will
of the person in actual possession. This driving out cannot
be said to have occurred when according to the case of the
plaintiff the transfer of possession was voluntary, that is to
say, not against the will of the person in possession but in
accordance with his wishes and active consent. The term
'discontinuance' implies a voluntary act and abandonment
of possession followed by the actual possession of another.
Qadir Bux v. Ramchand AIR 1970 All 289.
Unless the possession of a person prior to his alleged
dispossession is proved, he cannot be said to have been
dispossessed. Rudra Pratap v Jagdish AIR 1956 Pat 116.
(B) In Black's Law Dictionary Seventh Edition (1999),
published by West, St. Paul, Minn., 1999, at page 485:
dispossession Deprivation of, or eviction from,
2223
possession of property; ouster.
(C) In The Judicial Dictionary of Words and Phrases
Judicially Interpreted, to which has been added Statutory
Definitions by F. Stroud Second Edition Vol. 1 (1903), at page
485:
DISPOSSESSION.-Dispossession, or Discontinuance
of Possession, s.3, Real Property Limitation Act, 1833,
means the ABANDONMENT of possession by one entitled
to it (Rimington v. Cannon, 22 L.J. C.P. 153; 12 C. B. 18),
followed by actual possession by another (Smith v. Lloyd,
23 L.J. Ex. 194; 9 Ex. 562: McDonnell v. MeKinty, 10
Ir.L.R. 514); ignorance on the part of the rightful owner
that such adverse possession has been taken making no
difference (Rains v. Buxton, 49 L.J. Ch. 473; 14 Ch. D.
537; 28 W. R. 954).
Acts of user which do not interfere, and are
consistent, with the purpose to which the owner intends to
devote the land, do not amount to Discontinuance of
Possession by him (Leigh v. Jack, 5 Ex. D.264; 49 L. J. Ex.
220); Dispossession involves an animus possidendi with
the intention of excluding the owner as well as other
people (per Lindley, M.R., Littledale vs. Liverpool
College, 69 L.J. Ch. 89, cited DISCONTINUANCE).
SMALL ACTS by the rightful owner will disprove
Dispossession or Discontinuance,- e.g. small repairs
(Leigh v. Jack, sup), or, as regards a boundary wall, an
inscription claiming it (Phillipson vs. Gibbon, 40 L.J. Ch.
406; 6 Ch. 428).
Vh, Watson, Eq. 574, 575; and for a full examination
of the cases on Dispossession and Discontinuance, V.
2224
35 S. J. 715, 742, 750.
(D) In Corpus Juris Secundum A Complete Restatement
of the Entire American Law as developed by All Reported
Cases (1959), Vol. 27, published by Brooklyn, N.Y. The
American Law Book Co., at pages 600-601:
DISPOSSESSION. The act of putting out of possession,
the ejectment or exclusion of a person from the realty, if
not to his injury, then certainly against his interest and
without his consent, ouster.
The term has been held not to imply necessarily a
wrongful act; and, although it has been defined as a wrong
that carries with it the amotion of possession, an act
whereby the wrongdoer gets the actual possession of the
land or hereditament, including abatement, intrusion,
disseisin, discontinuance, deforcement, it has been said
that it may be by right or by wrong, that it is necessary to
look at the intention in order to determine the character of
the act, and that, in this respect, the word is to be
distinguished from disseisin.
(E) In Words and Phrases Legally Defined, Vol. 2 (1969),
published by Butterworth & Co. (Publishers) Ltd., at pages 89-
90:
DISPOSSESSION [A partnership was dissolved, and the
continuing partner, Hudson, agreed, in consideration of an
assignment to him of the partnership property, to pay an
annuity to the retiring partner. In order to carry into effect
this agreement an indenture was entered into and executed
between the parties; and Hudson bound himself to trustees,
in the sum of 2,000, by a bond of even date conditioned to
be void on payment of the annuity or in case he should at
2225
any time after the expiration of the then existing lease, be
dispossessed of and be compelled and obliged to leave and
quit the premises without any collusion, contrivance,
consent, act, or default on his part.] It seems that the
species of dispossession in contemplation was a
compulsory eviction; and they meant to provide that, if
Hudson should be evicted, not through any fault of his own,
he should no longer be burthened with payment of the
annuity . The expulsion intended to be provided for, was
such an expulsion as would leave Hudson no benefit from
the premises. Heyland v. De Mendez (1817), 3 Mer. 184,
per Grant, M.R., at p. 189.
(F) In P Ramanatha Aiyar's The Law Lexicon with Legal
Maxims, Latin Terms and Words & Phrases, Second Edition
1997), published by Wadhwa and Company Law Publishers, at
page 573:
Dispossession. Where the heirs of the deceased could not
realise rent owing to successful intervention of another
person, it must be taken that they were dispossessed.
Dispossession implies ouster, and the essence of ouster
lies in that the person ousting is in actual possession.
Dispossession implies some active element in the
mind of a person in ousting or dislodging or depriving a
person against his will or counsel and there must be some
sort of action on his part.
The word dispossession in the third column of the
article is dispossession by the landlord or by an authorised
agent of the landlord acting within the scope of his
authority.
Dispossession obviously presupposes previous
2226
possession of the person dispossessed. If a person was
never in possession, he will be said to be out of
possession, but he cannot be said to have ever been
dispossessed.
2220. Similarly the meaning of term discontinuance in
various dictionaries is as under:
(A) In The New Lexicon Webster's Dictionary of the
English Language (1987), published by Lexicon Publications,
Inc. at page 270:
Dis-con-tin-u-ance-a discontinuing (law) the
discontinuing of an action because the plaintiff has not
observed the formalities needed to keep it pending
(B) In Mitra's Legal & Commercial Dictionary 5
th
Edition
(1990) by A.N. Saha, published by Eastern Law House Prv.
Ltd., at pages 229:
Discontinuance of Possession. Discontinuance of
possession connotes adandonment of possession by the
owner followed by the taking of possession by another.
Hashim v. Hamidi AIR 1942 Cal 180: 46 CWN 561.
Discontinuance implies a voluntary act and
abandonment of possession followed by the actual
possession of another. Quadir Bux v. Ramchand AIR 1970
All 289.
(C) In Black's Law Dictionary Seventh Edition (1999),
published by West, St. Paul, Minn., 1999, at page 477:
discontinuance 1. The termination of a lawsuit by the
plaintiff; a voluntary dismissal or nonsuit. See Dismissal;
Nonsuit. 2. the termination of an estate-tail by a tenant in
tail who conveys a larger estate in the land than is legally
allowed.
2227
(D) In The Judicial Dictionary of Words and Phrases
Judicially Interpreted, to which has been added Statutory
Definitions by F. Stroud Second Edition Vol. 1 (1903), at page
540-541:
DISCONTINUANCE.- 'Discontinuance' is an ancient
word in the law (Litt. s. 592). A discontinuance of
estates in lands or tenements is properly (in legall
understanding) an alienation made or suffered by tenant in
taile, or by any that is seized in auter droit, whereby the
issue in taile, or the heire or successor, or those in
reversion or remainder, are driven to their action, and
cannot enter (Co. Litt. 325 a). Vf, Termes de la Ley: 3 Bl.
Com. 171.
Discontinuance of POSSESSION, s. 3, 3 & 4 W. 4,
c. 27; V. Leigh v. Jack, 5 Ex. D. 264; 49 L. J. Ex. 220:
Littledale v. Liverpool College, 1900, 1 Ch. 19; 69 L. J. Ch.
87; 81 L.T. 564; 48 W.R. 177.
(E) In Corpus Juris Secundum A Complete Restatement
of the Entire American Law as developed by All Reported
Cases (1956), Vol. 26A, published by Brooklyn, N.Y. The
American Law Book Co., at pages 971-972:
DISCONTINUANCE. The word discontinuance is
defined generally as meaning the act of discontinuing;
cessation; intermission; interruption of continuance.
As defined in Dismissal and Nonsuit; 2, the word
discontinuance means an interruption in the
proceedings of a case caused by the failure of the plaintiff
to continue the suit regularly as he should, and it is either
voluntary or involuntary, and is similar to a dismissal,
nonsuit, or nolle prosequi, but differs from a retraxit.
2228
In a particular connection, it has been held that the
term connotes a voluntary, affirmative, completed act, and
that it cannot mean a temporary nonoccupancy of a
building or a temporary cessation of a business.
The term may be employed as synonymous with
abandonment.
(F). In Words and Phrases Permanent Edition, Vol. 12A
(1954), published by St. Paul, Minn. West Publishing Co., at
pages 276-277:
DISCONTINUANCE-A discontinuance of case is a
gap or chasm in proceeding after suit is pending.
The term discontinuance means voluntary
withdrawal of a suit by a plaintiff.
There exists no essential difference between a
discontinuance and a voluntary nonsuit.
A criminal suit may be discontinued,
discontinuance being a gap or chasm in prosecution
after suit is pending.
The word discontinuance is synonymous with
abandonment, and connotes a voluntary, affirmative,
completed act.
The word discontinuance as it is used in the
ordinance is synonymous with abandonment. It connotes
a voluntary, affirmative, completed act.
Word discontinuance as employed in deed of land
from city to county providing in effect that property was
deeded to county to be used for park purposes and that city
reserved all right of reversion in event of discontinuance of
property for park purposes was equivalent to
abandonment.
2229
Narrowing of street held not discontinuance
within statute requiring written petition as basis for action
by village board.
Discontinuance, generally speaking, is failure to
continue case regularly from day to day and from term to
term from commencement of suit until final judgement.
The word discontinue as used in ordinance,
providing that, if nonconforming use of premises was
discontinued future use should be in conformity with
ordinance, means something more than mere suspension,
and did not mean temporary nonoccupancy of building or
temporary cessation of business, but word
discontinuance as used was synonymous with
abandonment, and connoted voluntary affirmative
completed act. Zoning ordinance did not destroy owner's
right to continue nonconforming use of premises merely
because tenant became insolvent.
(G) In P Ramanatha Aiyar's The Law Lexicon with Legal
Maxims, Latin Terms and Words & Phrases, Second Edition
1997), published by Wadhwa and Company Law Publishers, at
page 562:
Discontinuance. Default; a discontinuance in practice is
the interruption in proceedings occasioned by the failure of
plaintiff to continue the suit from time to time as he ought,
or failure to follow up his case: A break or chasm in a suit
arising from the failures of the plaintiff to carry the
proceedings forward in due course of law.
Discontinuance is either voluntary, as where plaintiff
withdraws his suit or involuntary, as where in consequence
of some technical omission, mispleading, or the like, the
2230
suit is regarded as out of courts, A discontinuance means
no more than a declaration of plaintiff's willingness to stop
the pending action; it is neither as adjudication of his
cause by the proper tribunal nor an acknowledgement by
him that his claim is not will founded.
(H) In Jowitt's Dictionary of English Law Vol. 1 Second
Edition-1977, Second Impression-1990, published by London
Sweet & Maxwell Limited, at pages 621-622:
Discontinuance, an interruption or breaking off. This
happened when he who had an estate tail granted a larger
estate of the land than by law he was entitled to do; in
which case the estate was good so far as his power
extended to make it, but no further (Finch L. 190;1 Co.
Rep. 44).
Formerly, in the law of real property, discontinuance
was where a man wrongfully alienated certain lands or
tenements and dies, whereby the person entitled to them
was deprived of his right of entry and was compelled to
bring an action to recover them,. The term was specially
applied to alienations by husbands seised jure uxoris, by
exxlesiastics seised jure ecclesiae, and by tenants in tail:
thus, if a tenant in tail alienated the land and died leaving
issue, the issue could not enter on the land but was
compelled to bring and action (Litt. 470, 592, 614; Co. Litt.
325A; Termes de la Ley; 3 Bl. Comm. 171).
The principal action appropriate to discontinuance
were formedon, cui in vita, and cui ante divortium. The
effect of discontinuance was taken away by the Real
Property Limitation Act, 1833, s. 39. See Miscontinuaunce;
Recontinuance; Withdrawal.
2231
In the procedure of the High Court discontinuance is
where the plaintiff in an action voluntarily puts an end to it,
either by giving notice in writing to the defendant not later
than fourteen days after service of the defence (R.S.C. Ord.
21, r. 2(1)) or later with leave of the court (r.3). The effect
of discontinuance is that the plaintiff has to pay the
defendant's costs (R.S.C. Ord. 62, r. 10(1)) and any
subsequent action may be stayed until these costs are paid
(R.S.C. Ord. 21, r. 5). A defendant may withdraw his
defence at any time and may discontinue a counterclaim by
notice not later than fourteen days after service of a
defence to the counterclaim (r. 2(2)). A counterclaim may
be discontinued later by leave of the court (r.3). He must
pay the costs of the plaintiff (R.S.C. Ord. 62, r. 5). If all the
parties consent the action may be withdrawn without leave
of the court (r.2(4)).
2221. The term dispossession and discontinuance of
possession in Article 142, Act IX of 1908 came to be
considered before the Calcutta High Court in Brojendra
Kishore Roy Chowdhury (supra) and the Court held:
Dispossession implies the coming in of a person and the
driving out of another from possession. Discontinuance
implies the going out of the person in possession and his
being followed into possession by another.
2222. In Basant Kumar Roy (supra), the Court explained
the term 'dispossession' in Article 142 of Limitation act of 1877:
The Limitation Act, of 1877, does not define the term
dispossession, but its meaning is well settled. A man may
cease to use his land because he cannot use it, since it is
under water. He does not thereby discontinue his
2232
possession : constructively it continues until he is
dispossessed; and, upon the cessation of the dispossession
before the lapse of the statutory period, constructively it
revives. There can be no discontinuance by absence of
use and enjoyment, when the land, is not capable of use
and enjoyment, .... It seems to follow that there can be no
continuance of adverse possession, when the land is not
capable of use and enjoyment, so long as such adverse
possession must rest on de facto use and occupation.
2223. The distinction between dispossession and
discontinuance has been noticed in Gangu Bai Vs. Soni 1942
Nagpur Law Journal 99 observing that dispossession is not
voluntary, discontinuance is. In dispossession, there is an
element of force and adverseness while in the case of
discontinuance, the person occupying may be an innocent
person. For discontinuance of possession, the person in
possession goes out and followed into possession by other
person.
2224. In Agency Company Vs. Short, 1888 (13) AC 793
the Privy Council observed that there is discontinuance of
adverse possession when possession has been abandoned. The
reason for the said observation find mention on page 798 that
there is no one against whom rightful owner can bring his
action. The adverse possession cannot commence without actual
possession and this would furnish cause of action.
2225. Dispossession is a question of fact. The term refers
to averments in the plaint exclusively and cannot be construed
as referring to averments in the plaint in the first instance and at
a later stage to the finding on the evidence. The indicias of
discontinuance are also similar to some extent. It implies going
2233
out of the person in possession and is being followed into
possession by another. In Abdul Latif Vs. Nawab Khwaja
Habibullah 1969 Calcutta Law Journal 28, the Court observed
that discontinuance connotes three elements i.e. actual
withdrawal, with an intention to abandon, and another stepping
in after the withdrawal. Same is the view taken by this Court
and Kerala High Court in Qadir Bux Vs. Ram Chandra AIR
1970 Alld. 289 (FB) and Pappy Amma Vs. Prabhakaran Nair
AIR 1972 Kerala 1 (FB).
2226. In order to wriggle out of the limitation prescribed
under Article 142 of the Limitation Act, it has to be shown by
the plaintiff that he was in possession of the disputed land,
within 12 years of the suit and has been dispossessed, as
observed by the Apex Court in Sukhdev Singh Vs. Maharaja
Bahadur of Gidhaur (supra).
2227. In Wahid Ali & another Vs. Mahboob Ali Khan
AIR 1935 Oudh 425, referring to Article 142 of Limitation Act,
1908 the Court held where the plaintiff or the Muslim
community whom they represent were dispossessed from the
land in question belonging to the graveyard by the erection of a
house thereon and the suit is filed after 12 years therefrom, it
would be barred by Article 142 of the Limitation Act.
2228. In R.H.Bhutani Vs. Miss Mani J. Desai AIR 1968
SC 1444, the Court said that dispossession means to be out of
possession, removed from the premises, ousted, ejected or
excluded. It applies when a person comes in and drives out
others in possession.
2229. In Shivagonda Subraigonda Patil Vs. Rudragonda
Bhimagonda Patil 1969 (3) SCC 211, the Court held that
dispossession for the purpose of this Article must be by the
2234
defendant and that must be the basis of the suit. If there is no
dispossession by the defendant, this Article would have no
application. The dispossession, therefore, implies taking
possession without consent of the person in possession and is a
wrong to the person in possession. It must result in termination
of possession of the person in possession earlier.
2230. Application of Article 142 and 144 of L.A. 1908
was considered in Jamal Uddin and (supra) and in para 29 the
Court said:
29. The next point that was urged by the counsel
for the appellants was that the courts below committed a
legal error in applying Art. 144 of the Limitation Act, 1908,
to the suit and placing the burden on the defendants to
prove their adverse possession for more than twelve years,
while the suit on the allegations contained in the plaint
clearly fell within the ambit of Art. 142 and the burden was
on the plaintiffs to prove their possession within twelve
years. This contention also is quite correct. It was clearly
alleged by the plaintiffs that they had been dispossessed by
the contesting defendants before the filing of the suit. As
such, the suit would be governed by Article 142 and the
residuary Article 144 will have no application. The courts
below have unnecessarily imported into their discussion
the requirements of adverse possession and wrongly placed
the burden on the defendant to prove those requirements.
Now the trial Court has approached the evidence produced
by the parties would be evident from the following
observation contained in its judgment.
The onus of proving adverse possession over the
disputed land lies heavily upon the defendants and their
2235
possession has to be proved beyond doubt to be notorious,
exclusive, openly hostile and to the knowledge of the true
owner as laid down in AIR 1938 Mad 454.
After a consideration of the documentary and oral evidence
produced by the defendants to prove their possession the
trial Court has opined that the document on record do not
prove the title and possession of the defendants to the hilt
in respect of the disputed land. So far as the plaintiffs'
evidence is concerned it was disposed of by the trial Court
with the following observations:
. . . . . .No doubt, the oral evidence of the plaintiffs
about the use of the land for saying the prayers of 'Janaze
Ki namaz' and about the letting out of the land in suit for
purposes of 'D or Sootana' is equally shaky and
inconsistent. But as already pointed out above the plaintiffs
have succeeded in proving their title over the disputed land
and as such possession would go with the ownership of the
land. The defendants cannot be allowed to take advantage
of the plaintiffs foulty evidence and it was for them to prove
beyond any shadow of doubt that they were actually in
possession over the disputed land as owners and that they
exercised this right openly hostile to the plaintiffs with the
latter's knowledge. Judged in this context, the evidence of
the defendant falls short of this requirement.
2231. The learned counsel for the Pro-Mosque parties as
well as Nirmohi Akhara sought to argue that since the property
in dispute was attached by the Magistrate under Section 145
Cr.P.C. and this attachment continued, the question of
dispossession by an individual private party as such may not
arise or of no consequence. The Magistrate was not handing
2236
over possession to the rightful owner, it gave a (fresh) cause of
action, which was continuing and hence Articles 142 or 144 or
even 120 need not be gone into in these cases.
2232. This require us to have a bird eye view not only of
Section 145 Cr.P.C., its connotation, implication, scope and
consequences in the matter. What is evident from record is that
the property in dispute, as specified in Suit-4, was not in its
entirety placed under attachment.
2233. The case of the plaintiffs (Suit-4) is that in the night
of 22
nd
/23
rd
December, 1949 some Hindu people surreptitiously
placed the idols inside the disputed building under the central
dome and thereby interferred and obstructed the right of worship
of the Muslim parties. It is admitted by almost all the witnesses
of the plaintiffs (Suit-4) that on and after 23
rd
December 1949,
no Muslim has entered the disputed premises and no Namaz has
been offered therein. In fact, this is what has been the case set
out by the plaintiffs, as is evident from para 11 of the plaint,
which reads as under:
"That the Muslims have been in peaceful possession
of the aforesaid mosque and used to recite prayer in it, till
23.12.2949."
2234. The possession of the parties of the inner courtyard
thereafter was disturbed inasmuch on 29
th
December, 1949, the
City Magistrate passed an order under section 145 Cr.P.C.
attaching the property due to apprehension of breach of peace
and appointed Receiver giving in his possession a part of the
disputed property, i.e., the inner courtyard which, in fact, was
taken in charge by Receiver, Priya Dutt, on 5
th
January, 1950.
2235. Nirmohi Akhara has claimed that the possession of
the outer courtyard remained with them, as it was earlier, till
2237
1982, when in some other suit between the people of Nirmohi
Akhara, the same was also attached and placed in the hands of a
Receiver. It has also been said that infact the same Receiver was
given charge, who was already having the charge of the
premises in the inner courtyard. These facts we find have not
been disputed by any of the parties and in fact there is nothing
on record to contradict it.
2236. It would thus appropriate first to consider Section
145 Cr.P.C., 1898 as it stood in 1949-50 when the proceedings
were initiated thereunder.
2237. Section 145 Cr.P.C., 1898, as it stood then, i.e., prior
to its amendment by Amendment Act, 1955, was as under:
"145. (1) Whenever a District Magistrate, Sub-Divisional
Magistrate or Magistrate of the first class is satisfied from
a police report or other information that a dispute likely to
cause a breach of the peace exists concerning any land or
water or the boundaries thereof, within the local limits of
his jurisdiction, he shall make an order in writing, stating
the grounds of his being so satisfied, and requiring the
parties concerned in such dispute to attend his Court in
person or by pleader, within a time to be fixed by such
Magistrate, and to put in written statements of their
respective claims as respects the fact of actual possession
of the subject of dispute.
(2) For the purposes of this section the expression
"land or water" includes building, markets, fisheries, crops
or other produce of land, and the rents or profits of any
such property.
(3) A copy of the order shall be served in manner
provided by this Code for the service of a summons upon
2238
such person or persons as the Magistrate may direct, and
at least one copy shall be published by being affixed to
some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to
the merits or the claims of any of such parties to a right to
possess the subject of dispute, peruse the statements so put
in, hear the parties, receive all such evidence as may be
produced by them respectively, consider the effect of such
evidence, take such further evidence (if any) as he thinks
necessary, and, if possible, decide whether any and which
of the parties was at the date of the order before mentioned
in such possession of the said subject:
Provided that, if it appears to the Magistrate that any
party has within two months next before the date of such
order been forcibly and wrongfully dispossessed, he may
treat the party so dispossessed as if he had been in
possession at such date:
Provided also, that if the Magistrate considers the
case one of emergency, he may at any time attach the
subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party
so required to attend, or any other person interested, from
showing that no such dispute as aforesaid exists or has
existed; and in such case the Magistrate shall cancel his
said order, and all further proceedings thereon shall be
stayed, but subject to such cancellation, the order of the
Magistrate under sub-section (1) shall be final.
(6) If the Magistrate decides that one of the parties
was or should under the second proviso to sub-section (4)
be treated as being in such possession of the said subject,
2239
he shall issue an order declaring such party to be entitled
to possession thereof until evicted therefrom in due course
of law, and forbidding all disturbance of such possession
until such eviction and when he proceeds under the second
proviso to sub-section (4), may restore to possession the
party forcibly and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the
Magistrate may cause the legal representative of the
deceased party to be made a party to the proceeding and
shall thereupon continue the inquiry, and if any question
arises as to who the legal representative of a deceased
party for the purpose of such proceeding is, all persons
claiming to be representatives of the deceased party shall
be made parties thereto.
(8) If the Magistrate is of opinion that any crop or
other produce of the property, the subject of dispute in a
proceeding under this section pending before him, is
subject to speedy and natural decay, he may make an order
for the proper custody or sale of such property, and, upon
the completion of the inquiry, shall make such order for the
disposal of such property, or the sale-proceeds thereof, as
he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage
of the proceedings under this section, on the application of
either party, issue a summons to any witness directing him
to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in
derogation of the powers of the Magistrate to proceed
under section 107."
2238. The nature of the proceedings under Section 145
2240
Cr.P.C. are not judicial. The Magistrate is not supposed to deal
with the matter as if it is a Civil Suit. A party to a proceeding
under Section 145 is not in a position of a plaintiff in a Civil
Suit who has set the Court in motion and has a right to require a
decision upon the questions raised by him.
2239. Privy Council in Dinomoni Chowdhrani & Brojo
Mohini Chowdhrani 29 IA 24 (PC) observed that the
proceedings under Section 145 do not constitute a trial and are
not in the nature of a trial. They are in the nature police
proceedings in order to prevent the commission of offence. The
nature of the proceedings under Section 145 Cr.P.C. has been
described in different terms like quasi-civil (Bande Ali Vs.
Rejaullah 25 Cr.L.J. 303), quasi-executive (Madho Kunbi Vs.
Tilak Singh AIR 1934 Nagpur 194), quasi-judicial
(Muhammad Araf Vs. Satramdas Sakhimal & others AIR
1936 Sind 143), quasi-criminal (K.S. Prahladsinhji Vs.
Chunilal B. Desai AIR 1950 Saurashtra 7).
2240. The object of section is merely to prevent breach of
peace by maintaining one or the other of the parties in
possession and where it is not possible to place any of the
parties in possession, to appoint Receiver and to take the
property in the custody of the Court, i.e., custodia legis. These
proceedings are not to protect or maintain any body in
possession (Musammat Phutania Vs. Emperor 25 Cr.L.J.
1109).
2241. In Doulat Koer Vs. Rameshwari Koeri alias Dulin
Saheba (1899) ILR 26 Cal. 635, the Court said that this Section
is to enable a Magistrate to intervene and pass a temporary order
in respect to the possession of the property in dispute having
effect until the actual right of one of the parties is determined by
2241
any competent Court in more lengthy proceedings. In order to
attract proceedings under Section 145, Lahore High Court in
Agha Turab Ali Khan Vs. Shromani Gurdwara Parbandhak
Committee AIR 1933 Lahore 145 has said that the power or
competency of the Magistrate to interfere depends on the very
fact that the possession of the land is in dispute. The dispute
means actual disagreement, struggle, scramble or quarrel for
possession of the land existent between the disputants at the
time of proceedings with reference to the merits of their
respective claim to possess the land. It is nobody's case that such
proceedings were not initiated or that the same were initiated
wrongly or that the procedure prescribed thereof under the
statute was not followed.
2242. The order dated 29.12.1949 is a preliminary order
referable to Section 145 Sub-section (1) read with Sub-section
(4) second proviso. It is an admitted position by all the parties
that the Receiver appointed by Magistrate took the possession of
the property and such possession continued till it was replaced
by the statutory Receiver under the Act of 1993. It is pointed out
that when a Receiver is appointed by the Court, his possession is
the possession of the Court. He is Officer through whom the
Court exercises its power of management. Such an officer
cannot be correctly described as party interested in the dispute
likely to cause a breach of peace. No final order in the case in
hand could be passed by the Magistrate. It appears that on
16.1.1950 an injection order was passed by the Civil Judge in
Suit-1. The aforesaid order was modified on 19.1.1950 and the
modified order was confirmed by the Civil Judge as well as this
Court on 26.04.1955.
2243. Despite filing of the civil suit and injunction order
2242
passed therein, the City Magistrate could not drop the
proceedings and passed an order for deferring the said
proceedings. Sri Jilani & Siddiqui, learned counsels for the
plaintiffs have castigated the said approach of the Magistrate
stating that he ought to have passed final order in one or the
other manner or should have dropped the proceedings but by
keeping the matter pending, parties were left in lurch, and
therefore, for such a situation created by City Magistrate, the
plaintiffs' suit cannot be held barred by limitation and it should
be deemed that every order passed by the City Magistrate
resulted in a fresh cause of action for filing civil suit by the
plaintiffs.
2244. We however, find it difficult to agree. From perusal
of injunction order passed by the Civil Court, we find that on
16
th
January, 1950 a simple order, in terms of the prayer made in
the interim injunction application, was passed directing the
parties to maintain status quo. Thereafter on 19
th
January, 1950,
the order was modified but the Civil Court did not appoint a
Receiver of its own and also did not direct the City Magistrate
to get the possession transferred to any other person or another
Receiver of the Court instead of the Receiver appointed by the
Magistrate. On the contrary, in Suit-1, the City Magistrate was
also impleaded as one of the defendant and the Civil Court
passed an order directing the defendants to maintain status quo.
It also clarified that the Sewa, Puja as was going on, shall
continue. Quite visible, the Magistrate could not have ignored
this order by dropping the proceedings as that would have
resulted in discharge of Receiver and release of the property
attached and placed in his charge. In other words, it could have
construed by the Civil Judge as an order disobeying the order of
2243
statue quo. Had the Civil Judge passed an order appointing a
Court's Receiver and directing the Magistrate to hand over
possession of the property to him, the position might have been
different. In these circumstances, if the Magistrate did not drop
the proceedings but deferred it, we find no fault on his part.
Moreover, when the earlier order of the Magistrate, attaching
the property and placing it in the charge of Receiver, could not
have resulted in giving a cause of action to the plaintiffs to file
suit, we failed to understand as to how the subsequent order,
which merely deferred the pending proceedings, would lend any
help. The order of attachment passed by the Magistrate itself
does not given a cause of action and on the contrary it only
make the things known to the party that there appears to be
some dispute about the title and/or possession of the property
concerned and also there is apprehension of disturbance of
public peace and order. The cause of action virtually is known
to the party that there exist some dispute and not the order of the
Magistrate whereby he attached the property in question and
placed it in the charge of the Receiver.
2245. We find that in the context of Section 145 Cr.P.C.,
1973, a three-Judge Bench of the Apex Court in Amresh Tiwari
Vs. Lalta Prasad Dubey & another 2000 (4) SCC 440
following an earlier decision in Ram Sumer Puri Mahant Vs.
State of U.P. and others 1985 (1) SCC 427 said:
"12. The question then is whether there is any
infirmity in the order of the S.D.M. dicontinuing the
proceedings under Section 145 Criminal Procedure Code.
The law on this subject-matter has been settled by the
decision of this Court in the case of Ram Sumer Puri
Mahant v. State of U.P., reported in, (1985) 1 SCC 427 :
2244
(AIR 1985 SC 472 : 1985 Cri LJ 752). In this case it has
been held as follows:
"When a civil litigation is pending for the property
wherein the question of possession is involved and has
been adjudicated, we see hardly any justification for
initiating a parallel criminal proceeding under Section
145 of the Code. There is no scope to doubt or dispute
the position that the decree of the civil court is binding
on the criminal Court in a matter like the one before us.
Counsel for respondents 2-5 was not in a position to
challenge the proposition that parallel proceedings
should not be permitted to continue and in the event of a
decree of the civil Court, the Criminal Court should not
be allowed to invoke its jurisdiction particularly when
possession is being examined by the civil court and
parties are in a position to approach the Civil Court for
interim orders such as injunction or appointment of
receiver for adequate protection of the property during
pendency of the dispute. Multiplicity of litigation is not
in the interest of the parties nor should public time be
allowed to be wasted over meaningless litigation. We
are, therefore, satisfied that parallel proceedings should
not continue."
13. We are unable to accept the submission that
the principles laid down in Ram Sumers case (AIR 1985
SC 472 : 1985 Cri LJ 752) would only apply if the civil
Court has already adjudicated on the dispute regarding
the property and given a finding. In our view Ram
Sumers case is laying down that multiplicity of litigation
should be avoided as it is not in the interest of the parties
2245
and public time would be wasted over meaningless
litigation. On this principle it has been held that when
possession is being examined by the civil Court and parties
are in a position to approach the civil Court for adequate
protection of the property during the pendency of the
dispute, the parallel proceedings i.e. Section 145
proceedings should not continue.
14. Reliance has been placed on the case of
Jhummamal alias Devandas v. State of Madhya Pradesh
reported in, (1988) 4 SCC 452 : (AIR 1988 SC 1973 : 1989
Cri LJ 82). It is submitted that this authority lays down that
merely because a civil suit is pending does not mean that
proceedings under Section 145, Criminal Procedure Code
should be set at naught. In our view this authority does not
lay down any such broad proposition. In this case the
proceedings under Section 145, Criminal Procedure Code
had resulted in a concluded order. Thereafter the party,
who had lost, filed civil proceedings. After filing the civil
proceedings he prayed that the final order passed in the
Section 145 proceedings be quashed. It is in that context
that this Court held that merely because a civil suit had
been filed did not mean that the concluded order under
Section 145 Criminal Procedure Code should be quashed.
This is entirely a different situation. In this case the civil
suit had been filed first. An Order of status quo had
already been passed by the competent civil Court.
Thereafter Section 145 proceedings were commenced. No
final order had been passed in the proceedings under
Section 145. In our view on the facts of the present case the
ratio laid down in Ram Sumers case (AIR 1985 SC 472 :
2246
1985 Cri LJ 752) (supra) fully applies. We clarify that we
are not stating that in every case where a civil suit is
filed. Section 145 proceedings woud never lie. It is only
in cases where civil suit is for possession or for declaration
of title in respect of the same property and where reliefs
regarding protection of the property concerned can be
applied for and granted by the civil Court that proceedings
under Section 145 should not be allowed to continue.
This is because the civil court is competent to decide the
question of title as well as possession between the parties
and the orders of the civil Court would be binding on the
Magistrate."
2246. In Sadhuram Bansal Vs. Pulin Behari Sarkar and
others 1984 (3) SCC 410, a three-Judge Bench of theApex
Court observed in para 62, that the pendency of the proceeding
under Section 145 Cr.P.C. and order, if any, passed thereon does
not in any way affect the title of the parties to the disputed
premises though it reflects the factum of possession. It followed
an earlier decision in Bhinka and others Vs. Charan Singh
(supra).
2247. The provision as existed in Cr.P.C. in 1989 before
its amendment in 1955 though went under some change in 1955,
but it appears that under the new Cr.P.C., 1973 Section 145 is
virtually same as was before 1955 amendment. This has been
noticed by the Apex Court in Mathura Lal Vs. Bhanwar Lal
and another 1979 (4) SCC 665 as under:
"The provisions of Sections 145 and 146 of the 1973
Code are substantially the same as the corresponding
provisions before the 1955 amendment. The only noticeable
change is that the second proviso to Section 145 (4) (as it
2247
stood before the 1955 amendment) has now been
transposed to Section 146 but without the words "pending
his decision under this Section" and with the words "at any
time after making the order under Section 145(1)" super-
added. The change, clearly, is in the interests of convenient
draftsmanship. ..."
2248. The above discussion, in our view, would show that
the proceedings under Section 145 Cr.P.C. and the orders passed
therein would not help the plaintiffs in the matter of limitation
particularly when it is virtually admitted in the plaint that they
discontinued with possession at least from 23
rd
December, 1949.
It is their own version and this disturbance is on account of a
title dispute of the property in question. Moreover, all the
plaintiffs do not claim themselves to be the owner of the
property in question or the legal custodian thereof. None of the
plaintiffs is claimed to be Mutwalli of the alleged waqf. It is
only a Mutwalli of a waqf who can claim possession of the
property in question according to Islamic Law. However, no
such person is before us seeking the relief of possession or to
seek a declaration in his capacity as Mutwalli. Plaintiffs No.1
Sunni Central Waqf Board is a supervisory controlling body of
the Sunni Waqfs in the State of U.P. but on its own has no
power to claim possession or custody of any waqf. At least no
such provision has been shown. The other individual plaintiffs
claimed themselves to be the worshippers i.e. the beneficiaries
of the alleged waqf. If there is any obstruction in the right of
worship of an individual, he can come to the Court for
protection of such right of worship but cannot claim possession
of such property since he is neither owner nor legal custodian of
the property. Similarly, right of worshipper is confined for the
2248
period the subject matter is in existence and vanishes as soon as
the right of the owner or that of legal custodian goes or the
subject matter disappear, as observed in the case of Masjid
Shahid Ganj (Supra).
2249. Had it been a suit for a mere injunction for protection
of right of worship, something might have been said, but no
such relief has been sought by the plaintiffs in the case in hand
and we cannot read a prayer which is neither incidental nor
otherwise connected but totally different to the real prayer made
in the suit. The effect of the property being attached by the
Magistrate shall neither result in extension of limitation for the
plaintiffs nor in exclusion of certain period for the purpose of
limitation to some extent or to the extent of the period the
property remain under attachment or in any other manner.
2250. We may consider whether the effect of the property
being attached by the Magistrate will give any benefit to the
plaintiffs either for extension of limitation or for excluding some
period for the purpose of limitation to some extent or to the
extent the property remained under attachment or in any other
manner can help.
2251. Where one person claims to be in possession to the
exclusion of others and alleges that some other person seeks
unlawfully or by force to interfere with his possession and if it is
likely to lead to a breach of peace, it will be justifiable and
necessary for a Magistrate to take action under Section 145(1)
Cr.P.C., (in the present case Cr.P.C. of 1898). Such an order
passed is only a police order and in no sense is a final one. The
possession contemplated under Section 145 is actual physical
possession on the subject matter. The possession, so taken over
by Receiver, appointed by a criminal Court after attachment,
2249
merely passes the property into custodia legis and is not
dispossession within the meaning of Article 142 of L.A. 1908,
as observed in Pappy Amma (supra). The legal possession of
the land attached, for the purpose of limitation, will be
constructively with the person who was entitled to the property
at the date of attachment. Magistrate cannot be regarded as
having dispossessed either party and he cannot legally be made
a party to the suit of either of the claimants.
2252. It is submitted that since no final order has been
passed by the Magistrate so far, there is no question of
limitation applying in this case and, therefore, it cannot be
pleaded that the suit is barred by limitation under any of the
provisions of L.A. 1908. Article 142 and 144 would not apply.
Let us examine the legal position when the property is attached.
2253. The possession of the part of the property (the inner
courtyard of the disputed premises) was placed with a Receiver
by an order of City Magistrate passed under section 145 Cr.P.C..
At the time when the suit was filed the possession was not with
any adversary but in the hands of a statutory authority who has
been held to possess the property on behalf of real owner.
2254. In Everest Coal Company Pvt. Ltd. Vs. State of
Bihar and others, 1978 (1) SCC 12 though in a different
context, expressing its opinion on the status/capacity of receiver
appointed by the Court, the Apex Court said, when a court puts
receiver in possession of a property, the property comes under
court's custody, the receiver being merely an officer/agent of the
Court. It further says that receiver represents neither party
being an officer of the Court.
2255. In Rajah of Venkatagiri Vs. Isakapalli Subbiah &
others (supra), the Madras High Court held, if a suit is filed for
2250
declaration of title to immovable property, Article 142 of the
Second Schedule to Act XV of 1877 would not be attracted. But
where a suit for possession is filed by a person who was earlier
in possession and was dispossessed or discontinued of
possession, it would be governed by Article 142. However, it
was further clarified where the property has been attached by a
Magistrate under Section 145, Article 142 will not be attracted
since the Magistrate cannot be regarded as having dispossessed
either parties or that has discontinued possession thereof. The
Nature of attachment by Magistrate vis-a-vis possession of the
property is explained as under :
Under section 146, Criminal Procedure Code, the
Magistrate is bound to continue the attachment and have
statutory possession of the lands for purposes of continuing
the attachment until a competent Civil Court determines
the rights of the parties to the dispute before him or the
person entitled to the possession of the lands and he cannot
deliver the property to any of the parties or other person
without an adjudication by a Civil Court. During the
continuance of the attachment, the legal possession for
purposes of limitation will constructively be in the person
who had the title at the date of the attachment and such
title cannot be extinguished by the operation of section 28
of the Limitation Act, however, long such attachment may
continue.
2256. The Court also held that to commence limitation or
whether a cause of action is a continuing one, the criteria would
be whether the wrong is a continuing one and not whether
the right is a continuing one. It reiterated the view that
attachment of property does not amount to either dispossession
1
2251
of owner or discontinuance of his possession.
2257. In Yeknath Vs. Bahia (supra) the Nagpur High
Court said where the property in dispute has been attached by
Magistrate under Section 146 Cr.P.C., the right to sue accrued
when the attachment was made and the limitation would begin
to run under Section 23 after the date of attachment by the
Magistrate. The Court said:
. . . . . what led the Magistrate to take possession is
that it was either his inability to decide who was in actual
possession or his decision that neither party was in
possession. Neither of these can be said to be a wrong by
the defendant. . . . . . In the circumstances of these cases it
is the attachment by the Magistrate and not any wrongful
act of the defendants that gave rise to the right to sue and
the right accrued when the attachment was made. In this
view no fresh period of limitation began to run under S. 23
of the Limitation Act after the date of the attachment by the
Magistrate in 1908. (page 236)
2258. In Abinash Ch. Chowdhury Vs. Tarini Charan
Chowdhury and others (supra) the Calcutta High Court said:
In the case of Ismail Ghani Ammal Vs. Katima
Rowther, (1912) 22 MLJ 154 the Madras High Court, in
dealing with a case in which a Receiver had been
appointed prior to the institution of proceedings under S.
145, Criminal P.C., held that the possession of the Receiver
may, for the purpose of S. 145, Criminal P.C., be properly
regarded as possession on behalf of the party who should
be ultimately found by the Magistrate to be in possession
immediately before the date of his appointment, as, for the
purpose of limitation, the possession of the Receiver is held
2252
to be the possession of the party entitled to possession. . . . .
. In the case of Rajah of Venkatagiri Vs. Isakapalli
Subbiah, (1903) 26 Mad 410 it was held that an attachment
under S. 146, Criminal P.C., operated in law for purposes
of limitation, simply as a detention of custody, pending the
decision by a civil Court, on behalf of the party entitled,
and for such purposes the seisin or legal possession was,
during the attachment, in the true owner. It was observed
that:
such attachment operates in law for the purposes of
limitation simply as detention or custody of the property by
the Magistrate, who, pending the decision by a civil Court
of competent jurisdiction, holds it merely on behalf of the
party entitled, whether he be one of the actual parties to the
dispute before him or any other person. For the purposes
of limitation the seisin or legal possession will, during the
attachment, be in the true owner and the attachment by the
Magistrate will not amount to dispossession of the owner
or to his discontinuing possession. (page 784)
In Brojendra Vs. Bharat Chandra, AIR 1916 Cal 751,
it was held that during an attachment under S. 146,
Criminal P.C., the seisin or legal possession is in the true
owner and that the attachment does not amount to either
dispossession of the owner or the discontinuance of his
possession. The learned Judges in that case relied for their
conclusion upon the decision of the Judicial Committee in
the case of Khagendra Narain Chowdhury Vs. Matangini
Debi, (1890) 17 Cal 814 in which the attachment under the
530
th
and 531
st
section of the Code of 1872 was considered
as placing the Government really in the position of stake-
2253
holders, the decision in the case of Ramaswami Vs.
Muthusamy, (1907) 30 Mad 12, to which reference has
already been made, the decision in the case of Beni Prasad
Vs. Shahjada, (1905) 32 Cal 856, in which the possession
of the Magistrate after attachment under S. 146 was held to
be one on behalf of such of the rival parties as might
establish a right to possession on their own account and
the decision of the Judicial Committee in the case of Karan
Singh Vs. Bakar Ali Khan, (1882) 5 All 1 in which the
possession of the Government in the Revenue Department
of land which had been attached by the Collector to secure
payment of revenue which has been endangered in
consequence of disputes relating thereto was considered to
be possession not adverse to the owner though the
Collector had subsequently paid over the surplus proceeds
of the estate to a stranger. Reliance also was placed in that
decision upon the principles deducible from the decisions
of the Judicial Committee in the case of Trustees and
Agency Company Vs. Short, (1888) 13 AC 798 and
Secretary of State Vs. Krishna Mani Gupta, (1902) 29 Cal
518 and the observations of Baron Parke in Smith Vs.
Lloyd, (1854) 9 Ex 562. The same view was taken of the
effect of an attachment under S. 146, Criminal P.C. In a
later decision of this Court in the case of Sarat Chandra
Maiti Vs. Bibhabati Debi, AIR 1921 Cal 584, in which it
was observed that the authority of the decision in the case
of Deonarain Vs. Webb, (1900) 28 Cal 86 in which the
plaintiff had been dispossessed from his raiyati lands and
subsequent to such dispossession there was an attachment
under S. 146, Criminal P.C., and it was held that the
2254
plaintiff was not entitled to have a fresh start of limitation
from the date of the attachment, as he had already been
dispossessed before that date, must be considered as
shaken by the decision of the Judicial Committee in the
case of Secretary of State Vs. Krishna Mani, (1902) 29
Cal 518. The intervention of public authorities for the
preservation of peace was considered as operating in the
same way as the vis major of floods and by analogy it was
held that the constructive possession of the land after such
intervention remains, if anywhere, in the true owner.
(Page 784-785)
The purposes of the two attachments, one under the
proviso to Cl. (4) of S. 145 and the other under S. 146,
Criminal P.C., are different, and the stakes are not the
same. In the case of the former, the attachment subsists
till the decision under S. 145, Cl. (4), that is to say, till it
is decided which party was in possession at the date of
the proceedings; in the latter case it lasts until a
competent Court has determined the rights of the parties
or the person entitled to possession. It may be that an
attachment under S. 145, Cl. (1) may terminate on the
proceedings being dropped or attachment under S. 146,
Criminal P.C., may be withdrawn when the Magistrate is
satisfied that there is no longer any likelihood of a breach
of the peace; but that does not affect the character of the
attachments. The objects of the two attachments are
obviously different. The possession in the case of the one
enures to the benefit of the party who was in possession at
the date of the proceedings and in the case of the other to
the party or to any person, either a party to the
2255
proceedings or not, who may be adjudged, on the basis of
his rights to be entitled to possession. Proceedings under
Ch. 12, Criminal P.C. are of a quasi civil character and the
Magistrate intervenes and attaches the property much on
the same lines and with a similar purpose as when a
Receiver is appointed by the Court in a civil action, in
order to prevent a scramble and to preserve the property
until the rights of the parties are ascertained. The
possession of a Receiver appointed under such
circumstances is exclusively the possession of the Court,
the property being regarded as in the custody of the law in
gremio legis for the benefit of whoever may be ultimately
determined to be entitled thereto. The object of proceedings
under S.145, Criminal P.C., being to determine which
party was in possession at the date of the proceedings and
to declare such party to be entitled to retain possession, the
possession of the Court during attachment in the course of
those proceedings should enure for the benefit of such
party in whose favour such a declaration is made. The
object of an attachment under S. 146, Criminal P.C., is to
hold the property in anticipation of an action in which the
right or title to possession is to be declared by a competent
Court and the possession of the Court during such
attachment should enure for the benefit of the party or
person in whose favour a competent Court would make
such a declaration. (Page 785-786)
The rightful owner may not be a party to the
action, in which case time will run against him, but not
in his favour.
For the foregoing reasons, in our judgment, the
2256
common manager and not the plaintiffs must be treated as
having been in possession during the attachment under S.
145, Cl. (4), Criminal P.C., and consequently the plaintiffs'
suit is barred by limitation. (Page 786)
2259. With reference to Receiver's possession and
application of Article 144 L.A. 1908, in P. Lakshmi Reddy Vs.
L. Lakshmi Reddy, AIR 1957 SC 314 the Apex Court
considered the nature of Receiver's possession. It referred to
Woodroffe on the Law relating to Receivers (4
th
Edition) at page
63 stating, The Receiver being the officer of the Court from
which he derives his appointment, his possession is exclusively
the possession of the Court, the property being regarded as in the
custody of the law, in gremio legis, for the benefit of whoever
may be ultimately determined to be entitled thereto.
2260. The Apex Court said further in para 6 of the
judgement:
A Receiver is an officer of Court and is not a
particular agent of any party to the suit, notwithstanding
that in law his possession is ultimately treated as
possession of the successful party on the termination of the
suit. To treat such Receiver as plaintiffs agent for the
purpose of initiating adverse possession by the plaintiff
would be to impute wrong-doing to the Court and its
officers. The doctrine of the Receiver's possession being
that of the successful party cannot, in our opinion, be
pushed to the extent of enabling a person who was initially
out of possession to claim the tacking on of Receiver's
possession to his subsequent adverse possession. The
position may conceivably be different where the defendant
in the suit was previously in adverse possession against the
2257
real owner and the Receiver has taken possession from him
and restores it back to him on the successful termination of
the suit in his favour.
2261. In Deo Kuer Vs. Sheo Prasad (supra) AIR 1966
SC 359 the Court observed that the property in attachment under
Section 145 Cr.P.C. would mean that it is "custodia legis".
Where the property is custodia legis it would mean that it is not
in possession of any private individual and, therefore, there is no
need to seek a relief of restoration of possession in a suit filed
by the affected party but a simple suit for declaration of title
would be sufficient. In Deo Kuer (supra) the Apex Court has
further held that when the property is under attachment under
Section 145 Cr.P.C. no relief for delivery of possession need be
sought but the suit ought to be filed only for declaration of title
for the reason that the property being in custodia legis no
defendant would be in a position to deliver the same to the
plaintiff but when a declaration of title is made, the natural
consequences would follow. In para 4 of the judgement the
Apex Court held:
In our view, in a suit for declaration of title to
property filed when it stands attached under S. 145 of the
Code, it is not necessary to ask for the further relief of
delivery of possession.
2262. Further the Court held that the Magistrate hold
possession during the period of attachment on behalf of the
party who ultimately is found entitled for possession. The Apex
Court in Deo Kuer (Supra) followed and approved Madras
High Court's decision in K. Sundaresa Iyer Vs. Sarvajana
Sowkiabi Virdhi Nidhi Ltd., AIR 1939 Madras 853 and Privy
Council decision in Humayun Begam Vs. Shah Mohammad
2258
Khan, AIR 1943 PC 94 and Sunder Singh Mallah Singh
Sanatan Dharm High School Trust Vs. Managing Committee,
AIR 1938 PC 73 but overruled the Patna High Court's decision
in Dukham Ram Vs. Ram Nanda Singh, AIR 1961 Pat. 425.
2263. Ases Kumar Misra & others Vs. Kissori Mohan
Sarkar & others AIR 1924 Cal. 812 has been relied on to claim
that a decision of the Civil Court, if not inter parties, can be
relied on by the Magistrate to pass an order for delivery of
possession under Section 145/146 Cr.P.C. Therein, a suit was
filed for recovery of some money wherein the ownership rights
with respect to some part of the immovable property was also
considered. The Civil Court passed an order on the same issue.
Later on, the immovable property itself became subject matter
of a dispute between one of the parties in the suit and another.
The Magistrate initiated proceedings under Section 145 Cr.P.C.
And placed the property under attachment. Thereafter, relying
on the decision of the Civil Court, it passed an order under
Section 146 Cr.P.C. for delivery of possession to the party in
whose favour the Civil Court decided the issue with respect to
the ownership. It was contended that since others were not party
in earlier proceedings, the earlier judgment of the Civil Court is
not binding on them and, therefore, it would not have been
relied by the Magistrate. Rejecting this argument, the Division
Bench held that even though a Civil Court's judgment may not
be binding on the parties who were not party before the Civil
Court, but that would not prevent a Magistrate to look into that
judgment for the purpose of passing an order for delivery of
possession under Section 146 (1) Cr.P.C. This Judgment would
not apply to the case in hand inasmuch it is not a case where the
Magistrate has passed order under Section 146 (1) Cr.P.C.
2259
taking into consideration the judgment in Suit-1885 nor it can be
said that in the said judgment, the Court has determined the
issues of ownership in favour of one or the other party at all.
This aspect as to what was the issue and what has been decided
in Suit-1885, we have already dealt with in detail while
considering the issues relating to res judicata, estoppel etc. and
need not be repeated. This judgment, in our view, has no
application to any of the issues in these cases.
2264. Ellappa Naicken Vs. K.Lakshmana Naicken &
others AIR (36) 1949 Madras 71 is not an authority for what it
has been referred. With respect to the proceedings under Section
146 Cr.P.C., the judgment only says that a suit for declaration
ought to be filed within six years from the date of the order
passed under Section 146 Cr.P.C., failing which, however, the
parties are not left remedy-less for the reason that even then a
suit for recovery of profits can be filed within the period of
limitation from the date the profits are received by receiver and
while adjudicating the rights to receive profits, the Civil Court
has to decide the title also and that decision of Civil Court
would be a determination according to which the Magistrate
would have to deliver possession of the property attached by
him under Section 146 Cr.P.C. It is in respect to this kind of
decision, the learned Single Judge says that a decision on the
title by the Civil Court in a suit pertaining to recovery of profit
will be binding and will have the force of res judicata for the
purpose of Section 146 Cr.P.C. and would practically operate as
a determination of right of the successful plaintiff to the land
under attachment as well the amount in deposit. In our view,
this judgment does not help the parties in any manner in respect
to the issues in question.
2260
2265. In Jurawan Singh & Ors. Vs. Ramsarekh Singh &
Others AIR 1933 Patna 224, the concept of possession and
dispossession with reference to the proceedings under Section
145 Cr.P.C. came to be considered for the purpose of attracting
limitation. There was two sets of cases. In the first one, about
400 bighas of land remained submerged under water for about
13-14 years and on reappearance, the dispute arose with regard
to possession. Consequently, proceedings under Section 145
Cr.P.C. commenced resulting in an order dated 15
th
December,
1916 attaching the property under Section 146 Cr.P.C. being
unable to find which party was in actual possession of the land,
and the Collector was appointed as receiver.
2266. In the second set of case about 1000 bighas of land
was involved which was also submerged and on reappearance in
1918, Section 145 Cr.P.C. proceedings were initiated which
ultimately resulted in a final order dated 08
th
July, 1931
declaring 200 bighas of land in possession of defendants-
appellants while remaining 800 bighas was attached under
Section 146 Cr.P.C.
2267. In respect to the second case, the argument raised
that the suit having been filed after more than two years from
the date of order dated 8
th
July, 1931, hence it is barred by
limitation specially provided under Article 3 Schedule 3 of the
Bengal Tenancy Act. It was contended that the land stood
'abandoned' when it was submerged under water and on its
reappearance, possession was not taken by the tenants as their
holding. Since there was no dispossession by the landlord hence
special limitation would not apply.
2268. The High Court said that an attachment made under
Section 146 is for the purpose of preventing a breach of peace,
2261
and the attachment is to last until a competent Court has
determined the rights of the parties to the land in dispute or the
person entitled to possession thereof. When a competent Court
has determined the rights of the parties or the person entitled to
possession of the land in dispute, it is the duty of the Magistrate
to withdraw the attachment and make over possession to such
party. Any act done by the Receiver appointed under Section
146 during the period of attachment cannot and ought not to
prejudicially affect the rights of the party found by the Court to
be entitled to possession of the land in dispute. It however
agreed with a Division Bench decision of the Calcutta High
Court in Brojendra Kishore (supra) that it is a continuing
wrong under Section 23 of the Act.
2269. If limitation begins to run before the date of the
order of attachment under Section 146 Cr.P.C., it is clear that
the plaintiffs in a declaratory suit cannot have a fresh start of
limitation from the date of the subsequent attachment.
2270. In the case before the Patna High Court as a matter
of fact the Court found that there was no dispossession by the
landlord before any order of attachment under Section 145 was
passed and in these circumstances the matter was decided
holding:
".The attached lands being jungle, sandy and waste lands
were not capable of actual possession by either party and
therefore there was no actual possession by the plaintiffs
and dispossession by the defendants after the re-
appearance of the lands. The entire 1,400 bighas
admittedly went under water between 1901 and 1903 and
the raiyats lost possession on account of the submersion,
and it is therefore contended that as there was no actual
2262
possession by the plaintiffs and dispossession by the
defendants, Article 3, Schedule 3, Bengal Tenancy Act, did
not apply."
".I am therefore of opinion that having regard to the fact
that there was no actual possession of the raiyati holding
by the plaintiffs after re-appearance, and no actual
dispossession by the landlords in the present case, the
special limitation of two years under Article 3, Schedule 3,
Bengal Tenancy Act, did not apply in respect of the lands
claimed in Schedule 2 of the plaint, and that the period of
limitation applicable is that provided in Article 47,
Limitation Act, and as such the suit is within time."
2271. The Apex Court in Shanti Kuamr Panda Vs.
Shakuntala Devi JT 2005 (11) SC 122 has said:
"10. Possession is nine points in law. One purpose of
the enforcement of the laws is to maintain peace and order
in society. The disputes relating to property should be
settled in a civilized manner by having recourse to law and
not by taking the law in own hands by members of society.
A dispute relating to any land etc. as defined in sub-section
(2) of S. 145 having arisen, causing a likelihood of a
breach of the peace, S. 145 of the Code authorises the
Executive Magistrate to take cognizance of the dispute and
settle the same by holding an enquiry into possession as
distinguished from right to possession or title. The
proceedings under Ss. 145/146 of the Code have been held
to be quasi-civil, quasi-criminal in nature or an executive
on police action. The purpose of the provisions is to
provide a speedy and summary remedy so as to prevent a
breach of the peace by submitting the dispute to the
2263
Executive Magistrate for resolution as between the parties
disputing the question of possession over the property. The
Magistrate having taken cognizance of the dispute would
confine himself to ascertaining which of the disputing
parties was in possession by reference to the date of the
preliminary order or within two months next before the
said date, as referred to in proviso to sub-section (4) of S.
145, and maintain the status quo as to possession until the
entitlement to possession was determined by a Court,
having competence to enter into adjudication of civil
rights, which an Executive Magistrate cannot. The
Executive Magistrate would not take cognizance of the
dispute if it is referable only to ownership or right to
possession and is not over possession simpliciter; so also
the Executive Magistrate would refuse to interfere if there
is no likelihood of breach of the peace or if the likelihood
of breach of peace though existed at a previous point of
time, had ceased to exist by the time he was called upon to
pronounce the final order so far as he was concerned."
"12. What is an eviction "in due course of law"
within the meaning of sub-section (6) of S. 145 of the
Code? Does it mean a suit or proceedings directing
restoration of possession between the parties respectively
unsuccessful and successful in proceedings under S. 145 or
any order of competent Court which though not expressly
directing eviction of successful party, has the effect of
upholding the possession or entitlement to possession of the
unsuccessful party as against the said successful party. In
our opinion, which we would buttress by reasons stated
shortly hereinafter, ordinarily a party unsuccessful in
2264
proceedings under S. 145 ought to sue for recovery of
possession seeking a decree or order for restoration of
possession. However, a party though unsuccessful in
proceedings under S. 145 may still be able to successfully
establish before the competent Court that it was actually in
possession of the property and is entitled to retain the same
by making out a strong case demonstrating the finding of
the Magistrate to be apparently incorrect."
"15. It is well settled that a decision by a Criminal
Court does not bind the Civil Court while a decision by the
Civil Court binds the Criminal Court (See Sarkar on
Evidence, Fifteenth Edition, page 845). A decision given
under S. 145 of the Code has relevance and is admissible in
evidence to show:- (1) that there was a dispute relating to a
particular property; (ii) that the dispute was between the
particular parties; (iii) that such dispute led to the passing
of a preliminary order under S. 145(1) or an attachment
under S. 146(1), on the given date, and (iv) that the
Magistrate found one of the parties to be in possession or
fictional possession of the disputed property on the date of
the preliminary order. The reasoning recorded by the
Magistrate or other findings arrived at by him have no
relevance and are not admissible in evidence before the
competent Court and the competent Court is not bound by
the findings arrived at by the Magistrate even on the
question of possession through, as between the parties, the
order of the Magistrate would be evidence of possession.
The finding recorded by the Magistrate does not bind the
Court. The competent Court has jurisdiction and would be
justified in arriving at a finding inconsistent with the one
2265
arrived at by the Executive Magistrate even on the question
of possession. Sections 145 and 146 only provide for the
order of the Executive Magistrate made under any of the
two provisions being superseded by and giving way to the
order or decree of a competent Court. The effect of the
Magistrate's order is that burden is thrown on the
unsuccessful party to prove its possession or entitlement to
possession before the competent Court."
2272. In M.P. Peter Vs. State of Kerala & others JT
2009 (13) SC 1, the Apex Court after referring the above
observations in Shanti Kuamr Panda (supra) in para 29 of the
judgment observed:
"29. The correctness of some of the observations
made therein although may be open to the question, we
need not enter into said controversy at present."
2273. However, in para 30 in M.P. Peter Peter (supra),
the Court referred following extract from Shanti Kumar Panda
(supra):
(3) A decision by a Criminal Court does not bind the Civil
Court while a decision by the Civil Court binds the
Criminal Court. An order passed by the Executive
Magistrate in proceedings under Sections 145/146 of the
Code is an order by a Criminal Court and that too based
on a summary enquiry. The order is entitled to respect and
wait before the competent Court at the interlocutory stage.
At the stage of final adjudication of rights, which would be
on the evidence adduced before the Court, the order of the
Magistrate is only one out of several pieces of evidence.
(4) The Court will be loath to issue an order of interim
injunction or to order an interim arrangement inconsistent
2266
with the one made by the Executive Magistrate. However,
to say so is merely stating a rule of caution or restraint, on
exercise of discretion by Court, dictated by prudence and
regard for the urgent/emergent executive orders made
within jurisdiction by their makers; and certainly not a tab
on power of Court. The Court does have jurisdiction to
make an interim order including an order of ad interim
injunction inconsistent with the order of the Executive
Magistrate. The jurisdiction is there but the same shall be
exercised not as a rule but as an exception. Even at the
stage of passing an ad interim order the party unsuccessful
before the Executive Magistrate may on material placed
before the Court succeed in making out a strong prima
facie case demonstrating the findings of the Executive
Magistrate to be without jurisdiction, palpably wrong or
self-inconsistent in which or the like cases the Court may,
after recording its reasons and satisfaction, make an order
inconsistent with, or in departure from, the one made by
the Executive Magistrate. The order of the Court final or
interlocutory, would have the effect of declaring one of the
parties entitled to possession and evicting therefrom the
party successful before the Executive Magistrate within the
meaning of sub-section (6) of S. 145."
2274. Dilemma on the part of the plaintiffs is further writ
large from the fact that they have also claimed title to the
property in dispute based on adverse possession. Somebody, if
has taken the plea of adverse possession, presupposes that on the
date of filing the suit he continued to be in possession of the
property in dispute otherwise an adverse possession if has
discontinued for one or the other reason before maturing in title,
2267
would dispel the claim based on adverse possession. Here we
are not discussing the ingredients of adverse possession etc. in
detail since dealing with the issues pertaining to adverse
possession, we shall discuss the meaning, scope and
ingredients etc. of adverse possession thereunder but suffice it
to say that for the purpose of issues pertaining to limitation we
can say that if a plaintiff has sought to set up a case that he has
matured his right by virtue of adverse possession, it presupposes
that he continued to be in possession on the date of filing the
suit or matured his title after completion of prescribed period
and this completely mitigate the condition for attracting Article
142 that the cause of action has arisen due to dispossession or
discontinuance of possession of plaintiff.
2275. It is contended that no party can simultaneously
plead that either the matter is governed by Article 142 or 144 for
the reason that the ingredients of both the provisions are
different. The pleadings in one or the other manner are virtually
self destructive and that is why both the provisions cannot be
pleaded simultaneously. It is contended that the plaintiff has to
exercise his option, i.e, right to elect one or the other case and
he cannot plead both simultaneously. Article 142 is applicable
for recovery of possession of immovable property when the
plaintiff's possession of the property has been taken away i.e. he
is dispossessed or had discontinued of possession. Under Article
142 the burden of proof lies upon the plaintiffs to prove their
possession within 12 years before the suit. While Article 144 is
a residuary and is applicable for recovery of possession of
immovable property or an interest therein not specifically
provided for by the Act and in that case burden of proof lies
upon the defendants to prove their possession and expiry of 12
2268
years before the suit.
2276. Reliance is placed on Chairman and M.D.,
N.T.P.C. Ltd. (supra) where the Apex Court has held that none
can be allowed to approbate and reprobate at the same time.
Relevant paras 36 and 37 of the judgment read as follows:
"36. In Halsbury's Laws of England, 4th Edition, Vol.16
(Reissue) para 957 at page 844 it is stated:
"On the principle that a person may not approbate and
reprobate a special species of estoppel has arisen. The
principle that a person may not approbate and reprobate
express two propositions:
(1) That the person in question, having a choice between
two courses of conduct is to be treated as having made an
election from which he cannot resile.
(2) That he will be regarded, in general at any rate, as
having so elected unless he has taken a benefit under or
arising out of the course of conduct, which he has first
pursued and with which his subsequent conduct is
inconsistent."
"37. In American Jurisprudence, 2nd Edition, Volume 28,
1966, Page 677-680 it is stated:
"Estoppel by the acceptance of benefits:
Estoppel is frequently based upon the acceptance and
retention, by one having knowledge or notice of the facts,
of benefits from a transaction, contract, instrument,
regulation which he might have rejected or contested. This
doctrine is obviously a branch of the rule against assuming
inconsistent positions.
As a general principle, one who knowingly accepts the
benefits of a contract or conveyance is estopped to deny the
2269
validity or binding effect on him of such contract or
conveyance.
This rule has to be applied to do equity and must not be
applied in such a manner as to violate the principles of
right and good conscience."
2277. In order to attract Article 142, the plaintiff has to
show that either he is owner based on a valid title or that he was
in possession over the property in question but has been
dispossessed in the past in a period less than twelve years. In
case, he pleads that he is the owner but the possession was
admittedly with the defendants and such possession has not
completed twelve years therefore the ownership or the title of
the plaintiff is not extinguished, in such case it is Article 144
which will apply. The ingredients of the two are apparently
different and the pleadings have to be made differently.
Tentatively it can be said that in a given case simultaneously it
may not be possible for a plaintiff to plead a case either of
Article 142 of that of Article 144.
2278. Moreover, to attract Article 142 the person who
ascertain dispossession has to prove it since the presumption in
law is in favour of continuity of possession.
2279. In Nathoo Lal Vs. Durga Prasad AIR 1954 SC 355
it was held that in order to attract Article 142 of the Limitation
Act, it is incumbent to show that dispossession took place and
more than 12 years since then had expired. The presumption in
law being in favour of continuity of possession, the person who
assert dispossession, has to be proved.
2280. To some extent, what has been argued does not
appear to be wholly without substance. It cannot be disputed
that the question of limitation is a mixed question of law and
2270
facts. The submission of Sri P.N.Mishra and other learned
counsels is that the plaint ought to have been rejected at the
threshold being ex facie barred by time. Suffice it to mention
that it is not always correct that a plaint can be rejected on the
ground of limitation since many a times, question of limitation
is not a pure question of law but a mixed question of law and
facts. In such cases, rejection of plaint ex facie is not justified. It
is always open to the parties to raise plea of limitation and the
Court shall consider the same and decide the issue even at the
time of final hearing along with other issues.
2281. In Ramesh B. Desai and others Vs. Bipin Vadilal
Mehta and others 2006 (5) SCC 638, the Court said, "A plea of
limitation cannot be decided as an abstract principle of law
divorced from facts as in every case the starting point of
limitation has to be ascertained which is entirely a question of
fact."
2282. Considering the question as to whether a plaint can
be rejected under order 7 Rule 11 (d) C.P.C. in the absence of
proper pleadings relating to limitation, in Balasaria
Construction (P) Ltd. Vs. Hanuman Seva Trust and Ors. 2006
(5) SCC 658, it was held that it cannot not be done since the
limitation is a mixed question of law and facts. Similar is the
view expressed in Narne Rama Murthy Vs. Ravula
Somasundaram and others 2005 (6) SCC 614. The above
proposition has been followed recently in Kamlesh Babu and
others Vs. Lajpat Rai Sharma and others JT 2008 (4) SC 652
with a further rider that there are cases where the question of
limitation can be decided or determined only on a mere perusal
of the plaint and in such case even without adverting to
recording of evidence etc. the issue can be decided at the very
2271
threshold or at the later stage since Section 3(1) of the
Limitation Act bars the jurisdiction of a Court to entertain a suit
which is beyond the period of limitation. The Court relied and
referred to Lachhmi Sewak Sahu vs. Ram Rup Sahu & Ors.
AIR 1944 PC 24. On this aspect, we find a consistent view of
the Apex Court in some other cases also, i.e, Kamala and
others Vs. K.T. Eshwara Sa and others AIR 2008 SC 3174;
P.T. Munichikkanna Reddy and others Vs. Revamma and
others 2007 (6) SCC 59; C. Natrajan (supra); Panchanan
Dhara and others Monmatha Nath Maity and another 2006
(5) SCC 340.
2283. The reading of the entire plaint (Suit-4) nowhere
shows an averment that the plaintiffs were dispossessed of a
property which they already possess. The case on the contrary is
that while placing idol in the building in dispute, which was a
mosque, the same has been desecrated which has the effect of
obstructing and interfering in the right of the plaintiffs of
worship thereat.
2284. However, the relief sought by the plaintiffs (Suit-4)
is not to continue to exercise their right of worship but instead a
declaration has been sought with respect to the status of the
property in dispute that it is a "mosque". Meaning thereby the
defendants have been called upon to defend an issue about the
very status of the property in dispute. A dispute of status and
nature of the building as such has been raised and a declaration
about its status that it is a mosque has been prayed for. The
plaintiff's cause of action and relief, therefore, are quite
divergent. At several stages some statements here and there in
the plaint and replication made endeavouring to bring the suit in
question within the period of limitation. The counsel for the
2272
plaintiffs have contended that this is an assumption on the part
of the defendants that the plaintiffs are dispossessed of the
property in question and, therefore, it is this assumption which
will attract Article 142 of L.A. 1908 in this case.
2285. We, however, find no substance in the submission.
Pleadings have to be clear, specific and unambiguous. Probably
to clear the ambiguity in the pleadings, statement was made
under Order X, Rule 2 on behalf of plaintiffs (Suit-4) through
their counsel explaining that the entire premises, marked as
ABCD in the map appended to the plaint, is the disputed
premises and it is a mosque which is an Islamic structure has no
other structures except "Chabutara" called as "Ram Chabutara"
on the south-east side in the outer courtyard and therefore, it
should be declared as a mosque.
2286. The evidentiary value of the statement under Order
X, Rule 2 C.P.C. has been considered in catena of decisions.
This Court in Miss Talat Fatima Hasan Vs. His Highness
Nawab Syed Murtaza Ali Khan Sahib Bahadur and others
AIR 1997 All. 122 in para 42 has said:
"A statement of a party, its counsel or agent under
Order X, Rule 2 C.P.C. is for all practical purposes a part
of pleading and is binding on the party, who makes it or on
whose behalf it is made......"
2287. To the same effect is the decision in Balmiki Singh
Vs. Mathura Prasad & Ors. AIR 1968 All. 259.
2288. It is contended by the learned counsel for plaintiffs
(Suit-4) that though the objection regarding limitation has been
raised, but no fact has been pleaded to show as to how the case
is barred by limitation. It is, therefore, contended that the
declaration by the plaintiffs in the plaint that the cause of action
2273
is continuing one must be deemed to be admitted and the Court
is not required to look into the matter further.
2289. This submission is evidently misconceived. Section
3 of the Limitation Act imposes an obligation upon the Court to
dismiss a suit which has been filed beyond the period prescribed
in the statute. The Court cannot admit a case in the absence of
the plea of limitation raised by the defendants though the suit
was filed beyond the period prescribed in the statute. We have
already referred in this regard Maqbul Ahmad Vs. Onkar
Pratap Narain Singh, AIR 1935 PC 85. The Apex Court has
also taken the same view in Jetmull Bhojraj Vs. The
Darjeeling Himalayan Railway Co. Ltd. And others AIR 1962
SC 1879; Rama Shankar Singh & another Vs. Shyamlata
Devi & another others AIR 1970 SC 716 and Rajendra Singh
& others Vs. Santa Singh AIR 1973 SC 2537.
2290. In Manindra Land And Building Corporation Ltd.
Vs. Bhutnath Banerjee and others AIR 1964 SC 1336, it was
held that the Court has no choice in the matter and the Court is
bound to dismiss the suit which is barred by limitation. The
burden of proof in the matter of limitation lie upon the plaintiff.
It is only when the prima facie plaintiff shows that his case is
within limitation, the onus may shift upon the defendants to
prove otherwise.
2291. In District Basic Education Officer and another
Vs. Dhananjai Kumar Shukla and another (2008) 3 SCC 481,
it was held that even if no counter affidavit is filed, on the legal
issues, the Court has to apply its mind and consider the matter.
If a fact is not disputed or expressly admitted, the same in terms
of Section 56 of the Evidence Act need not be proved but that
does not mean that what constitute ultimately an issue

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of the 3rd couplet the poet gives Babur the

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