Dr. Ishrat Husain, MuslimMirror.com
The dispute had been noticed in the records of different government offices since 1855 when a riot took place between Hindus and Muslims. After the said riot, a bifurcation was made of the disputed land by placing a brick and grill wall of 7 or 8 feet height. The railing divided the entire premises in two almost equal parts. The railing/ grill was placed either in 1856 when Awadh was annexed by the Britishers or immediately after 1857 war of independence. This was done with the intention that Muslims must use the inner portion and Hindus the outer portion so that chances of quarrel between them were minimised. Initially there was only one door in the boundary wall towards East, however in or about 1877 another door was opened towards North by the government authorities, which was given under the control and management of Hindus in spite of severe objection by other party.
Rival claims of both the parties over the premises in dispute was judicially noticed in 1885. Suit No.61/280 of 1885 was filed by Mahanth Raghubar Das, against Secretary of State for India. The suit was instituted on 29.01.1885. It was observed that the need of the hour and the requirement of justice was not to grant the relief which had been claimed and the suit was dismissed. Against the said judgment, Civil Appeal No.27 of 1886 was filed, which was disposed of by Mr. F.E.A. Chamier, District Judge, Faizabad on 18.03.1886. This appeal was also dismissed. Against this Appeal, Second Civil Appeal No.122 of 1886 was filed, which was dismissed by the Court of Judicial Commissioner, Oudh on 01.11.1886. The penultimate sentence of the judgment in second appeal was that “There is nothing whatever on the record to show that plaintiff is in any sense the proprietor of the land in question.” The Executive authorities had been persistently refused encroachments and absolutely forbidden any alteration of the ‘status quo’. This position continued until 23.12.1949.
In the morning of 23rd December, 1949 at about 7 o’clock a crowd of 50 or 60 persons had broken the locks, which were put on the compound of the Babri Mosque and by climbing the walls by ladders illegally entered the mosque and had placed the idols and had written on the walls inside and outside Sita Ram Ji etc. in red and yellow. As per records Abhay Ram Dass, Ram Shukul Dass, Sheo Darshan Dass and 50 or 60 other persons had committed riot, trespassed into the mosque and installed an idol in the mosque and had desecrated the mosque.
On 29th December, 1949, an order under Section 145, Criminal Procedure Code was issued by Additional City Magistrate, Faizabad-cum-Ayodhya and simultaneously attachment order was also passed treating the situation to be of emergency. The disputed site was directed to be given in the receivership of Sri Priya Datt Ram, Chairman, Municipal Board. Thereafter some other suits, again popularly known as title suits were instituted before Civil Judge, Faizabad on 16.01.1950, 17.12.1959 and 18.12.961 respectively. State of U.P. filed an application in 1987 in the Allahabad High Court under Section 24, Civil Procedure Code, 1908, seeking withdrawal of those suits, which were pending at that time before Munsif Sadar Faizabad to the High Court. The suits were withdrawn to the Allahabad High Court and directed to be heard by a Full Bench. High Court delivered its judgments on 30th September 2010 and now this judgment is under challenge before the Supreme Court and the hearing is going on these days.
Is it truly a civil suit? Civil Procedure Code, 1908 does not define civil suit or suit of civil nature. But when we go through section 9 and its explanation 1, the expression suit of civil nature cover private rights and obligations of a citizen. Political and religious disputes are not covered by that expression. A suit in which the principal question relates to caste or religion is not a suit of civil nature. But if the principal question in a suit is of a civil nature (the right to property or to an office) and the adjudication incidentally involves the determination relating to a caste question or to religious rights and ceremonies, it does not cease to be suit of a civil nature and the jurisdiction of a civil court is not barred. As the suits were withdrawn under section 24 of Civil Procedure Code (CPC). So, other provisions of CPC should have also been equally applied. Section 11 and its explanation IV provide about res judicata and constructive res judicata as follows:
Section11. Res judicata. – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation IV. – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
So, section 11 bars a second suit between the same parties for the same subject matter. This controversy or civil suit had already been decided by a court of original and appellate jurisdiction. Should principles of res judicata be applied is a matter of arguments. However, these principles were argued at High Court but could hardly be appreciated.
In case the said principles are not applied then some provisions of Indian Evidence Act, 1872 should essentially be invoked. Section 40 of Indian Evidence Act, 1872 provides that previous judgments relevant to bar a second suit or trial.—The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial. This section lays down that when once there has been a judgement about a fact and the law provides that when there has been such a judgment, no subsequent proceedings would be stated, the previous judgement relevant and can be proved. For a previous judgment being admissible under this section the parties must be the same or their representative-in-interest. Does judgment of 1885 bar subsequent suit filed in 1949, 1950 and 1961?
Section 42 says that the Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. Under section 42 the judgment are admitted as a piece of evidence. Is judgment of 1885 admissible under Section 42 of the Indian Evidence Act? Generally, limitation period for filing suit arise at cause of action. It is difficult to that say when did cause of action arise in the Ayodhya case. The Indian Limitation Act 1963 prescribe the limitation period for filing the suits. Is limitation period complied with is also a question?
Possession is the most difficult conception of law. Since very early times attempts have been to analyse and theorise it and also various theories have been given about it. Generally, the courts in their decisions on possession have not followed any preconceived theory. Possession is an evidence of ownership.
Section 110 of the Indian Evidence Act, 1872 says that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. The possession of thing is a good title against the whole world except the real owner. Therefore, it is said that possession is nine points of the law. Long possession creates ownership by prescription. Possession is the basis of obtaining legal remedies. There are four modes of acquisition of property namely possession, prescription, agreement and inheritance. Only possession and prescription can be discussed in the context of Ayodhya dispute. Possesion follows the title. The possession of property creates tittle in it. Occupatio and accessio in Roman law and similar provision of Hindu Law are the cases where title was first acquired by possession. Occpatio was acquisition of title in a res nullius. The person who first reduced into possession an ownerless object acquired title in it. The accessio was the acquisition of title in those objects of which there was a previous owner.
Salmond a renowned jurist, says that a legal personality is any subject matter other than a human being to which law attributes personality. Idol is not recognised as legal person in western jurisprudence. In India, idol is considered to be a juristic person. It owns property. It could sue and could be sued. But it is treated as minor and pujari or somebody else act on its behalf as its guardian. However with regard to mosque, the view of different High Courts and Supreme Court is divided. Some Court held it juristic person but not others. Legal personality is attained when law recognises it. An idol is in the position of a minor is confined only to the aspect that just as minor himself cannot file suit and during his minority if a suit is to be filed, it can be filed only through his guardian. Similarly idol cannot file suit by itself and it can be filed only through a worshipper. Should this observation be extended to mean that for all other purposes also an Idol is a minor (a perpetual minor). In Ayodhya case, too one of the parties is a minor.
In a land mark judgement in Ismail Faruqi v. Union of India the five judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s opinion on whether a temple originally existed at the site where the Babri Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favoured one religious community and therefore, does not required to be answered. The Court upheld the validity of the acquisition of 67 acres of land in Ayodhya. But it allowed revival of title suit pertaining to the disputed site pending before the Allahabad High Court at the time. So the Presidential reference was not maintainable. Allahabad High Court may have considered the judgement delivered by the constitutional bench of the Supreme Court. Anyway, it was a title suit in High Court but in its judgement it became partition suit is a question for consideration.
It is a big question whether a court can decide a matter of faith. It is better to ascertain first whether a matter of faith can be decided by a court of law before deciding the case itself. If it is a matter of faith, can matter of faith be decided by any court? It is a question of faith, possession or title is difficult to say? The nature of Ayodhya dispute case is entirely different as dynamics of the case kept changing from the beginning. At a time it was a dispute of possession of some part of the present disputed site which ultimately turned into the issue of ownership in 1950 and finally after 1992 it became purely an issue of faith to a section of country.
Courts decide cases on the facts. Several facts of this case have been completely destroyed. They are not in existence after 1992. There were some inscriptions at the disputed site. Now, structure is no more there. Those inscription were very much relevant and could have been helpful in deciding the case. At present, the Supreme will have to rely on all that whatever has been observed by the High Court. Pillars photos of demolished structure were made exhibits in the pleadings for the perusal of High Court. One party claims that those pillars were having idols images on lower and upper parts of pillars. Having seen those photos, there is confusion whether they are images of idols or flowers as they were already defaced before 1992. If Supreme Court will want to remove its doubt, it will perhaps be impossible as they are no more in existence except photos.
Disputed site was excavated by the Archaeology Survey of India (ASI) on the order of High Court. But ASI report had been drastically attacked during arguments in the High Court. It was alleged that the ASI had not followed the set norms of archaeology. So many doubts have been created over excavation report by the archaeologists and historians. Would it be possible for the Supreme Court to get the site again excavated? .
It is difficult to understand the meaning of place of birth. Does it mean a particular place in a city, town and village or the city town and village itself? Though High Court is almost clear on this point that it simply means locality. In this modern era mostly things are kept in records even then one can hardly tell about all details of his birth, moreover, it would be difficult for anybody to tell about his exact place of birth as to which place in a house or in room, he was born. Whether it means the area constituting Deity equal to a small room or to a house or the entire locality, city, province or country, as the case may be.
One of the witness in the High Court stated that “In my opinion, only one idol of Lord Ramlala was installed at the disputed premises and that idol of a period earlier than the appearance of Lord Ramlala. I have no knowledge as to what happened when the commander of Babar carried out invasion to convert this temple into mosque and even demolished it and also removed the idol. The idol of Lord Shri Ramlala, which existed at time of the invasion by Babar and which had been removed, did not re-appear till the appearance of the deity Himself and till that time people used to have darshan of the vacant place.” It is difficult to deny that such statements may have influenced the arguments before the Hon’ble High Court and therefore in para 4407at page no. 4964, it observed that “once we find that by way of faith and traditions, Hindus have been worshipping the place of birth of Lord Rama at the site in dispute, we have no reason but to hold in a matter relating to such a kind of historical event that for all practical purposes, this is the place of birth of Lord Rama.” After this nothing remains to be decided further.
It is well established and accepted by the high court that it is a registered wakf property. Whether it was a Shia Wakf or Sunni Wakf is not relevant as held by the Allahabad High Court. For a moment if it is not a wakf then as per the Revenue Settlements of 1861, 1893-94 and 1936-37, it was a nazul land. However, UP government did not contest the case is a question. There is even a lot of contradictions among historians like P.Carneige, Joseph Tieffenthaler, Sir George Grierson and Max Arthur Macauliffe on the matter. And this contradiction goes to the extent mentioning that the demolition of temple was got done by Aurangzeb. As a matter of fact Budhists had also their religious, political and cultural linkage to Ayodhya. (EOM)
(Associate Professor of Law, National Law University, Assam, Hajo Road, Amingaon, Guwahati-781031. He can be contacted at firstname.lastname@example.org )